      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00575-CR



                                     Peggy Jezek, Appellant

                                                 v.

                                   The State of Texas, Appellee


                 FROM THE COUNTY COURT OF LAMPASAS COUNTY,
       NO. 16,750, HONORABLE WAYNE L. BOULTINGHOUSE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Peggy Jezek was charged with the offense of driving while intoxicated. See Tex.

Penal Code Ann. § 49.04 (West 2003) (person commits offense if he operates motor vehicle in

public place while intoxicated). After her arrest, a search warrant was issued to obtain a sample of

her blood. When the case was set for trial, Jezek filed a motion to suppress the blood test on the

ground that the affidavit filed to obtain the warrant “was insufficient to establish probable cause.”

The trial court denied the motion to suppress. Ultimately, Jezek entered into a plea agreement but

reserved the right to appeal the trial court’s determination regarding her motion to suppress. After

Jezek pleaded guilty, the trial court imposed a sentence of three days’ imprisonment. We will affirm

the judgment of the trial court.
                                          BACKGROUND

               After leaving a party in June 2008, Jezek was pulled over by Deputy Dean Werlinger.

Ultimately, Deputy Werlinger performed field sobriety tests on Jezek, arrested her, and drove her

to jail. Once Jezek was taken to jail, Deputy Werlinger requested that Officer Steve Sheldon help

administer an intoxilizer test. While in custody, Jezek refused to give either a breath or a blood

sample. Because of Jezek’s refusal, Sheldon prepared an affidavit for a search warrant for

Jezek’s blood. After reading the affidavit, a magistrate issued a search warrant at 4:52 a.m. on

June 29, 2008. Once the search warrant was issued, Werlinger transported Jezek to a local hospital,

and a blood sample was taken at 5:05 a.m.

               The issue on appeal relates to the contents of the search warrant affidavit. As

described above, the affidavit was prepared by Officer Sheldon. The affidavit listed Officer

Sheldon’s qualifications, including extensive training “in the investigation of Traffic and Driving

While Intoxicated Offenses.” Further, the affidavit related that Officer Sheldon was asked to assist

in the case at approximately 3:42 a.m. on June 29, 2008.

               In the affidavit, Sheldon specified that it was his belief that “on or about the 29th day

of June, 2008,” Jezek operated a motor vehicle in a public place while intoxicated.1 The affidavit

also chronicled the events leading up to Jezek’s arrest. In particular, the affidavit stated that Deputy

Werlinger noticed Jezek driving with her high beams on, flashed his headlights three times to prompt

Jezek to use her low beams, and eventually pulled Jezek over for failing to dim her headlights.

Further, the affidavit revealed that Jezek told Deputy Werlinger that “she was lost and was trying to


       1
          Although the time of the traffic stop was not listed in the affidavit, the stipulation of
evidence agreed to by the State and by Jezek stated that the traffic stop occurred at approximately
3:00 a.m. on June 29, 2008.

                                                   2
get to Waco.” In addition, the affidavit communicated that Deputy Werlinger attempted to give

Jezek directions but that Jezek seemed “confused.”              Moreover, the affidavit revealed that

Deputy Werlinger asked Jezek if she had been drinking and that Jezek stated that “she had some to

drink earlier in the evening.” The affidavit also explained that after Jezek admitted that she had been

drinking, Deputy Werlinger asked Jezek to step out of the vehicle so that he could perform field

sobriety tests.      Further, the affidavit communicated that as Jezek exited the vehicle,

Deputy Werlinger smelled alcohol.

                  The affidavit also described the following sobriety tests that Deputy Werlinger

performed: the horizontal gaze nystagmus, the walk and turn, and the one leg stand. In addition, the

affidavit stated that individuals displaying four or more clues on the horizontal-gaze-nystagmus test,

two or more clues on the walk-and-turn test, or two or more clues on the one-leg-stand test are likely

legally intoxicated. Moreover, the affidavit revealed that when Deputy Werlinger performed the

three tests, he observed six clues on the horizontal-gaze-nystagmus test, six clues on the walk-and-

turn test, and three clues on the one-leg-stand test.

                  In addition to reporting the test results, the affidavit stated that after performing the

tests, Deputy Werlinger arrested Jezek for driving while intoxicated and drove her to the police

station. Further, the affidavit revealed that Deputy Werlinger and Officer Sheldon repeatedly asked

Jezek to take the intoxilizer test, that Jezek never stated whether she would or would not submit to

the test, that they eventually warned Jezek that her decision to not provide an answer would be

treated as a refusal to take the test, and that they ultimately treated her responses as a refusal.

