In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00146-CR
________________________
THE STATE OF TEXAS, APPELLANT
V.
JESSE CASTRO, APPELLEE
On Appeal from the County Court
Hale County, Texas
Trial Court No. 2011C-750; Honorable Bill Coleman, Presiding
September 23, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, the State of Texas, appeals the trial court’s order suppressing
statements and actions by Appellee, Jesse Castro, at the time of and subsequent to his
arrest for driving while intoxicated, 2nd offense.1 The State asserts the trial court
abused its discretion by (1) requiring direct evidence of a driving while intoxicated
offense rather than probable cause prior to the issuance of a search warrant and (2)
interpreting the officer’s affidavit in support of the search warrant in a hyper-technical
1
See TEX. PENAL CODE ANN. §§ 49.04(a) and 49.09(a) (West Supp. 2014).
manner. We reverse the trial court’s order and remand for further proceedings
consistent with this opinion.
BACKGROUND
In November 2011, an information issued alleging Appellee operated a motor
vehicle in a public place while intoxicated by not having the normal use of mental or
physical faculties by reason of the introduction of alcohol into the body. The information
also alleged Appellee had previously been convicted of a driving while intoxicated
offense. In January 2012, Appellee filed a motion to suppress evidence related to any
statements he made to law enforcement, field sobriety tests results and all laboratory
reports related to Appellee’s blood, which was drawn pursuant to a search warrant.
Specifically, Appellee alleged his blood was seized by an invalid search without
probable cause pursuant to a probable cause affidavit that contained inaccurate
statements or falsehoods by the affiant.2 Following a hearing on Appellee’s motion to
suppress, the trial court found the affidavit in support of the search warrant contained
“errors in fact” concerning (1) whether Appellee had operated a motor vehicle in a public
place and (2) whether Appellee had performed any field sobriety tests, because those
facts were “not supported by personal observation.” Based on those findings, the trial
court granted Appellee’s motion to suppress.
2
Appellee’s Motion to Suppress Evidence does not contest the facts of the original encounter and
does not contend that the encounter required reasonable suspicion. An encounter is a consensual
interaction between a citizen and a police officer that does not require reasonable suspicion and does not
implicate constitutional rights. See Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d
229 (1983).
2
AFFIDAVIT IN SUPPORT OF SEARCH WARRANT
The affidavit in question was offered by Officer Matt Brightbill to Magistrate Karen
Davis in Hale County. The affidavit is on a printed form3 with blanks filled in by hand
(italic portions hereinbelow). The affidavit states, in pertinent part, as follows:
There is in HALE County, Texas, a suspect person described and located
as follows: Castro, Jesse; . . . presently in custody at Abernathy P.D.,
located at 811 Avenue D, Abernathy, Texas.
* * *
3. It is the belief of Affiant that said suspected party has possession of
and is concealing the following property: human blood.
Said property constitutes evidence that the offense described in paragraph
4 below was committed and that said suspected party committed the
offense described.
4. It is the belief of the Affiant, and he/she [he circled] hereby charges and
accuses that on or about the 3rd day of October, 2010, that the above
described suspected party did then and there operate a motor vehicle in a
public place while intoxicated by not having the normal use of mental or
physical faculties by reason of the introduction of alcohol, controlled
substance, drug, or a dangerous drug into the body.
5. On the 3rd day of October, 2010, I made a traffic stop on a a (sic) Gold
Chevy S-10 truck-2 door which was being driven by Castro, Jesse the
same person identified in paragraph 1 above, for _____ [reason for stop
not described]. While talking to the suspected party, I detected alcohol on
his breath and suspect refused any field sobriety tasks. Suspect had
glassy eyes and slurred speech.
I then asked the suspected party to submit to certain field sobriety tests,
and he/she [he circled] refused/agreed [refused circled]. Marc Owen
conducted the horizontal gaze nystagmus test, and I/he/she observed
_____ [nothing circled; nothing in affidavit filled in for horizontal gaze
nystagmus test, walk and turn test or one-legged stand test] . . . .
After observing the suspected party during this traffic stop and his/her [his
circled] performance on the field sobriety tests, I determined that he/she
[he circled] was intoxicated, and I placed him/her [him circled] under arrest
for Driving While Intoxicated. I then transported the suspected party to
3
The use of form affidavits has been criticized by the Texas Court of Criminal Appeals. See
Faulkner v. State, 537 S.W.2d 742, 744 (Tex. Crim. App. 1976).
