COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00154-CR
GREGORY BLAINE SCHEIDEMAN 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 OPINION1
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Introduction
Appellant Gregory Blaine Scheideman negotiated a plea bargain with the
State and pleaded guilty to driving while intoxicated (DWI) after the trial court
denied his motions to suppress evidence. Then he appealed, claiming in three
points that the trial court erred by denying his motions to suppress and by not
granting his request to file findings of facts and conclusions of law. In a separate
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See Tex. R. App. P. 47.4.
order, we sustained the latter point, abated this case, and remanded it to the trial
court to file findings of fact and conclusions of law, which the trial court has now
provided in a supplemental clerk’s record. After considering Appellant’s
remaining points in light of the complete record, we affirm.
Background Facts and Procedural History
University of North Texas Police Officer S. Williamson stopped Appellant
for running a red light and noticed that Appellant’s breath and person smelled of
an alcoholic beverage, that Appellant’s eyes were bloodshot and watery, and that
Appellant’s speech was slurred. Appellant admitted that he had had a couple of
drinks at a bar, but he refused to perform field sobriety tests or to submit to a
breath test. Williamson took Appellant to jail and turned him over to the DWI
officer on duty, Officer C. Bounds. Williamson and Bounds discussed the facts
that had led Williamson to believe that Appellant had committed DWI, and
Bounds included those facts in an affidavit for a warrant to permit drawing a
specimen of Appellant’s blood for alcohol testing. Williamson filled out a form
DWI offense report. Bounds’s affidavit included Williamson’s observation that
Appellant’s speech was slurred, whereas Williamson’s report indicated that
Appellant’s speech was normal.
A sample of Appellant’s blood was drawn and tested, and Appellant moved
to suppress the results in two motions, alleging that the warrant was not
supported by probable cause and that the statement in the affidavit that Appellant
slurred his speech was false.
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The trial court denied both motions after a hearing at which only Officer
Bounds testified. Appellant then negotiated a plea-bargain agreement with the
State, retaining his right to appeal the trial court’s rulings on the motions to
suppress.
Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
We give almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at
673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
When the trial court makes explicit fact findings, as the trial court did in this
case, we determine whether the evidence, when viewed in the light most
favorable to the trial court’s ruling, supports those fact findings. State v. Kelly,
204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006). We then review the trial court’s
legal ruling de novo unless its explicit fact findings that are supported by the
record are also dispositive of the legal ruling. Id. at 818.
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Sufficiency of the Affidavit
In his second point, Appellant challenges the sufficiency of the warrant
affidavit to show probable cause, claiming that it does not because even though
the affidavit states that Appellant’s speech was slurred and Officer Bounds
testified that Officer Williamson reported that Appellant slurred his speech,
Officer Williamson’s report, admitted as Defense Exhibit 1, indicates that
Appellant’s speech was ―normal.‖ Appellant contends that the trial court should
have redacted the reference to slurring in the affidavit and that the redacted
version would be insufficient to show probable cause.
With one exception that applies to Appellant’s next point, but not to this
one, review of a trial court’s denial of a suppression motion challenging the
sufficiency of an affidavit to set out probable cause is limited to the four corners
of the affidavit. Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App.), cert.
denied, 543 U.S. 944 (2004); Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim.
App. 1992), cert. denied, 507 U.S. 921 (1993); Nicol v. State, 470 S.W.2d 893,
894 (Tex. Crim. App. 1971); Davis v. State, 144 S.W.3d 192, 201 (Tex. App.—
Fort Worth 2004, pet. ref’d). In other words, unless the exception applies, we do
not stray beyond the four corners of the affidavit. So, regardless of what
evidence may exist beyond the four corners of the affidavit, if the affidavit sets
out facts that are sufficient to establish probable cause, the affidavit is sufficient
to support issuance of a warrant.
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The affidavit in this case stated that Appellant ran a red light, admitted to
having ―a couple of drinks‖ at a bar, smelled of alcohol, had watery, bloodshot
eyes and slurred speech, and refused to perform field sobriety tests or submit to
a breath test. Those facts are sufficient to show probable cause to believe that
Appellant was DWI, regardless of what facts may exist beyond the four corners
of the affidavit. See Tex. Dep’t of Pub. Safety v. Gilfeather, 293 S.W.3d 875,
880–81 (Tex. App.—Fort Worth 2009, no pet.) (en banc op. on reh’g) (holding
that there was substantial evidence to show probable cause for DWI when the
appellee was stopped for speeding, had bloodshot eyes, swayed, smelled like
alcohol, and refused field sobriety tests).
