COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00175-CR
DARRELL HUGHEY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Darrell Hughey appeals from his conviction––and sentence of ninety days’
confinement, probated for twenty-four months––pursuant to a plea bargain for
misdemeanor driving while intoxicated. In one issue, he challenges the trial
court’s denial of his pretrial motion to suppress. We affirm.
1
See Tex. R. App. P. 47.4.
Background
Appellant moved to suppress his blood test results that the police obtained
pursuant to a warrant; appellant contended that the warrant did not provide a
reasonable basis for the magistrate to determine that probable cause existed that
he had committed DWI. He also moved for a Franks hearing on the veracity of
the officer’s statement in the supporting affidavit that appellant had refused to
voluntarily give a breath sample and that during an interview in the intoxilyzer
room, appellant had stated, “I refuse everything and do not wish to continue.”
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978). In addition, the
affidavit does not divulge that only Joel Rivera, an off-duty police officer,
witnessed the driving facts included in the affidavit (rather than the physical
condition of appellant), which the swearing officer did not personally observe.
The trial court held appellant’s motion to suppress hearing and Franks
hearing together. The State agreed to redact the paragraph of the affidavit
regarding appellant’s alleged refusal of a breath test. The State also conceded
that the affidavit does not include information about Rivera’s credibility, veracity,
or status as a police officer and that the affidavit does not specifically state that
only Rivera witnessed the driving facts. The State argued, however, that a
reading of the entire affidavit makes it clear that the swearing officer did not
witness the driving facts and thus did not mislead the magistrate by failing to
specifically say that she did not witness any driving facts personally.
2
Standard of Review and Applicable Law
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 v. State, 143 S.W.3d 808,
810–11 (Tex. Crim. App. 2004). In Swearingen, the court of criminal appeals
reiterated that Texas appellate courts are to follow the United States Supreme
Court’s traditional standard for reviewing probable cause: whether the
magistrate had a substantial basis for concluding that a search would uncover
evidence of wrongdoing. Id. at 810 (citing Illinois v. Gates, 462 U.S. 213, 236,
103 S. Ct. 2317, 2331 (1983)).
An affidavit supporting a search warrant begins with a presumption of
validity. Cates v. State, 120 S.W.3d 352, 355 (Tex. Crim. App. 2003). In Franks,
the United States Supreme Court held that when a “defendant makes a
substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant in
the warrant affidavit, and if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment requires that a hearing be held
at the defendant’s request.” 438 U.S. at 155–56, 98 S. Ct. at 2676.
We review a trial court’s decision on a Franks suppression issue under the
same standard that we review a probable cause deficiency, a mixed standard of
review: “We give almost total deference to a trial court’s rulings on questions of
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historical fact and application-of-law-to-fact questions that turn on an evaluation
of credibility and demeanor while we review de novo application-of-law-to-fact
questions that do not turn upon credibility and demeanor.” Johnson v. State, 68
S.W.3d 644, 652–53 (Tex. Crim. App. 2002); Fenoglio v. State, 252 S.W.3d 468,
473 (Tex. App.––Fort Worth 2008, pets. ref’d). However, in a Franks hearing,
the trial court may consider not only the probable cause affidavit but also the
evidence offered by the party moving to suppress because this attack on the
sufficiency of the affidavit arises from claims that it contains false statements.
Franks, 438 U.S. at 155–56, 98 S. Ct. at 2676; Cates, 120 S.W.3d at 355 n.3;
Fenoglio, 252 S.W.3d at 473.
Under Franks, a search warrant affidavit must be voided, and any
evidence obtained pursuant to the search warrant excluded, if a defendant can
establish by a preponderance of the evidence at a hearing that the affidavit
contains a false statement made knowingly or intentionally, or with reckless
disregard for the truth. 438 U.S. at 155–56, 98 S. Ct. at 2676; Fenoglio, 252
S.W.3d at 473. Then, setting the false material aside, the movant must also
show that the affidavit’s remaining content is insufficient to establish probable
cause. Franks, 438 U.S. at 155–56, 98 S. Ct. at 2676; Fenoglio, 252 S.W.3d at
473.
4
Analysis
Here, the redacted affidavit provided to the trial court stated as follows:
Specifically, I witnessed and I was informed by Joel Rivera of / the
following:
Driving (DWI, BWI, FWI) facts:
Suspect was traveling approximately 40 mph on I20 and then on
360, where the actual speed limit is 60 mph. Suspect left his lane of
traffic several times, swerving in and out of his lane. Suspect was
stopped at a green signal before proceeding through and again
swerving in and out of his lane. Suspect crossed the dividing lines,
and then he made a u-turn returning to the intersection he previously
had crossed. Suspect was then stopped in a drive thru fast food
lane, where your affiant made contact with the suspect.
Observations of suspect’s physical condition:
Suspect had bloodshot, watery eyes; the smell of an alcoholic
beverage on his breath; suspect was slow to respond to questions;
suspect displayed slow and uncoordinated reaction times; suspect
stated that he had drank beer and been to a party where they served
him “I don’t know what.”
Results of field sobriety tests given to suspect:
Suspect refused to perform any standardized field sobriety tests.
When your affiant asked the suspect if he had been drinking, he
stated that he had been drinking “beer.” When asked exactly how
much, he responded “apparently too much.” Suspect gave no
reason for refusing the tests, but said “if you are going to arrest me,
then arrest me.” After arrested, suspect stated “I would have failed
the tests anyway and didn’t want to embarrass myself.”
If all of the driving facts were redacted from the affidavit, the affidavit would
have still supported the magistrate’s determination of probable cause. The
officer stated that she made contact with appellant when he was stopped in a fast
food drive-through lane; he had bloodshot, watery eyes, the smell of an alcoholic
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beverage on his breath, was slow and uncoordinated in his reaction times, and
admitted that he had been drinking beer and had been to a party. Thus,
regardless of whether the affidavit sufficiently showed Rivera’s identity or
credibility, the remainder supports the magistrate’s probable cause conclusion.
See Denton v. State, 911 S.W.2d 388, 390 (Tex. 1995) (holding that, for
sufficiency purposes, whether person operated vehicle while intoxicated is based
on totality of circumstances showing that person took action to affect functioning
of vehicle in manner that would enable its use); Dornbusch v. State, 262 S.W.3d
432, 433, 436–38 (Tex. App.––Fort Worth 2008, no pet.); Freeman v. State, 69
S.W.3d 374, 375–76 (Tex. App.––Dallas 2002, no pet.).2 We conclude and hold
that the trial court did not err by denying appellant’s motion to suppress.
2
We additionally agree with the analysis of similar facts set forth in an
unpublished case, Wheat v. State. No. 14-10-00029-CR, 2011 WL 1259642, at
*5 (Tex. App.––Houston [14th Dist.] Apr. 5, 2011, pet. ref’d) (mem. op., not
designated for publication). Although the appellant in Wheat (like the appellants
in the cases cited above) was found asleep in a parked car, here appellant was
awake and stopped in a drive-through lane; thus, the conclusion that he was very
recently operating the vehicle is even more strongly supported.
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Conclusion
Having overruled appellant’s sole issue, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 15, 2012
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