3
Hale County Jail where I requested a sample of his/her [his circled] breath
which suspect refused to provide.
Wherefore, Affiant asks for a search warrant that will authorize Affiant of
his/her [his circled] agent to search the person of the suspected party for
the property described above and seize the same as evidence that the
offense described was committed and that suspected party committed
said offense.
Further, Affiant asks for issuance of an order to appropriate third parties
directing them to assist Affiant in the execution of said warrant.
Based upon this affidavit, Magistrate Davis issued a search warrant. The search
warrant authorized Officer Brightbill to transport Appellee to a hospital for the purpose of
a blood draw by qualified medical personnel.
SUPPRESSION HEARING
At the suppression hearing, Marcus Owen, an officer with specialized driving
while intoxicated training, testified that, on October 3, 2010, he was off-duty when he
stopped and approached Appellee to assist him with changing a flat tire. Appellee was
outside his pickup attempting to get a spare tire out of the truck bed. When Officer
Owen approached Appellee, he smelled alcohol. He also observed Appellee was
stumbling, having a hard time maneuvering around the pickup, slurring his speech, had
bloodshot/watery eyes, and emitted a strong odor of alcoholic beverage from his mouth
and person. There was an open container in the driver’s compartment of the pickup.
Officer Owen asked Appellee to perform field sobriety tests and Appellee refused.
Owen also observed Appellee’s pickup had left the roadway, travelled into an
open field and struck a tree. He testified the damage to Appellee’s windshield was
consistent with his having struck the tree. When he attempted to perform a horizontal
gaze nystagmus (HGN) test, Appellee had a hard time following the stimulus and was
4
uncooperative. Owen then called for other officers to perform a driving while intoxicated
investigation, and when Officer Brightbill arrived, he informed Officer Brightbill of his
observations and interactions with Appellee.
Officer Brightbill testified that when he arrived at the scene of the accident, no
one was present except Officer Owen and Appellee. There was no evidence to suggest
anyone but Appellee was driving the pickup or had left the scene. The pickup had been
driven over a curb and struck a tree. Officer Brightbill testified he noticed wood fibers in
the windshield. He also testified Appellee was unsteady on his feet and attempting to
retrieve his spare tire. He detected a strong odor of alcoholic beverage on Appellee’s
breath and person. Appellee’s speech was slurred and his eyes bloodshot/watery. He
noticed there was damage to Appellee’s pickup, i.e., a baseball size hole in his front
right tire, a missing passenger side mirror and his windshield along the door frame was
completely shattered. Appellee refused to perform any field sobriety tests. Officer
Brightbill arrested Appellee for driving while intoxicated. At jail, Appellee refused to give
a breath test. Thereafter, Officer Brightbill obtained a warrant from Magistrate Davis,
transported Appellee to a hospital and obtained a blood draw.
Officer Brightbill testified he did not make a traffic stop and did not perform any
field sobriety tests as represented in the affidavit. He indicated the affidavit form was a
standard form and it was routine to fill out the form indicating the driver performed field
sobriety tests. He testified he tried to get Appellee in the position to perform an HGN
test but he refused.
At the hearing’s conclusion, the trial court granted Appellee’s motion to suppress
noting there was no direct evidence or testimony Appellee operated the pickup, field
5
sobriety tests were not completed and there was no traffic stop. The trial court
concluded the information in the affidavit was sufficiently inaccurate so as to negate
probable cause for the issuance of a search warrant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In its Findings of Fact and Conclusions of Law, the trial court determined there
was insufficient probable cause to arrest Appellee for a driving while intoxicated
violation because there was no evidence Appellee had been driving the pickup. The
trial court also found that Officer Brightbill’s testimony during the suppression hearing
failed to substantiate the facts in his affidavit, i.e., he failed to state he observed
Appellee operate a motor vehicle, heard Appellee admit to driving the pickup, spoke
with someone who witnessed Appellee drive the pickup, or performed field sobriety
tests. The trial court concluded that, based on Officer Brightbill’s testimony, there were
insufficient facts to support the issuance of a search warrant to obtain a sample of
Appellee’s blood and granted Appellee’s motion to suppress. This appeal followed.
