COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00513-CR
DAVID MUNOZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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In one issue, appellant David Munoz appeals his conviction for driving
while intoxicated (DWI). 2 He contends that the trial court erred by denying his
motion to suppress blood evidence that the police obtained pursuant to a search
warrant after arresting him. We affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 49.04(a) (West Supp. 2012) (“A person
commits an offense if the person is intoxicated while operating a motor vehicle in
a public place.”).
Background Facts
On an early winter morning in 2012, Fort Worth Police Department Officer
Jason Back was monitoring traffic while patrons were leaving downtown bars.
Back stopped appellant’s red Corvette after he observed the driver perform a
“short little burnout” and change lanes without signaling. 3 After approaching the
car, which appellant was driving, Officer Back immediately smelled alcohol on
appellant’s breath. When Officer Back asked appellant if he had been drinking
that night, appellant admitted to having consumed three beers at the Pour
House. Officer Back had appellant exit the vehicle and observed that appellant
had watery and dilated eyes, spoke loudly, and had trouble balancing. Appellant
showed six clues of intoxication on a horizontal gaze nystagmus (HGN) field
sobriety test, and he refused to perform the walk-and-turn and one-leg-stand
tests.
Officer Back arrested appellant for DWI. He then read the statutory
warning to appellant about providing a breath specimen, and appellant refused to
give one. When appellant refused to give a blood specimen as well, Officer Back
3
Officer Back also stated in his affidavit and testified at the suppression
hearing that the vehicle’s tail lights were off while he observed the “burnout” and
lane change. However, video evidence reveals that either the tail lights or brake
lights were on by the time of the stop. Whether the tail lights were on or off
before the stop, Officer Back had probable cause to stop appellant because
changing lanes without a signal is a traffic violation. See Tex. Transp. Code Ann.
§ 545.104(a) (West 2011); Anderson v. State, 701 S.W.2d 868, 873 (Tex. Crim.
App. 1985), cert. denied, 479 U.S. 870 (1986); Nava v. State, No. 08-11-00127-
CR, 2012 WL 3364230, at *3 (Tex. App.—El Paso Aug. 15, 2012, no pet.) (not
designated for publication).
2
took appellant to jail and typed a search warrant affidavit seeking to draw
appellant’s blood. A municipal magistrate read the affidavit and signed the
warrant, and Officer Back took appellant to a hospital, where a medical
professional took appellant’s blood sample. 4
The State charged appellant with DWI. Appellant filed a motion to
suppress evidence related to his blood draw by challenging both the validity of
the traffic stop and the sufficiency of Officer Back’s affidavit. After an evidentiary
hearing, the trial court made findings of fact and conclusions of law and denied
appellant’s motion. About two months later, appellant pled guilty. The trial court
fined him $110.90, suspended his driver’s license for six months, and sentenced
him to three days in jail.
Denial of Appellant’s Motion to Suppress
In one issue, appellant argues that the trial court erred by denying his
motion to suppress because the affidavit used to procure a search warrant for his
blood did not contain enough facts to demonstrate probable cause that he had
committed DWI.
Standard of Review and Applicable Law
The police may obtain a defendant’s blood for a DWI investigation through
a search warrant. Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002);
see Tex. Code Crim. Proc. Ann. art. 18.01(j) (West Supp. 2012); Hogan v. State,
4
The parties did not present evidence during the suppression hearing
about appellant’s blood test results.
3
329 S.W.3d 90, 93 (Tex. App.—Fort Worth 2010, no pet.). A search warrant
cannot issue unless it is based upon probable cause as determined from the four
corners of an affidavit. U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code
Crim. Proc. Ann. art. 18.01(b) (“A sworn affidavit . . . establishing probable cause
shall be filed in every instance in which a search warrant is requested.”); Nichols
v. State, 877 S.W.2d 494, 497 (Tex. App.—Fort Worth 1994, pet. ref’d). When
reviewing a magistrate’s decision to issue a warrant, we apply a highly
deferential standard in keeping with the constitutional preference for a warrant.