Regarding the refusal, the affidavit also specified that intoxicated individuals often refuse to submit



                                                     3
breath samples. Finally, the affidavit requested, in light of the preceding, that the magistrate issue

a search warrant authorizing the police to obtain a sample of Jezek’s blood.


                                           DISCUSSION

                In one issue on appeal, Jezek asserts that the trial court erred by denying her motion

to suppress. When reviewing a trial court’s ruling on a motion to suppress, appellate courts apply

a bifurcated standard of review. See Muniz v. State, 264 S.W.3d 392, 395 (Tex. App.—Houston

[1st Dist.] 2008, no pet.). Under that standard, appellate courts “give almost total deference to a

trial court’s determinations of historical facts and review de novo the trial court’s application of

the law.” Id.

                Generally speaking, obtaining a blood sample is a search and seizure. State v. Dugas,

296 S.W.3d 112, 115 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). Accordingly, a search

warrant must be issued before a sample may be taken. Id. The code of criminal procedure allows

for the issuance of a warrant to seize “property or items” that “constitute evidence of an offense.”

Tex. Code Crim. Proc. Ann. art. 18.02(10)(West 2005). “[P]roperty or items” has been construed

to included blood samples. Muniz, 264 S.W.3d at 396. Before a search warrant may properly be

issued, a sworn affidavit must be filed setting forth sufficient facts to show probable cause: “(1) that

a specific offense has been committed, (2) that the specifically described property or items that are

to be searched for or seized constitute evidence of that offense or evidence that a particular person

committed that offense, and (3) that the property or items constituting evidence to be searched for

or seized are located at or on the particular person, place, or thing to be searched.” See Tex. Code

Crim. Proc. Ann. art. 18.01(c) (West Supp. 2009).


                                                   4
                Probable cause exists when a magistrate has “a substantial basis for concluding that

a search would uncover evidence of wrongdoing.” Dugas, 296 S.W.3d at 116. In other words,

probable cause exists when the facts before the magistrate justify a conclusion that the object to be

obtained is probably at the location to be searched at the time that the warrant is to issue. Cassias

v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986). Stated differently, probable cause no longer

exists if it would be unreasonable to assume at the time the warrant is to issue that the item to be

obtained is at the location to be searched. Dugas, 296 S.W.3d at 116.

                When reviewing a magistrate’s decision to issue a warrant, “trial and appellate courts

apply a highly deferential standard” in light of the “constitutional preference” for actions committed

pursuant to a warrant. Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007); see also

Dugas, 296 S.W.3d at 115 (explaining that review of search warrant affidavit is “not de novo” and

that “great deference is given to the magistrates determination of probable cause”). For that reason,

reviewing courts should interpret affidavits “in a commonsensical and realistic manner, recognizing

that the magistrate may draw reasonable inferences.” Rodriguez, 232 S.W.3d at 61. Furthermore,

when reviewing courts are uncertain whether the affidavit was sufficient, they “defer to all

reasonable inferences that the magistrate could have made.” Id. In determining whether there was

probable cause to issue the search warrant, reviewing courts should consider “whether there are

sufficient facts, coupled with inferences from those facts, to establish a ‘fair probability’ that

evidence of a particular crime will likely be found at a given location.” Id. at 62. In other words,

reviewing courts should focus on “the combined logical force of the facts that are in the affidavit”

and not whether there are other facts “that could have, or even should have, been included.” Id. For

the warrant to be proper, the facts set out in the affidavit must not have been “stale” at the time that

                                                   5
the warrant issued. Serrano v. State, 123 S.W.3d 53, 60 (Tex. App.—Austin 2003, pet. ref’d).

Courts determine whether the facts were stale by considering the lapse in time between the events

set out in the affidavit and the issuance of the warrant. Dugas, 296 S.W.3d at 116.