Appellant relies on Torres v. State, 182 S.W.3d 899 (Tex. Crim. App.
2005), to support his argument that the affidavit is insufficient to support the
magistrate’s issuance of the search warrant, particularly if the reference to
slurred speech is excised. Torres, however, is distinguishable. It involved a
warrantless arrest made by a Texas Department of Public Safety trooper. Id. at
901. Torres crashed his vehicle into the front porch of a rural residence. Id. at
900. Two sheriff’s deputies were the first to respond, and the trooper was later
called to the scene. Id. The deputies told the trooper that, in their opinion,
Torres was intoxicated when he drove into the porch. Id. at 901. The deputies
did not, however, articulate any supporting facts upon which they had based their
opinions. Id. at 903. Recognizing that probable cause could be based on facts
and circumstances of which the trooper had reasonably trustworthy information,
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the court of criminal appeals held that because the trooper in Torres had been
supplied with mere opinion and not with any supporting facts to support a finding
of probable cause, probable cause was not shown. Id. at 903.
That is not the case here. Officer Williamson did not give Officer Bounds
his mere opinion that Appellant had been intoxicated. He relayed to her specific
factual observations that supported a reasonable belief that Appellant had been
intoxicated while driving. With or without the statement in the affidavit that
Appellant’s speech was slurred, we hold that the affidavit is sufficient to support
the magistrate’s issuing the warrant. See State v. Garrett, 22 S.W.3d 650, 654
(Tex. App.—Austin 2000, no pet.) (officer’s observing traffic violation, smell of
alcohol, watery eyes, and unsteadiness held sufficient to support finding of
probable cause for DWI). Accordingly, we overrule Appellant’s second point.
The Franks Exception
In Franks v. Delaware, the U.S. Supreme Court allowed courts to go
outside the four corners of a warrant affidavit when a defendant alleges that the
affidavit contains a statement that is materially false. 438 U.S. 154, 171, 98 S.
Ct. 2674, 2684 (1978); Cates v. State, 120 S.W.3d 352, 355 n.3 (Tex. Crim. App.
2003). In Appellant’s third point he invokes this exception to the general rule that
sufficiency review of a warrant affidavit is limited to the four corners of the
affidavit by contending that the statement in the affidavit that Appellant’s speech
was slurred was false.
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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, giving almost total deference to a trial court’s rulings on questions of
historical fact and application-of-law-to-fact questions that turn on an evaluation
of credibility and demeanor while reviewing de novo application-of-law-to-fact
questions that do not turn upon credibility and demeanor. Davis, 144 S.W.3d at
201 (citing Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002)).
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. 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. Id. Then, setting the false material aside, the movant must also show that
the affidavit’s remaining content is insufficient to establish probable cause. Id.;
see also Hinojosa v. State, 4 S.W.3d 240, 246 (Tex. Crim. App. 1999).
At the Franks hearing, Officer Bounds explained that Officer Williamson
mistakenly indicated on his report that Appellant’s speech was normal: ―He
messed up on the speech part.‖ She explained further that she relied on what
Officer Williamson verbally told her about his observations of Appellant. In its
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findings of fact, the trial court found that Officer Bounds was a ―credible witness‖
and that it was ―persuaded that Officer Williamson’s verbal account to Officer
Bounds [wa]s the accurate recitation of [Appellant’s] physical presentation on the
night in question: [Appellant’s] speech and balance were not normal. Officer
Williamson merely marked the wrong boxes when completing the score sheet,
which Officer Bounds explained at the suppression hearing.‖ Under the
appropriate standard of review we are to defer to the trial court’s determinations
of credibility and demeanor. See Davis, 144 S.W.3d at 201. Accordingly, we
hold that the trial court reasonably concluded that Appellant did not prove by a
preponderance of the evidence that Officer Bounds intentionally, knowingly, or
recklessly made a material false statement in her search warrant affidavit, and
we overrule Appellant’s final point. See Franks, 438 U.S. at 155–56, 98 S. Ct. at
2676.
Conclusion
Having overruled Appellant’s remaining points, we affirm the trial court’s
judgment.
LEE GABRIEL
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 8, 2011
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