Rodriguez v. State, 232 S.W.3d 55, 59–60 (Tex. Crim. App. 2007) (“[E]ven in
close cases we give great deference to a magistrate’s determination of probable
cause to encourage police officers to use the warrant process rather than making
a warrantless search and later attempting to justify their actions by invoking some
exception to the warrant requirement.”); Swearingen v. State, 143 S.W.3d 808,
810–11 (Tex. Crim. App. 2004); Emenheiser v. State, 196 S.W.3d 915, 924–25
(Tex. App.—Fort Worth 2006, pet. ref’d) (op. on reh’g).
Under the Fourth Amendment and the Texas constitution, an affidavit
supporting a search warrant is sufficient if, from the totality of the circumstances
reflected in the affidavit, the magistrate was provided with a substantial basis for
concluding that probable cause existed. Swearingen, 143 S.W.3d at 810–11;
Nichols, 877 S.W.2d at 497. Probable cause exists to issue an evidentiary
search warrant if the affidavit shows facts and circumstances to warrant a person
of reasonable caution to believe that the criteria set forth in article 18.01(c) of the
4
code of criminal procedure have been met. Tolentino v. State, 638 S.W.2d 499,
501 (Tex. Crim. App. [Panel Op.] 1982); see Tex. Code Crim. Proc. Ann. art.
18.01(c). The affidavit must set forth facts establishing that (1) a specific offense
has been committed, (2) the item to be seized constitutes evidence of the offense
or evidence that a particular person committed the offense, and (3) the item is
located at or on the person, place, or thing to be searched. See Tex. Code Crim.
Proc. Ann. art. 18.01(c); Tolentino, 638 S.W.2d at 501.
A reviewing court should not invalidate a warrant by interpreting the
affidavit in a hypertechnical manner. See Rodriguez, 232 S.W.3d at 59;
Tolentino, 638 S.W.2d at 501 (explaining that “[n]o magical formula exists” for an
affidavit’s explanation of probable cause); Nichols, 877 S.W.2d at 498. Rather,
when a court reviews an issuing magistrate’s determination, the court should
interpret the affidavit in a common sense and realistic manner, recognizing that
the magistrate may draw reasonable inferences. See Rodriguez, 232 S.W.3d at
61 (“When in doubt, we defer to all reasonable inferences that the magistrate
could have made.”); Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006);
Nichols, 877 S.W.2d at 498. “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 the facts that are in the affidavit, not those that are
omitted from the affidavit.” Rodriguez, 232 S.W.3d at 62; see Nichols, 877
S.W.2d at 498 (“A warrant is not invalid merely because the officer failed to state
5
the obvious.”). The magistrate’s determination should prevail in doubtful or
marginal cases. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010).
Thus, here, we review the affidavit to determine if it provided a substantial
basis for the magistrate to determine that probable cause existed to issue a
search warrant for appellant’s blood.
Analysis
Officer Back’s affidavit included the following facts:
I am a peace officer of the State of Texas, . . . and I have good
reason to believe that heretofore, . . . Munoz, David . . . commit[ted]
an offense relating to the operat[ion] of a motor vehicle while
intoxicated namely: Driving While Intoxicated[].
On 01/08/12 at 2:20 hrs I Officer JM Back #3863 observed the
IMP[5] perform a short “burn out” with his tires . . . . I also observed
that the IMP had no tail lights while driving on a public roadway and
make a left to right lane change without a signal. I followed the IMP
initiating a traffic stop, turning on my red and blue lights signaling the
IMP to pull over. . . . I approached the car and asked the driver later
identified as ARR[6] Munoz, David . . . for his driver’s license. I
immediately could smell an odor of an alcoholic beverage about
ARR’s breath and person as he spoke to me. After ARR handed me
his driver’s license I asked him if he had been drinking. ARR
responded, “I have had three beers, but I ain’t drunk”. I then asked
him where he had been drinking, he responded, “at the Po[u]r
House”. I then had ARR exit the IMP. I observed that the ARR had
watery and dilated eyes, ARR speech was loud. Walk/Balance was
swayed. I then asked the ARR to step in front of my patrol car to
perform the FSE’s. The following clues were observed during the
FSE’s.