                In her briefs, Jezek asserts that the affidavit failed to establish probable cause because

it failed to establish a fair probability that alcohol would be found in her blood at the time that the

search warrant was signed. In particular, Jezek contends that the affidavit failed to demonstrate

probable cause because it did not establish “when the traffic stop had taken place.”2 Although Jezek

acknowledges that the affidavit mentioned that Deputy Werlinger pulled Jezek over, she notes that

the affidavit did not specifically identify the time at which the traffic stop occurred. Further, Jezek

highlights that the affidavit only related that the alleged crime occurred “on or about” the day that

the search warrant issued. In addition, Jezek points to the portion of the affidavit in which Officer

Sheldon related her assertion that she had been drinking “earlier in the evening.” In light of the

preceding, Jezek insists that “we can only infer that” the traffic stop “likely took place sometime

after 4:00 or 5:00 p.m. on the day before th[e] warrant issued.” Accordingly, Jezek contends that

“there is insufficient evidence set forth in the affidavit to conclude that there is a ‘fair probability’

that evidence of drinking would still exist in the blood at 4:52 a.m.” when the warrant issued. Stated

differently, Jezek insists that it was not possible to determine whether the evidence in the affidavit

was stale at the time that the warrant was issued because “it is impossible to examine the time lapse

between the traffic stop and the issuance of the search warrant.”


        2
          As a preliminary matter, we note that we are not confronted with determining whether the
information contained in the affidavit would be sufficient to render the results of the blood-alcohol
test admissible. Rather, the issue to be addressed is whether the facts that were in the affidavit along
with all reasonable inferences from those facts establish a fair probability that alcohol would be
found in Jezek’s blood.

                                                    6
               Although Jezek insists that the phrase “earlier in the evening” can literally only mean

sometime around 4:00 or 5:00 p.m. on the day before the warrant was issued, a magistrate could have

reasonably inferred a much later time that she had consumed alcohol from her use of the word

“evening.” See Webster’s New Collegiate Dictionary 396 (1973) (defining “evening” as meaning,

among other things, “the period from sunset or the evening meal to bedtime”). Furthermore, given

that the affidavit stated that Deputy Werlinger pulled Jezek over for failing to dim her high beams;

given that Officer Sheldon stated in the affidavit that he was called to help conduct an intoxilyzer

test on Jezek at 3:42 a.m. on June 29, 2008; and given that the police have every incentive to obtain

an accurate alcohol-test result before the alcohol is filtered from the body, a magistrate could

reasonably infer that the traffic stop occurred late on June 28, 2008, or early on June 29, 2008, which

is well past the time suggested by Jezek.

               Further, the affidavit relates the following facts: (1) Deputy Werlinger pulled Jezek

over for failing to dim her high beams despite being prompted on three separate occasions; (2) Jezek

acted confused when talking with Deputy Werlinger; (3) Jezek admitted to drinking prior to driving;

(4) Deputy Werlinger detected the smell of alcohol when Jezek exited her car; (5) there were several

indicators of intoxication present during each of the three field sobriety tests Jezek performed; and

(6) Jezek repeatedly refused to answer whether she would submit either a breath or a blood sample

and was told immediately after the last time that she was asked that her failure to answer the question

would be treated as a refusal. See id. at 117 (outlining similar factors supporting magistrate’s

determination).3


       3
         In her brief, Jezek asserts that this Court should not rely on State v. Dugas in our analysis
because the facts in Dugas are distinguishable. See 296 S.W.3d 112 (Tex. App.—Houston
[14th Dist.] 2009, pet. ref’d). When making this assertion, Jezek notes that the affidavit in Dugas

                                                  7
                Bearing in mind the deferential standard by which we review a magistrate’s probable

cause determination and considering the reasonable inferences that the magistrate could have made,

we cannot conclude that it was unreasonable for the magistrate to surmise that there would still be

some alcohol in Jezek’s blood at the time the warrant was issued. Accordingly, we overrule Jezek’s

issue on appeal.


                                           CONCLUSION

                Having overruled Jezek’s sole issue on appeal, we affirm the judgment of the

trial court.




                                                David Puryear, Justice

Before Justice Patterson, Puryear and Henson

Affirmed

Filed:   August 31, 2010

Do Not Publish


showed that Dugas failed to maintain a single lane while driving, slurred his speech, was unsteady
on his feet, admitted to drinking four beers, and acted “dazed and confused,” see id. at 114, but she
asserts that her level of intoxication was not sufficient “to immediately alert Deputy Werlinger” and,
accordingly, cannot serve to justify a determination that there was probable cause in this case.

         Although Jezek points out that there are differences between the affidavit in this case and in
Dugas, we find nothing in the opinion in Dugas that limits its analysis to identical fact patterns.
Moreover, although nothing in the affidavit in this case indicated that Jezek was swerving or slurred
her speech, Jezek, like Dugas, had multiple indicators of intoxication in all three of her field sobriety
tests, acted confused, admitted to drinking, smelled of alcohol, and took a long time when deciding
whether to provide a breath or blood sample. For those reasons, we find the analysis in Dugas
instructive.

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