STANDARD OF REVIEW
The Fourth Amendment to the United States Constitution requires that “no
warrants shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.” U.S. CONST. AMEND. IV; TEX. CONST. ART. I, § 9. See TEX. CODE CRIM. PROC.
ANN. art. 18.01(j) (West Supp. 2014).4 Under article 18.01, a search warrant may be
4
Because neither party has explained to this Court how the Texas constitution provides greater
protection regarding search warrants than the United States Constitution, we examine the State’s issues
together. Hogan v. State, 329 S.W.3d 90, 93 n.5 (Tex. App.—Fort Worth 2010, no pet.).
6
obtained from a magistrate only after submission of an affidavit setting forth substantial
facts establishing probable cause. Art. 18.01(b). Probable cause exists if, under the
totality of circumstances set forth in the affidavit before the magistrate, there is a “fair
probability” that contraband or evidence of a crime will be found in a particular place at
the time the warrant is issued. Moreno v. State, 415 S.W.3d 284, 287 (Tex. Crim. App.
2013). “The probable cause standard is not technical, it is practical, and deals with
probabilities, not hard certainties.” State v. Cantu, 785 S.W.2d 181, 183 (Tex. App.—
Houston [14th Dist.] 1990, pet. ref’d) (emphasis in original).
The magistrate’s sole concern should be probability when making a probable
cause determination as “[the] magistrate is not bound by such finely tuned standards as
proof beyond a reasonable doubt or by a preponderance of the evidence . . . .”
Rodriquez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2003). The standard in
determining whether an affidavit established probable cause is “flexible and
nondemanding.” Id.
The magistrate may interpret the affidavit in a non-technical, common-sense
manner and may draw reasonable inferences from the facts and circumstances
contained within its four corners. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App.
2010). Although in a particular case it may not be easy to determine when an affidavit
demonstrates the existence of probable cause, the resolution of doubtful or marginal
cases in this area should be largely determined by the preference to be accorded
warrants. Id.
In addition, the Texas Code of Criminal Procedure will be cited as “art. _____” throughout the
remainder of this memorandum opinion.
7
Reviewing courts give great deference to a magistrate’s determination of
probable cause and consider reasonable inferences that provide a substantial basis for
the magistrate’s probable cause determination. State v. Jordan, 342 S.W.3d 565, 568-
69 (Tex. Crim. App. 2011). There are no credibility determinations to be made in
examining the sufficiency of an affidavit to establish probable cause because our review
is confined to only the four corners of the affidavit. State v. Five Thousand Five
Hundred Dollars, 296 S.W.3d 696, 705 (Tex. App.—El Paso 2009, no pet.). Thus
statements made in a suppression hearing do not factor into the probable cause
determination. State v. Hill, 299 S.W.3d 240, 243 (Tex. App.—Texarkana 2009, no
pet.).
We conduct a de novo review and apply the same standard that the trial court
applied when it evaluated the magistrate’s decision to issue the search warrant on the
basis of the affidavit. Burke v. State, 27 S.W.3d 651, 654 (Tex. App.—Waco 2000, pet.
ref’d). “The issue is not whether there are other facts that could have, or even should
have, been included in the affidavit; we focus on the combined logical force of facts that
are in the affidavit, not those that are omitted from the affidavit.” Rodriguez v. State,
232 S.W.3d 55, 62 (Tex. Crim. App. 2007) (quoting United States v. Ventresca, 380
U.S. 102, 108-09, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)).
ANALYSIS
While Officer Brightbill’s affidavit could have provided greater detail, in according
deference to the magistrate’s determination, we cannot agree with the trial court that it
failed to establish a substantial basis for the magistrate’s probable cause determination
that Appellee committed the offense of driving while intoxicated and that his blood could
8
provide evidence of that offense. The magistrate could reasonably infer from the
statements in the affidavit that Appellee was detained on a public roadway for a driving
while intoxicated investigation.5 The affidavit indicates Appellee was, at the least, in the
presence of a vehicle that had been operated in a public place when the investigation
was undertaken. Appellee smelled of alcoholic beverage, his eyes were glassy and his
speech was slurred. In addition, he refused to participate in any field sobriety tests, and
after he was arrested and transported to jail, he refused to give a blood sample.