5
“IMP” is not defined in Officer Back’s affidavit. He testified at the
suppression hearing that “IMP” means an impounded vehicle.
6
“ARR” is not defined in Officer Back’s affidavit. He testified at the
suppression hearing that “ARR” means an arrested person.
6
1. HGN 6 clues
2. W/T ARR refused
3. 1LS ARR refused
I determined through the Field Sobriety Evaluations and my
observations of the ARR that the ARR had lost his mental and
[p]hysical abilities to operate a motor vehicle. ARR was then placed
under arrest for DWI.
The affidavit concluded by requesting a warrant to seize appellant’s blood for a
DWI charge.
Appellant contends that the affidavit did not establish probable cause to
issue the warrant for his blood specimen because it contained conclusory
statements. Specifically, appellant asserts that the affidavit is defective because
it
• describes appellant’s driving behavior, but the driving behavior does not
“rise to the level of probable cause for DWI”;
• does not define the acronyms associated with the field sobriety tests,
explain the significance of the clues Officer Back observed during the HGN
test, or define the other acronyms used in the affidavit; and
• refers to Daniel Gonzalez instead of appellant in section two.
Although the affidavit did not describe driving that would itself establish
probable cause that appellant committed DWI, it did not seek to establish
probable cause solely on the basis of appellant’s driving. The affidavit also
explains that appellant refused to provide a breath specimen, and the magistrate
7
could have inferred from that refusal that appellant’s blood would contain
evidence of intoxication. See Tex. Transp. Code Ann. § 724.061 (West 2011);
Stovall v. State, No. 03-10-00552-CR, 2011 WL 5865235, at *5 n.7 (Tex. App.—
Austin Nov. 23, 2011, no pet.); see also Nava, 2012 WL 3364230, at *3. In
addition, the affidavit contains additional evidence from which the magistrate
could have inferred probable cause: it stated that appellant smelled of alcohol, 7
had “watery and dilated eyes,” had swayed balance, spoke loudly, and refused to
perform two additional field sobriety tests. See, e.g., Hughes v. State, 334
S.W.3d 379, 386–87 (Tex. App.—Amarillo 2011, no pet.); see also Nava, 2012
WL 3364230, at *4. It also contains information about appellant’s performance
on the HGN test. Although the affidavit did not define the acronym “HGN” or
explain the nature and significance of the clues observed during the test, it need
not do so to be sufficient to establish probable cause. See Hogan, 329 S.W.3d
at 96 (declining to hold affidavit that did not define field sobriety tests insufficient
because it provided additional evidence of intoxication); see also Gravitt v. State,
No. 05-10-01195-CR, 2011 WL 5178337, at *3 (Tex. App.—Dallas Nov. 2, 2011,
7
Appellant argues that this observation is insufficient because it was not
modified by an adjective such as “weak, moderate[,] or strong.” However, an
odor of alcohol is valid evidence of intoxication whether it is modified by an
adjective or not. See Cotton v. State, 686 S.W.2d 140, 143 (Tex. Crim. App.
1985) (stating that “alcoholic breath is ‘evidence of intoxication’”). Furthermore,
the fact that appellant admitted to drinking three beers lends credibility to Officer
Back’s observation about the odor of alcohol. See State v. Dugas, 296 S.W.3d
112, 117 (Tex. App.––Houston [14th Dist.] 2009, pet. ref’d) (listing Dugas’s
admission that he had been drinking as some evidence to be considered in
establishing the sufficiency of an affidavit).
