COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00387-CR
JOHN DAN HOGAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY
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OPINION
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In three related issues, appellant John Dan Hogan appeals his conviction
for driving while intoxicated (DWI).1 He contends that the trial court erred by
denying his motion to suppress evidence that the police obtained after arresting
him. We affirm.
1
See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003) (―A person commits
an offense if the person is intoxicated while operating a motor vehicle in a public
place.‖).
Background Facts
On an early fall morning in 2008, Fort Worth Police Department Officer
C.D. Harris was on patrol when he heard another officer, who was on a bike, say
on the radio that a car was driving dangerously and going the wrong way on a
one-way street. Officer Harris found a car that matched the description that he
had been given; the car had just been stopped because of another patrol officer’s
command. As appellant stepped out of the car, Officer Harris placed handcuffs
on him.2 Officer Harris noticed that appellant smelled like alcohol, had bloodshot
and watery eyes, had slurred speech, and was swaying and unsteady. Appellant
failed three field sobriety tests; he showed six clues of intoxication on the
horizontal-gaze-nystagmus test, six clues on the walk-and-turn test, and three
clues on the one-leg-stand test.3
Officer Harris placed appellant in the patrol car and took him to jail.
Officer Harris then read the statutory warning to appellant about providing a
breath specimen, and appellant refused to give one. After giving appellant the
walk-and-turn and one-leg-stand tests again in an intoxilyzer room, Officer Harris
placed appellant in a holding cell while he typed a search warrant affidavit to
draw appellant’s blood because appellant had refused the breath test.
2
Officer Harris said that he placed handcuffs on appellant because
appellant had evaded arrest.
3
Officer Harris opined during the motion to suppress hearing that appellant
was ―highly intoxicated.‖
2
A municipal magistrate read the affidavit and signed the warrant, and Officer
Harris 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 and statements that he made to the
police after his arrest. After an evidentiary hearing, the trial court granted the
suppression of appellant’s statements but denied appellant’s motion relating to
the blood draw. About a month later, under a plea agreement, appellant pled
nolo contendere. The trial court sentenced him to 365 days’ confinement, but it
suspended the sentence and placed him on two years’ community supervision.
Appellant preserved his right to bring this appeal.
The Denial of Appellant’s Motion to Suppress
In three related issues, appellant argues that (1) the search warrant issued
to obtain his blood specimen was not supported by probable cause and therefore
violated the United States and Texas constitutions, and (2) the affidavit
supporting the warrant did not comply with article 18.01 of the code of criminal
procedure because it did not contain sufficient facts showing probable cause that
an offense had been committed.5
4
The parties did not present evidence during the suppression hearing
about the result of appellant’s blood test.
5
Appellant states that his issues, which all concern probable cause, rely on
―identical facts.‖ Although appellant contends that the Texas constitution
provides greater protection regarding search warrants than the United States
3
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) (Vernon Supp. 2010); State v.
Johnston, 305 S.W.3d 746, 750 (Tex. App.—Fort Worth 2009, pet. granted).
A search warrant cannot issue unless it is based on 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);
Constitution, he does not particularly explain what that greater protection
comprises or how it affects the probable cause standard. Thus, we will examine
appellant’s issues together. See Arnold v. State, 873 S.W.2d 27, 33 & n.4 (Tex.
Crim. App. 1993), cert. denied, 513 U.S. 830 (1994); Garcia v. State, 239 S.W.3d
862, 868 n.3 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d), cert. denied, 129
S. Ct. 505 (2008).
4
Emenhiser v. State, 196 S.W.3d 915, 924–25 (Tex. App.—Fort Worth 2006, pet.
ref’d).
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
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 commonsense and realistic manner, recognizing that
5
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 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 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).
Analysis
Officer Harris’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, . . . HOGAN, JOHN DAN . . . did
. . . commit an offense relating to the operating of a motor vehicle
while intoxicated namely:
On October 26, 2008 I Officer CD Harris was assisting
A633 (Officer EA Bentley #3480) who had called out with a
wrong way driver. Officer Bentley stated that the IMP[6] was
traveling westbound in the 200 block of W. 5th St which is for
eastbound traffic only. . . . The IMP then turned westbound
onto 300 W. 6th ST and ran two red lights . . . . The IMP was also
driving recklessly as it swerved around other cars on the
roadway. . . . The IMP then turned southbound onto Forest Park
Blvd where Officer’s [sic] were able to finally catch up to the
IMP and conduct a traffic stop. I was on scene . . . by this time
6
―IMP‖ is not defined in Officer Harris’s affidavit. He testified that ―IMP‖
means an impounded vehicle.
6
and I was able to make contact with [appellant]. While speaking
with him I could smell the strong odor of an alcoholic beverage
on or about the person of [appellant] as well as observed that
he had bloodshot, watery[,] and heavy eyes. [Appellant] had
swayed and unsteady balance as well as swayed, unsteady[,]
and staggered walk. At that time I believed he was possibly
intoxicated by means of alcohol and requested that [appellant]
perform a field sobriety evaluation which yielded the following
results: HGN-6 clues with vertical nystagmus, WAT-6 clues,
OLS-3 clues. At that time I placed [appellant] under arrest for
driving while intoxicated and transported him to [jail] . . . where
he refused to provide a breath specimen.
The affidavit concluded by requesting a warrant to seize appellant’s blood and
therefore gain evidence for a DWI charge.
The warrant that the magistrate signed incorporated Officer Harris’s
affidavit and said that the facts contained within it were sufficient to establish
probable cause for medical personnel to draw a specimen of appellant’s blood.
The trial court’s conclusions of law state in part,
Judge Kelms was a neutral, impartial magistrate when she
issued the warrant.
The search warrant was lawful and valid.
....
