COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00342-CR
MARY CRAWFORD STANLEY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
The trial court denied Appellant Mary Crawford Stanley‘s motion to
suppress after it concluded that a police officer‘s affidavit requesting a warrant to
obtain Stanley‘s blood sample established sufficient probable cause that she was
driving while intoxicated. In one point, Stanley argues that the arresting officer‘s
1
See Tex. R. App. P. 47.4.
search warrant affidavit failed to establish probable cause that Stanley was
driving while intoxicated. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
On the night of November 29, 2008, Stanley was involved in a collision
with a car. Flower Mound Police Officer Thomas Cox responded to the accident,
observed Stanley‘s appearance and behavior, performed three standardized field
sobriety tests, and arrested Stanley for driving while intoxicated. Because
Stanley refused to give a breath or blood specimen, the arresting officer
completed an affidavit requesting a magistrate judge to issue a search warrant
for Stanley‘s blood. In the early morning of November 30, 2008, the magistrate
judge signed the search warrant, and Stanley‘s blood was drawn.
Stanley was subsequently charged by information with driving while
intoxicated, and she moved to suppress the evidence obtained by the
magistrate‘s search warrant, arguing that Officer Cox‘s affidavit lacked probable
cause. At the hearing, the State entered the search warrant and affidavit into
evidence, but neither party entered any other exhibit or testimony. The trial court
denied Stanley‘s motion, and in August 2010, Stanley pleaded nolo contendere
to driving while intoxicated. The trial court imposed a $600 fine and sentenced
Stanley to 180 days in jail, probated for eighteen months. In accordance with her
plea bargain, Stanley preserved her right to appeal the denial of her motion to
suppress. This appeal followed.
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III. SUFFICIENCY OF AFFIDAVIT
In her only point, Stanley argues that Officer Cox‘s search warrant affidavit
failed to establish probable cause that Stanley was driving while intoxicated.
During a DWI investigation, law enforcement may obtain a defendant‘s
blood 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.
2010). Under the Fourth Amendment and the Texas constitution, a magistrate
must find probable cause within the four corners of an affidavit in order to issue a
search warrant. U.S. Const. amend. IV; Tex Const. art. I, § 9; Tex. Code. Crim.
Proc Ann. art. 18.01(b); Nichols v. State, 877 S.W.2d 494, 497 (Tex. App.—Fort
Worth 1994, pet. ref‘d). When reviewing an affidavit‘s sufficiency and a
magistrate‘s determination of probable cause, we limit our review to the totality of
the circumstances within the four corners of the affidavit and defer to the
magistrate‘s probable cause determination ―so long as the magistrate had a
‗substantial basis for . . . conclud[ing]‘ that a search would uncover evidence of
wrongdoing.‖ Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983)
(quoting Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736 (1960),
overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 100 S. Ct.
2547 (1980)); Swearingen v. State, 143 S.W.3d 808, 810 (Tex. Crim. App. 2004);
Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied, 507
U.S. 921 (1993)); see also Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App.
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2010). Probable cause is established if a person of reasonable caution would be
warranted in believing that the affidavit includes facts and circumstances which
meet the criteria in article 18.01(c) of the code of criminal procedure. Hogan v.
State, 329 S.W.3d 90, 94 (Tex. App.—Fort Worth 2010, no pet.) (citing 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 (1) that a specific offense has been committed, (2) that the item to
be seized constitutes evidence of that offense or evidence that a particular
person committed that offense, and (3) that the item is located at or on the
particular person, place, or thing to be searched. See Tex. Code Crim. Proc.
Ann. art. 18.01(c); Tolentino, 638 S.W.2d at 501; Hogan, 319 S.W.2d at 94.
Our highly ―deferential standard of review is appropriate to further the
Fourth Amendment‘s strong preference for searches conducted pursuant to a
warrant,‖ which mitigates possible ―intrusion[s] upon‖ an individual‘s Fourth
Amendment-protected interests. Davis v. State, 202 S.W.3d 149, 157 (Tex.