8
pet ref’d) (not designated for publication) (“The fact that the affidavit does not
detail . . . the results of the standardized field sobriety[] tests does not render the
affidavit inadequate.”).
Considered together, these facts provided a substantial basis from which
the magistrate could have reasonably inferred probable cause that appellant had
committed the offense of DWI. See, e.g., Griffith v. State, 55 S.W.3d 598, 601
(Tex. Crim. App. 2001); Stovall, 2011 WL 5865235, at *5; Hughes, 334 S.W.3d at
387; Hogan, 329 S.W.3d at 96.
Appellant also argues that the affidavit was insufficient because it
contained a reference to Daniel Gonzalez instead of appellant. In sections two
and three, the affidavit reads,
That I have good reason to believe that under the laws of the
State of Texas, the following described property and items are
subject to seizure, to wit: blood from the person of the said
Gonzalez, Daniel.
....
That I have good reason to believe and do believe that the blood
from the person of the said Munoz, David listed and described in
paragraph II above are now in the possession and control of the said
Munoz, David on and within the body of said Munoz, David.
In section four, the affidavit concludes by requesting a warrant to search and
seize the blood of “Munoz, David.” Overall, the affidavit correctly names
appellant seven times and mentions Daniel Gonzalez only once. We conclude
that the magistrate could have reasonably inferred that the reference to Daniel
Gonzalez was merely a typographical error that did not invalidate the warrant.
9
See, e.g., Rougeau v. State, 738 S.W.2d 651, 663 (Tex. Crim. App. 1987), cert.
denied, 485 U.S. 1029 (1988), overruled on other grounds, 784 S.W.2d 5 (Tex.
Crim. App. 1989); Lyons v. State, 503 S.W.2d 254, 255–56 (Tex. Crim. App.
1973); Rios v. State, 901 S.W.2d 704, 707 (Tex. App.––San Antonio 1995, no
pet.); see also Salzido v. State, No. 07-10-00031-CR, 2011 WL 1796431, at *5
(Tex. App.—Amarillo May 11, 2011, pet. ref’d) (mem. op., not designated for
publication); Schornick v. State, No. 02-10-00183-CR, 2010 WL 4570047, at *3
(Tex. App.––Fort Worth Nov. 4, 2010, no pet.) (mem. op., not designated for
publication); cf. Green v. State, 799 S.W.2d 756, 759 (Tex. Crim. App. 1990)
(“[P]urely technical discrepancies in dates or times do not automatically vitiate
the validity of search or arrest warrants.”).
Appellant cites our decision in Farhat as support for his argument that
Officer Back’s affidavit was invalid because it did not provide enough facts to
create a substantial basis from which the magistrate could infer probable cause.
See Farhat v. State, 337 S.W.3d 302, 307 (Tex. App.—Fort Worth 2011, pet.
ref’d). In that case, we held that an affidavit was insufficient because it contained
no record of the arresting officer’s personal observations of intoxication. Id. In
contrast, as explained above, Officer Back’s affidavit contained multiple personal
observations pertaining to signs of intoxication exhibited by appellant. Thus,
unlike in Farhat, here, the combined logical force of all of the facts in the affidavit
provided a substantial basis for the magistrate to infer probable cause that
appellant had committed DWI. See Rodriguez, 232 S.W.3d at 62.
10
For these reasons, we hold that the facts contained within Officer Back’s
affidavit, along with the reasonable inferences that the magistrate could have
drawn from those facts, provided a substantial basis for the magistrate to
conclude that appellant’s blood would reveal evidence of intoxication. See id.
The affidavit complied with the United States and Texas constitutions and article
18.01 of the code of criminal procedure. See U.S. Const. amend. IV; Tex. Const.
art. I, § 9; Tex. Code Crim. Proc. Ann. art 18.01. Thus, the trial court did not err
by denying appellant’s motion to suppress. We overrule appellant’s sole issue.
Conclusion
Having overruled appellant’s sole issue, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
WALKER, J., concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 8, 2013
11