[Appellant’s] blood sample was seized pursuant to a search
warrant validly executed in accordance with Articles 18.01 and 18.02
of the Code of Criminal Procedure . . . .
Appellant contends that the affidavit did not establish probable cause to
issue the warrant for his blood specimen because it contained ―conclusory and
nonsensical statements.‖ Specifically, appellant asserts that the affidavit is
defective because it
7
describes the driving path of an ―IMP‖ but does not explain to the
magistrate what ―IMP‖ means and does not explicitly state that appellant
was driving the ―IMP‖ or was otherwise operating a motor vehicle;
uses ―HGN,‖ WAT,‖ and ―OLS‖ without defining those acronyms or
explaining the significance of the number of ―clues‖ as related to the
acronyms, and therefore the affidavit does not show appellant’s
intoxication; and
does not state that Officer Harris is qualified to conduct field sobriety tests
or that he has experience in DWI cases.
While the affidavit could have been clearer, in according deference to the
magistrate’s determination, we cannot agree with appellant that it failed to
establish probable cause to show that he had committed DWI and that his blood
could provide evidence of that offense. Although the affidavit never specifically
stated that appellant was the person who was driving the ―IMP,‖ it explained that
Officer Harris had good reason to believe that appellant had operated a motor
vehicle, described how officers saw a car progress recklessly and illegally
through the streets of Fort Worth, explained that officers stopped the car that
they observed being driven recklessly and illegally, and then said that at the
scene of the stop, Officer Harris made contact with appellant. The affidavit does
not indicate that anyone other than appellant (and other police officers) was at
the scene (and therefore does not create doubt that someone else could have
driven the ―IMP‖). Thus, we conclude that the magistrate could have reasonably
inferred that appellant drove the vehicle described in the affidavit.
See Rodriguez, 232 S.W.3d at 61.
8
Next, we acknowledge that the affidavit could have been more explicit
concerning appellant’s performance on the field sobriety tests because it did not
define the sobriety tests’ acronyms or explain the nature or significance of the
tests. But even if we assume that the magistrate did not understand Officer
Harris’s acronyms or know about the tests, the affidavit still informed the
magistrate in plain language that appellant showed fifteen combined clues of
intoxication on the tests. And apart from the sentence concerning the tests, the
affidavit stated that appellant recklessly drove a vehicle; that he had a ―strong
odor‖ of alcohol, ―bloodshot, watery[,] and heavy eyes,‖ a swayed and unsteady
balance, and a staggered walk; and that he had refused to provide a breath
specimen. These facts alone were sufficient to show probable cause that
appellant committed DWI. See State v. May, 242 S.W.3d 61, 62 (Tex. App.—
San Antonio 2007, no pet.) (mem. op.); Learning v. State, 227 S.W.3d 245, 249
(Tex. App.—San Antonio 2007, no pet.) (mem. op.); Reynolds v. State, 902
S.W.2d 558, 560 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d); see also 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 to
participate in field sobriety tests).
Finally, although the affidavit might have been more complete if it had
detailed Officer Harris’s experience in DWI cases, we hold that such information
9
was not required to make the affidavit adequate. See Davis, 202 S.W.3d at 156
(explaining that an officer’s statement that he recognized the odor of
methamphetamine reasonably implied that he had experience with the odor
generated by the process of cooking methamphetamine). Many of the facts
included in Officer Harris’s affidavit would lead an untrained, common person to
believe that appellant was driving the vehicle while he was intoxicated.
See Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310 (1949)
(―In dealing with probable cause . . . we deal with probabilities. These are not
technical; they are the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act.‖); Small v. State,
977 S.W.2d 771, 774 (Tex. App.—Fort Worth 1998, no pet.) (citing Brinegar and
explaining that probable cause is a ―common sense standard requiring only a
probability of criminal activity rather than an actual showing of such activity‖).
Appellant cites a decision from the court of criminal appeals to conclude
that Officer Harris’s affidavit was invalid because it was conclusory. See Jones
v. State, 833 S.W.2d 118, 124 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 921
(1993). In Jones, an officer’s search warrant affidavit in a murder case attempted
to link the defendant to the murder by stating only that the defendant’s
fingerprints matched fingerprints taken from the scene. Id. The court of criminal
appeals held that the affidavit was insufficient because there ―were no facts that
would lead a neutral and detached magistrate to conclude that appellant was the
perpetrator of the crime and not merely an ordinary houseguest.‖ Id. In contrast,
10
as explained above, Officer Harris’s affidavit provided sufficient facts to allow the
magistrate to reasonably infer that appellant committed a crime by operating a
motor vehicle in a public place while intoxicated. Other cases relied on by
appellant are similarly distinguishable. See Cassias v. State, 719 S.W.2d 585,
590 (Tex. Crim. App. 1986) (op. on reh’g) (holding that an affidavit to search a
house for drugs was insufficient because it was ―too disjointed and imprecise to
warrant a man of reasonable caution in the belief that marihuana and cocaine
would be found‖ there); Taylor v. State, 54 S.W.3d 21, 27 (Tex. App.—Amarillo
2001, no pet.) (holding that there was no probable cause to search a defendant’s
home for child pornography based only on the facts that governmental authorities
received contraband by someone using an alias, obtained information that the
defendant used the alias at some time, and knew where the defendant lived).
For these reasons, we hold that the facts contained within Officer Harris’s
affidavit, along with reasonable inferences from those facts, allowed the
magistrate to conclude that 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 of the code of criminal
procedure; therefore, the trial court did not err by denying appellant’s motion to
suppress. See U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim.
Proc. Ann. art. 18.01. We overrule appellant’s three issues.
11
Conclusion
Having overruled appellant’s issues, we affirm the trial court’s judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
PUBLISH
DELIVERED: November 18, 2010
12