In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-15-00056-CR
_________________
ROBERT LYNN JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the County Court at Law No. 5
Montgomery County, Texas
Trial Cause No. 14-294861
________________________________________________________________________
MEMORANDUM OPINION
Appellant Robert Lynn Johnson appeals his conviction for driving while
intoxicated—a Class B misdemeanor offense. See Tex. Penal Code Ann. § 49.04
(a), (b) (West Supp. 2016). Johnson filed a pretrial motion to suppress evidence.
After the trial court denied his motion to suppress, Johnson pleaded guilty to
misdemeanor driving while intoxicated. The trial court assessed Johnson’s
punishment at confinement for 180 days and a $1500 fine, but suspended the
imposition of the jail sentence and placed Johnson on community supervision for
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eighteen months. In one issue, Johnson argues the trial court erred by denying his
motion to suppress the blood alcohol test obtained by a warrant. We affirm the
judgment of the trial court.
I. Background
Johnson filed a motion to suppress evidence seized in connection with his
detention and arrest. In his motion, Johnson globally argued that “[a]ny tangible
evidence seized in connection with this case was seized without warrant, probable
cause or other lawful authority in violation of . . . the Fourth, Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution, Article I, Sections 9, 10
and 19 of the Constitution of the State of Texas.” At the suppression hearing,
however, Johnson informed the court that Johnson was only contesting whether the
affidavit articulated sufficient facts to show “probable cause for the issuing of the
blood search warrant.” Admitted into evidence at the hearing were the “Search
Warrant,” the “Affidavit for Search Warrant and Magistration[,]” the “Blood
Withdrawal Procedure Form[,]” and the “Affidavit of Person who Withdrew
Blood[.]”
The search warrant affidavit was sworn to by a sergeant with the
Montgomery County Sheriff’s Office. According to the affidavit, on January 26,
2014, at approximately 7:20 p.m., a deputy constable observed Johnson operating a
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motorcycle in a public place. The sergeant attested that the constable reported to
him that he initiated the traffic stop of Johnson because Johnson was speeding and
had disregarded a stop sign. The affidavit indicates that Johnson was traveling at a
rate of speed of 53 miles per hour in a 25 mile per hour zone. The sergeant stated
that he was called to assist in the DWI investigation. The sergeant, attesting first-
hand, observed that Johnson had a strong odor of alcohol, glassy eyes, and
appeared cotton-mouthed. The sergeant averred that Johnson admitted to
consuming alcohol while at a friend’s house. Johnson also told officers that he
started drinking alcohol at 5 p.m. and stopped drinking at 7 p.m. Johnson admitted
to consuming two, twelve-ounce beers and one glass of red wine. The sergeant
noted that Johnson was cooperative, carefree, and had no noticeable difficulty with
balance or walking. Johnson refused to perform all field sobriety tests, which
according to the sergeant, left him with the impression that Johnson was attempting
to hide evidence of his level of intoxication.
At the suppression hearing, Johnson argued that the affidavit failed to
identify sufficient articulable facts of clear signs of intoxication to support a
probable cause finding to issue the search warrant. The trial court found there were
sufficient facts to support a finding of probable cause, and stated, “This was a good
stop. Two traffic offenses; speeding and a stop sign. Strong odor of alcoholic
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beverage, glassy eyes, and admission to consuming alcohol, and then a refusal to
perform filed sobriety tests.” After the trial court denied Johnson’s motion to
suppress, Johnson pleaded guilty to driving while intoxicated. The trial court
signed a certification of Johnson’s right to appeal, stating that Johnson was allowed
to appeal matters raised by written motion filed and ruled upon before trial and not
withdrawn or waived. Johnson filed this appeal of the denial of his motion to
suppress the blood alcohol evidence.
II. Standard of Review
Generally, we review a trial court’s ruling on a motion to suppress evidence
under a bifurcated standard of review, and in so doing, we afford almost total
deference to a trial court’s determination of historical facts as being the sole judge
of the witnesses’ credibility and the weight of their testimony. Cole v. State, 490
S.W.3d 918, 922 (Tex. Crim. App. 2016). However, when a motion to suppress is
based solely on a magistrate’s decision to issue a warrant, there are no credibility
determinations to which we must defer because the trial court’s review is limited to
the four corners of the affidavit. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim.
App. 2011); see also Oubre v. State, 542 S.W.2d 875, 877 (Tex. Crim. App. 1976)
(stating that “[i]t is well settled that the court will not look behind the allegations of
an affidavit for the issuance of a search warrant”). In our review of a magistrate’s
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decision to issue a warrant, “we apply a highly deferential standard because of the
constitutional preference for searches to be conducted pursuant to a warrant as
opposed to a warrantless search.” McLain, 337 S.W.3d at 271; see Illinois v. Gates,
462 U.S. 213 (1983); Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App.
2004). When an appellate court reviews an issuing magistrate's determination, we
are to interpret the affidavit in a commonsensical and realistic manner, recognizing
that the magistrate may draw reasonable inferences. McLain, 337 S.W.3d at 271;
Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). “When in doubt, we
defer to all reasonable inferences that the magistrate could have made.” McLain,
337 S.W.3d at 271.We will uphold the magistrate’s probable cause determination
if the magistrate had a substantial basis for concluding that probable cause existed
to issue the warrant. McLain, 337 S.W.3d at 271.