Crim. App. 2006). Thus, ―‗courts should not invalidate . . . warrant[s] by
interpreting affidavit[s] in a hypertechnical . . . manner‘‖ but should instead
―interpret [affidavits] in a commonsense and realistic manner‖ and ―must allow for
any reasonably available inferences‖ drawn by a magistrate. Gates, 462 U.S. at
236, 103 S. Ct. at 2331 (emphasis added) (quoting United States v. Ventresca,
380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965)); Davis, 202 S.W.3d at 157–58;
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Hogan, 329 S.W.3d at 94. Although a magistrate‘s ―action cannot be a mere
ratification of . . . bare conclusions‖ found in the affidavit, ―‗[t]he 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.‘‖ Gates, 462 U.S. at
239, 103 S. Ct. at 2333; Hogan, 329 S.W.3d at 94 (quoting Rodriguez v. State,
232 S.W.3d 55, 62 (Tex. Crim. App. 2007)).
Here, the affidavit states that (1) ―[o]n or about the 29 day of November,
2008, [Stanley] . . . operate[d] a motor vehicle in a public place in Denton County,
Texas while intoxicated by not having the normal use of mental or physical
faculties by reason of the introduction of alcohol . . .‖; (2) ―human blood . . .
constitutes evidence that [Stanley] committed the offense‖; and (3) ―[Stanley] has
possession of and is concealing human blood.‖ Officer Cox explained that he
smelled a ―slight‖ alcoholic odor on Stanley‘s breath and that he heard Stanley
erroneously state that she was located in Lake Dallas. When Officer Cox asked
if she had been drinking, Stanley responded that she ―had one.‖ According to
Officer Cox, Stanley also stated prior to her arrest that she ―would rather go to jail
than let [her] [priest] father know the amount [that she] was drinking.‖ Officer
Cox‘s affidavit indicated that Stanley‘s balance was swayed and unsteady, her
walking was staggered, her speech was slurred, her eyes were red and watering,
and her attitude was cocky and uncooperative. In addition to these observations,
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the affidavit included results from three different field sobriety tests—the
horizontal gaze nystagmus (HGN) test, the walk and turn test, and the one leg
stand test. Officer Cox observed five clues of intoxication when he performed the
HGN test. He further noted that during the instruction phase of the walk and turn
test, Stanley could not keep her balance, started too soon, and ―almost fell.‖
During the test‘s walking stage, Stanley ―stopped on the ninth step‖ because,
according to her, she ―was cold.‖ Officer Cox commented that Stanley ―put [her]
foot down more than three times‖ during the one leg stand test.
Stanley argues that her poor performance during the field sobriety tests
and her geographical disorientation were attributable to trauma rather than
intoxication and that in order for a magistrate to infer the opposite, he ―must base
the opinion on an officer [who is] clearly demonstrated to be trained and certified
to make that call.‖ Stanley challenges the officer‘s ability to ―make that call,‖
contending that ―[t]he officer‘s affidavit fails to detail his training and experience
which would lend a magistrate to rely on him.‖ Stanley takes specific issue with
the officer‘s ability to conduct the HGN test and argues that the only reference to
the officer‘s training is a conclusory statement that invalidates the supporting
affidavit.2
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Stanley argues that the following statement provides no explanation or
affirmation that Officer Cox is trained to conduct HGN tests: ―Based on all of the
above and my experience and training, I determined that the suspect was
intoxicated . . . .‖
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Although Stanley is correct that a magistrate cannot issue a search
warrant based on conclusory statements alone, see Gates, 462 U.S. at 239, 103
S. Ct. at 2333, she incorrectly asserts that an affidavit requires some explanation
to a magistrate of the officer‘s specific training and ability to interpret the
observations and that an affidavit is fatally undermined by its failure to detail the
officer‘s training and experience. See Hogan, 329 S.W.3d at 96 (holding that an
affidavit‘s omission of an officer‘s detailed experience with DWI cases does not
invalidate the affidavit‘s sufficiency). Moreover, while the ―[b]est practice is for
the affiant expressly to include an officer‘s experience, background information,
and previous association with [intoxicated drivers and field sobriety tests] so that
little is left to inference, . . . the law requires that we defer to a magistrate‘s
reasonable, common sense conclusions.‖ Davis, 202 S.W.3d at 157–58. Thus,
we agree with the State that a magistrate may reasonably infer from the affidavit
that Officer Cox was trained to administer and interpret all three field sobriety
tests. The affidavit in this case states that Officer Cox is a peace officer
employed by a law enforcement agency (the Flower Mound Police Department),
that he has seen intoxicated persons on many occasions in the past, and that
based on his training and experience, Stanley was intoxicated. The affidavit also
states that Officer Cox recorded results and observations of Stanley‘s
performance of the field sobriety tests, and it lists and identifies the various clues
associated with the HGN test and outlines the phases of the walk and turn test.
