Reverse and Remand; Opinion Filed October 30, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00123-CR

                             THE STATE OF TEXAS, Appellant
                                         V.
                             JESSICA RUTH MOORE, Appellee

                      On Appeal from the County Criminal Court No. 2
                                   Dallas County, Texas
                           Trial Court Cause No. MB13-50157

                             MEMORANDUM OPINION
                            Before Justices Bridges, Lang, and Evans
                                    Opinion by Justice Evans


       The State of Texas appeals the trial court’s decision to grant appellee Jessica Moore’s

motion to suppress. In a single issue, the State contends that there were sufficient facts in the

search warrant affidavit to provide the issuing magistrate with probable cause for issuing a

search warrant so the trial court erred when it granted the motion to suppress. Finding merit in

the State’s argument, we reverse the trial court order granting the motion to suppress.

                                          BACKGROUND

       On June 27, 2013, Officer Michael Stephens of the Texas Parks and Wildlife Department

was conducting water safety inspections on Lake Ray Hubbard. Officer Stephens summarizes

one such inspection as follows:

       On or about 27 June 2013 at approximately 1000, I was conducting water safety
       inspections on Lake Ray Hubbard, in Dallas county [sic], when I noticed that a
        vessel was underway and had the harbor lights on the vessel. As we approached
        the vessel, a flashlight was used to identify the driver of the vessel who was a
        white female with blonde hair. There was a male passenger on board as well.
        During the inspection I observed a package of Budweiser lime flavored beer cans
        in the floor of the vessel and the smell of alcohol on the defendant. During the
        water safety inspection, the defendant could not locate the fire extinguisher which
        was located at her feet and after I pointed out where the extinguisher was located,
        she could not operate the single plastic buckle in the center of the harness. After
        she removed the fire extinguisher, she removed the safety pin, and made
        numerous attempts to place the pin back on the safety slot on the handle of the
        extinguisher. She was unable to place the safety pin back and I ask [sic] for the
        extinguish [sic] and was able to put the pin back in place. During the attempts to
        insert the safety pin, I was able to smell a strong odor of alcohol from the
        defendant and was approximately 2 feet away from the defendant during this
        evolution. At the completion of the water safety inspection the suspect admitted
        to operating the watercraft and I then asked her how much she had to drink, in
        which she stated she had one drink. I then asked the suspect if she would perform
        the Standardized Field Sobriety Test, which she refused. At that time the suspect
        was transferred to the patrol watercraft and escorted to the Bay view Marina.
        Once on the shore and during transport to the county jail I again detected the
        strong smell of alcohol. I placed the suspect under arrest and transported the
        suspect to the Dallas County Detention Center and was booked for Boating While
        Intoxicated. 1

The affidavit also includes the following observations about appellee by Officer Stephens:

(1) her clothing was “orderly”; (2) her balance was “normal”; (3) her speech was “normal”;

(4) her walking was “heavy footed”; (5) her eyes were “red and watering”; (6) the smell of

alcohol on her breath was “strong”; and (7) her attitude was “cooperative.” Appellee also

refused to provide a sample of her breath or blood. Based upon Officer Stephens’s observations

and the facts described above and his experience and training, he arrested appellee for Boating

While Intoxicated. Officer Stephens then utilized the above-described facts to obtain a search

warrant for a blood sample. On June 27, 2013, a magistrate judge determined that probable

cause existed for the issuance of a search warrant. Appellee was subsequently arrested for the

offense of boating while intoxicated. Appellee filed a motion to suppress the blood test results


    1
     This information is contained in the Affidavit for Search Warrant to enable Officer Stephens to obtain a blood
sample.


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and the trial court granted the motion stating that there were not enough facts and circumstances

set forth to establish the existence of probable cause to get a warrant for appellee’s blood. The

State then filed a notice of appeal.

                                             ANALYSIS

       In its sole issue, the State contends that the evidence was sufficient to provide the issuing

magistrate with probable cause for issuing a search warrant so the trial court erred when it found

the contrary and granted the motion to suppress. We agree.

       Under Article 18.01 of the Code of Criminal Procedure, a search warrant may be

obtained from a magistrate only after submission of an affidavit setting forth substantial facts

establishing probable cause. State v. Jordan, 342 S.W.3d 565, 568 (Tex. Crim. App. 2011).

Probable cause exists if, under the totality of the circumstances set forth in the affidavit, there is

a fair probability that evidence of a crime will be found in a particular place at the time the

warrant is issued. Id. at 568–69.

       We typically apply a bifurcated standard of review to a trial court’s ruling on a motion to

suppress by giving almost total deference to the trial court’s determinations of fact and reviewing

de novo the trial court’s application of law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim.