III. Probable Cause
Johnson argues the trial court erred in not suppressing blood test evidence
obtained by a warrant that was issued in reliance upon a deficient affidavit. The
Fourth Amendment to the United States Constitution mandates that “no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.” U.S. Const. amend. IV; see also Tex. Code Crim. Proc. Ann. art. 1.06
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(West 2005) (providing for the protection against unreasonable searches and
seizures). Obtaining a blood sample has been found to be a search and seizure
within the meaning of the Fourth Amendment. Schmerber v. California, 384 U.S.
757, 769–70 (1966); Sanchez v. State, 365 S.W.3d 681, 684 (Tex. Crim. App.
2012); State v. Dugas, 296 S.W.3d 112, 115 (Tex. App.—Houston [14th Dist.]
2009, pet. ref’d). Thus, a magistrate may issue a search warrant only after
submission of a sworn affidavit setting forth substantial facts establishing probable
cause. State v. Jordan, 342 S.W.3d 565, 568 (Tex. Crim. App. 2011); see Tex.
Code Crim. Proc. Ann. art. 18.01(b) (West Supp. 2016)1. “Probable cause for a
search warrant exists if, under the totality of the circumstances presented to the
magistrate, there is at least a ‘fair probability’ or ‘substantial chance’ that
contraband or evidence of a crime will be found at the specified location.” Flores,
319 S.W.3d at 702 (quoting Gates, 462 U.S. at 238, 243 n.13). Probable cause
affidavits may be based upon either personal observations of the affiant or hearsay
information provided by reliable and credible sources. See Franks v. Delaware,
438 U.S. 154, 165 (1978); Illinois v. Gates, 462 U.S. 213, 238 (1983).
A person commits the offense of driving while intoxicated if the person is
intoxicated while operating a motor vehicle in a public place. Tex. Penal Code
1
We cite to the current version of Article 18.01, because the subsequent
amendment does not affect the outcome of this appeal.
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Ann. § 49.04(a). A person is intoxicated when he does “not [have] the normal use
of mental or physical faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug, a combination of two or more of
those substances, or any other substance into the body;” or if the person has an
“alcohol concentration of 0.08 or more.” Tex. Penal Code Ann. 49.01(2) (West
2011). The Court of Criminal Appeals has identified several characteristics that
constitute evidence of intoxication, including erratic driving, slurred speech or
mumbled words, bloodshot or glassy eyes, unsteady balance, a “staggered gait[,]”
swaying, inability to perform field sobriety tests or follow directions, the odor of
alcohol on the person or his breath, and admissions concerning recent consumption
of alcohol. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010);
Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985). We have
previously recognized that a dry mouth can be considered a common side-effect of
intoxication. Ex parte Wasserloos, No. 09-12-00178-CR, 2013 WL 1272076, at *1
(Tex. App.—Beaumont Mar., 27, 2013, pet. ref’d) (mem. op., not designated for
publication). A suspect’s refusal to perform field sobriety tests can be considered
evidence of intoxication. See Maxwell v. State, 253 S.W.3d 309, 314 (Tex. App.—
Fort Worth 2008, pet. ref’d). A person’s refusal to submit a blood or breath sample
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can also be considered as evidence of intoxication. See Zill v. State, 355 S.W.3d
778, 786–87 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
The probable cause affidavit stated that the constable reported to the
sergeant that he observed Johnson operating a motorcycle in a public place and that
Johnson was speeding and had failed to observe a stop sign. The sergeant stated
that he had training and experience in conducting DWI investigations. The
observations described in the officer’s sworn affidavit—glassy eyes, cotton-mouth,
strong odor of alcohol—in conjunction with Johnson’s admission to having
consumed alcohol, refusal to participate in the field sobriety tests, and refusal to
give a blood sample provided a substantial basis to support the magistrate’s
determination of probable cause that Johnson had been driving while intoxicated.
Considering the totality of the circumstances as stated within the four corners of
the affidavit in this case, the magistrate was within his discretion to issue the
warrant authorizing a draw of Johnson’s blood for evidence that he had committed
the offense of driving while intoxicated. See Tex. Code Crim. Proc. art. 18.01(b);
McLain, 337 S.W.3d at 271.
Having overruled Johnson’s arguments on appeal, we affirm the trial court’s
order denying Johnson’s motion to suppress and affirm the judgement of the trial
court.
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AFFIRMED.
______________________________
CHARLES KREGER
Justice
Submitted on April 4, 2016
Opinion Delivered January 18, 2017
Before McKeithen, C.J., Kreger and Horton, JJ.
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