The facts contained within Officer Brightbill’s affidavit, along with the reasonable
inferences from those facts, allowed the magistrate to conclude there was probable
cause to sign the search warrant. See Hogan v. State, 329 S.W.3d 90, 96 (Tex. App.—
Fort Worth 2010, no pet.) (probable cause where appellant smelled of alcohol, his eyes
were bloodshot/watery, he was unsteady, he refused a breath specimen and there was
no one other than appellant at the scene of the accident, i.e., no evidence to create
doubt whether appellant drove the car). See also Munoz v. State, No. 02-12-00513-CR,
2013 Tex. App. LEXIS 9912, at *10-12 (Tex. App.—Fort Worth Aug. 8, 2013, no pet.)
(mem. op., not designated for publication) (probable cause where appellant refused
breath test, smelled of alcohol, had watery/dilated eyes, was unsteady and refused to
perform field sobriety tests).
Apparently, the trial court believed that, in the absence of direct evidence
Appellee was driving the pickup, probable cause could not exist to issue the warrant.
Direct evidence of driving is unnecessary here where there are sufficient facts in the
5
Detention and questioning by police officers during a driving while intoxicated investigation,
without more, is not custody. Rodriguez v. State, 191 S.W.3d 428, 440 (Tex. App.—Corpus Christi 2006,
pet. ref’d).
9
affidavit for the magistrate to infer Appellee was driving. 6 See Jordan, 342 S.W.3d at
567 n.8. Furthermore, that Officer Brightbill mistakenly indicated on the affidavit that he
had executed a traffic stop and performed sobriety tests when he further indicated
Appellee refused those tests was not fatal to the issuance of the search warrant. See
Five Thousand Five Hundred Dollars, 296 S.W.3d at 705 (“A misstatement in an
affidavit that is the result of simple negligence or inadvertence, as opposed to reckless
disregard for the truth, will not make a warrant invalid.”). See also Dancy v. State, 728
S.W.2d 772, 782-83 (Tex. Crim. App. 1987) (“A misstatement, as opposed to reckless
disregard for the truth, will not render invalid the warrant based on it.”); Kelly v. State,
413 S.W.3d 164, 174 (Tex. App.—Beaumont 2012, no pet.) (“While the assumption
exists that the evidence supporting a probable cause finding is truthful, the Fourth
Amendment does not mandate that every fact in a supporting affidavit be necessarily
correct.”). Here, the trial court did not find Officer Brightbill’s statements in the affidavit
evidenced a reckless disregard for the truth as opposed to being negligent or
inadvertent.
Moreover, that Officers Owen and Brightbill arrived at the scene after the pickup
jumped the curb, entered an open field and struck a tree rather than making a traffic
stop, as stated in the affidavit, is of no moment. This case is about probable cause for a
blood draw, not whether Officers Owen and Brightbill had reasonable suspicion to
detain Appellee. See Hughes v. State, 334 S.W.3d 379, 387 (Tex. App.—Amarillo
2011, no pet.) (“The failure to detail the operative facts of the initial stop is not fatal to
the magistrate’s overall determination that probable cause to issue the warrant existed
6
The issue whether Appellee was driving the pickup may be tested at trial where the State must
prove beyond a reasonable doubt each element of a driving while intoxicated offense, including the
operation of a motor vehicle in a public place.
10
because the issue is not reasonable suspicion to detain appellant, rather it is probable
cause to authorize the issuance of a search warrant following the detention.”). 7
For these reasons, we hold that the facts contained in Officer Brightbill’s affidavit,
along with reasonable inferences from those facts, allowed the magistrate to conclude
there was probable cause to sign the search warrant. See Rodriguez, 232 S.W.3d at
61. The affidavit and warrant complied with the United States and Texas constitutions
and article 18.01, therefore, we find the trial court erred in granting Appellee’s motion to
suppress. The State’s first issue is sustained, and its remaining issue is pretermitted.
TEX. R. APP. P. 47.1.
CONCLUSION
The trial court’s order granting Appellee’s motion to suppress is reversed and this
case is remanded for further proceedings consistent with this memorandum opinion.
Patrick A. Pirtle
Justice
Do not publish.
7
Despite the fact that Appellee’s motion to suppress did not question the legality of his arrest and
the issue was not litigated at the hearing on Appellee’s motion, the trial court concluded in its Conclusions
of Law that Appellee’s arrest was illegal. Based upon the facts known to Officer Brightbill at the time of
Appellee’s arrest, we find Officer Brightbill had probable cause to arrest Appellee for driving while
intoxicated on October 3, 2010.
11