App. 2011). However, where, as here, 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 is constrained to the four corners of the affidavit. See State v. Webre, 347

S.W.3d 381, 384 (Tex. App.—Austin 2011, no pet.). Nevertheless, we do not use a de novo

standard of review; we apply a highly deferential standard to review the magistrate’s decision to

issue a warrant 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, 236 (1983). In doubtful or marginal cases, the magistrate’s determination should

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prevail. Hogan v. State, 329 S.W.3d 90, 94 (Tex. App.—Ft. Worth 2010, no pet.) (citing Flores

v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010)). The magistrate may interpret the

affidavit in a non-technical, common-sense manner and may draw reasonable inferences from

the facts and circumstances contained within its four corners. Jordan, 342 S.W.3d at 569. The

duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for

concluding that probable cause existed. Flores, 319 S.W.3d at 702.

       Appellee argues that the affidavit did not provide a substantial basis for the magistrate to

find probable cause to issue a search warrant. As an initial matter, appellee contends that the

game warden did not have probable cause or reasonable suspicion to stop and inspect the boat.

A game warden, however, may randomly stop a boat, board it, and conduct a safety inspection.

See TEX. PARKS & WILD. CODE ANN. § 31.124 (West 2002); Schenekl v. State, 30 S.W.3d 412,

413 (Tex. Crim. App. 2000) (holding that section 31.124 is constitutional in its provision that an

officer may stop and board a boat without probable cause or reasonable suspicion to perform a

water safety check); State v. Luxon, 230 S.W.3d 440, 449 (Tex. App.—Eastland 2007, no pet.)

(“Section 31.124(a) authorizes enforcement officers to stop and board boats, without probable

cause or reasonable suspicion, for the purpose of performing a water safety check.”). In addition

to many other items, a game warden’s safety inspection may include fire extinguishers. See TEX.

PARKS & WILD. CODE ANN. § 31.067 (West 2002); Schenekl, 30 S.W.3d at 415. Here, the game

warden’s affidavit stated he stopped appellee’s boat to conduct a random safety inspection and

then describes his observations of appellee regarding the fire extinguisher when he sought to

inspect it.   The game warden’s stop for a random safety inspection, including the fire

extinguisher, is specifically authorized by Texas law. We overrule appellee’s first contention.

       In regard to the sufficiency of the game warden’s affidavit to authorize a blood draw,

Officer Stephens stated that (1) he noticed a package of beer cans on the floor of the boat, (2) he

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smelled alcohol on the appellee, and (3) the smell of alcohol on her breath was “strong.” The

affidavit further notes that appellee was unable to locate the fire extinguisher despite the fact that

it was located at her feet and then appellee was unable to operate the buckle or replace the pin on

the extinguisher.   Appellee also admitted to having one drink and refused to perform the

standardized field sobriety test. Officer Stephens noted in his affidavit that appellee was “heavy

footed” when she walked and her eyes were “red” and “watering.” Finally, Officer Stephens

stated in his affidavit that he had seen “intoxicated persons on many occasions in the past” and

that, “based on all of [his] experience and training,” he had determined that appellee was

intoxicated. Under the totality of the circumstances and given the deferential standard by which

we review—and the trial court should have reviewed—a magistrate’s probable cause

determination, we conclude that probable cause existed for the issuance of the warrant because

the magistrate had a substantial basis for concluding that appellee’s blood sample would uncover

evidence of her wrongdoing. See Campos v. State, 623 S.W.2d 657, 660 (Tex. Crim. App. 1981)

(evidence sufficient to demonstrate intoxication where defendant smelled of beer, had “thick-

tongued” speech, and was unsteady on his feet); Kelly v. State, 413 S.W.3d 164, (Tex. App.—

Beaumont 2012, no pet.) (affidavit sufficient to establish probable cause where driver failed to

signal, had strong odor of alcohol, slurred speech, unsure in balance, refused some field sobriety

tests, and failed the test that was performed); Foley v. State, 327 S.W.3d 907, 912 (Tex. App.—

Corpus Christi 2010, pet. ref’d) (facts stating that defendant smelled strongly of alcohol, had red

and glassy eyes, slurred speech, was geographically disoriented, poor balance and refused to

provide a breath or blood sample were sufficient to establish probable cause). Accordingly, we

conclude the trial court erred in granting appellee’s motion to suppress and we sustain the State’s

issue.




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                                        CONCLUSION

       Having sustained the State’s sole issue on appeal, we reverse the trial court’s order

suppressing the results of appellee’s blood test and remand for further proceedings consistent

with this opinion.


                                                         / David Evans/
                                                         DAVID EVANS
                                                         JUSTICE


Do Not Publish
TEX. R. APP. P. 47
140123F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

THE STATE OF TEXAS, Appellant                      On Appeal from the County Criminal Court
                                                   No. 2, Dallas County, Texas
No. 05-14-00123-CR        V.                       Trial Court Cause No. MB13-50157.
                                                   Opinion delivered by Justice Evans.
JESSICA RUTH MOORE, Appellee                       Justices Bridges and Lang participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings consistent with this opinion.


       Judgment entered this 30th day of October, 2014.




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