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Without reading additional facts into the affidavit, the magistrate could have
reasonably concluded that Officer Cox‘s assertion that he observed five clues
while performing the HGN test was based on his training and experience with
intoxicated persons.
To the extent Stanley argues that equally conflicting inferences could be
drawn from the affidavit (e.g., Stanley‘s trauma, instead of intoxication, accounts
for her behavior), this does not destroy the affidavit‘s sufficiency. See Rodriguez,
232 S.W.3d at 64 (―It is not necessary to delve into all of the facts that were
omitted by the affiant, facts that could have been included in the affidavit, or
contrary inferences that could have been made by the magistrate.‖). Such
conflicting inferences, as argued here, underscore this court‘s duty to defer to the
magistrate‘s probable cause determination when supported by a substantial
basis. See Davis, 202 S.W.3d at 157–58. Our decision is consistent with the
desire to encourage future police officers to use the warrant process, which
consequently helps preserve an individual‘s fundamental Fourth Amendment
rights. See id. at 157.
Stanley also asks us to consider how the trial court‘s factual findings here
compare to the factual findings of other cases, all of which established probable
cause. See State v. Dugas, 296 S.W.3d 112 (Tex. App.—Houston [14th Dist.]
2009, pet ref‘d); Thurman v. State, 861 S.W.2d 96 (Tex. App.—Hous. [1st Dist.]
1993, no pet.); Martin v. State, No. 02-08-00128-CR, 2009 WL 2414294 (Tex.
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App.—Fort Worth Aug. 6, 2009, no pet.) (mem. op., not designated for
publication). Apparently, Stanley seeks to distinguish her case from these cases
by highlighting facts found in the above cases that are not found in her case. For
example, in Martin, the appellant fled the scene of an accident, was combative
towards officers, and slurred his speech. Martin, 2009 WL 2414294, at *3.
Stanley argues that she was neither combative nor uncooperative and that no
evidence indicates that she slurred her speech or was slow to respond.
However, the officer noted in his affidavit that Stanley was both cocky and
uncooperative and that her speech was slurred. Not only does the affidavit
foreclose Stanley‘s argument, her attempts to parse the language and somehow
distinguish her case from other probable cause cases reflects a hypertechnical
approach to reviewing affidavits, which is contrary to the law‘s approach. See
Gates, 462 U.S. at 236, 103 S. Ct. at 2331. ―No magical formula exists‖ for
finding probable cause, and we base our decision on the totality of the
circumstances within the affidavit. See Tolentino, 638 S.W.2d at 501.
Accordingly, deferring to the magistrate‘s determination of probable cause,
we hold that the affidavit in its entirety establishes sufficient facts, along with
reasonable inferences from those facts, to provide the magistrate judge with a
substantial basis for concluding that obtaining Stanley‘s blood would probably aid
in proving that she committed the offense of driving while intoxicated. We
overrule Stanley‘s only point.
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IV. CONCLUSION
Having overruled Stanley‘s sole point, we affirm the trial court‘s judgment.
BILL MEIER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 28, 2011
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