                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00175-CR


DARRELL HUGHEY                                                        APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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      FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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      Darrell Hughey appeals from his conviction––and sentence of ninety days’

confinement, probated for twenty-four months––pursuant to a plea bargain for

misdemeanor driving while intoxicated.        In one issue, he challenges the trial

court’s denial of his pretrial motion to suppress. We affirm.




      1
       See Tex. R. App. P. 47.4.
                                   Background

      Appellant moved to suppress his blood test results that the police obtained

pursuant to a warrant; appellant contended that the warrant did not provide a

reasonable basis for the magistrate to determine that probable cause existed that

he had committed DWI. He also moved for a Franks hearing on the veracity of

the officer’s statement in the supporting affidavit that appellant had refused to

voluntarily give a breath sample and that during an interview in the intoxilyzer

room, appellant had stated, “I refuse everything and do not wish to continue.”

Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978).            In addition, the

affidavit does not divulge that only Joel Rivera, an off-duty police officer,

witnessed the driving facts included in the affidavit (rather than the physical

condition of appellant), which the swearing officer did not personally observe.

      The trial court held appellant’s motion to suppress hearing and Franks

hearing together.   The State agreed to redact the paragraph of the affidavit

regarding appellant’s alleged refusal of a breath test. The State also conceded

that the affidavit does not include information about Rivera’s credibility, veracity,

or status as a police officer and that the affidavit does not specifically state that

only Rivera witnessed the driving facts.      The State argued, however, that a

reading of the entire affidavit makes it clear that the swearing officer did not

witness the driving facts and thus did not mislead the magistrate by failing to

specifically say that she did not witness any driving facts personally.




                                         2
                    Standard of Review and Applicable Law

      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 v. State, 143 S.W.3d 808,

810–11 (Tex. Crim. App. 2004). In Swearingen, the court of criminal appeals

reiterated that Texas appellate courts are to follow the United States Supreme

Court’s traditional standard for reviewing probable cause:               whether the

magistrate had a substantial basis for concluding that a search would uncover

evidence of wrongdoing. Id. at 810 (citing Illinois v. Gates, 462 U.S. 213, 236,

103 S. Ct. 2317, 2331 (1983)).

      An affidavit supporting a search warrant begins with a presumption of

validity. Cates v. State, 120 S.W.3d 352, 355 (Tex. Crim. App. 2003). In Franks,

the United States Supreme Court held that when a “defendant makes a

substantial preliminary showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth, was included by the affiant in

the warrant affidavit, and if the allegedly false statement is necessary to the

finding of probable cause, the Fourth Amendment requires that a hearing be held

at the defendant’s request.” 438 U.S. at 155–56, 98 S. Ct. at 2676.

      We review a trial court’s decision on a Franks suppression issue under the

same standard that we review a probable cause deficiency, a mixed standard of

review: “We give almost total deference to a trial court’s rulings on questions of


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historical fact and application-of-law-to-fact questions that turn on an evaluation

of credibility and demeanor while we review de novo application-of-law-to-fact

questions that do not turn upon credibility and demeanor.” Johnson v. State, 68

S.W.3d 644, 652–53 (Tex. Crim. App. 2002); Fenoglio v. State, 252 S.W.3d 468,

473 (Tex. App.––Fort Worth 2008, pets. ref’d). However, in a Franks hearing,

the trial court may consider not only the probable cause affidavit but also the

evidence offered by the party moving to suppress because this attack on the

sufficiency of the affidavit arises from claims that it contains false statements.

Franks, 438 U.S. at 155–56, 98 S. Ct. at 2676; Cates, 120 S.W.3d at 355 n.3;

Fenoglio, 252 S.W.3d at 473.

       Under Franks, a search warrant affidavit must be voided, and any

evidence obtained pursuant to the search warrant excluded, if a defendant can

establish by a preponderance of the evidence at a hearing that the affidavit

contains a false statement made knowingly or intentionally, or with reckless

disregard for the truth. 438 U.S. at 155–56, 98 S. Ct. at 2676; Fenoglio, 252

S.W.3d at 473. Then, setting the false material aside, the movant must also

show that the affidavit’s remaining content is insufficient to establish probable

cause. Franks, 438 U.S. at 155–56, 98 S. Ct. at 2676; Fenoglio, 252 S.W.3d at

473.




                                        4
                                      Analysis

      Here, the redacted affidavit provided to the trial court stated as follows:

      Specifically, I witnessed and I was informed by Joel Rivera of / the
      following:

      Driving (DWI, BWI, FWI) facts:

      Suspect was traveling approximately 40 mph on I20 and then on
      360, where the actual speed limit is 60 mph. Suspect left his lane of
      traffic several times, swerving in and out of his lane. Suspect was
      stopped at a green signal before proceeding through and again
      swerving in and out of his lane. Suspect crossed the dividing lines,
      and then he made a u-turn returning to the intersection he previously
      had crossed. Suspect was then stopped in a drive thru fast food
      lane, where your affiant made contact with the suspect.

      Observations of suspect’s physical condition:

      Suspect had bloodshot, watery eyes; the smell of an alcoholic
      beverage on his breath; suspect was slow to respond to questions;
      suspect displayed slow and uncoordinated reaction times; suspect
      stated that he had drank beer and been to a party where they served
      him “I don’t know what.”

      Results of field sobriety tests given to suspect:

      Suspect refused to perform any standardized field sobriety tests.
      When your affiant asked the suspect if he had been drinking, he
      stated that he had been drinking “beer.” When asked exactly how
      much, he responded “apparently too much.” Suspect gave no
      reason for refusing the tests, but said “if you are going to arrest me,
      then arrest me.” After arrested, suspect stated “I would have failed
      the tests anyway and didn’t want to embarrass myself.”

      If all of the driving facts were redacted from the affidavit, the affidavit would

have still supported the magistrate’s determination of probable cause.              The

officer stated that she made contact with appellant when he was stopped in a fast

food drive-through lane; he had bloodshot, watery eyes, the smell of an alcoholic


                                          5
beverage on his breath, was slow and uncoordinated in his reaction times, and

admitted that he had been drinking beer and had been to a party.              Thus,

regardless of whether the affidavit sufficiently showed Rivera’s identity or

credibility, the remainder supports the magistrate’s probable cause conclusion.

See Denton v. State, 911 S.W.2d 388, 390 (Tex. 1995) (holding that, for

sufficiency purposes, whether person operated vehicle while intoxicated is based

on totality of circumstances showing that person took action to affect functioning

of vehicle in manner that would enable its use); Dornbusch v. State, 262 S.W.3d

432, 433, 436–38 (Tex. App.––Fort Worth 2008, no pet.); Freeman v. State, 69

S.W.3d 374, 375–76 (Tex. App.––Dallas 2002, no pet.).2 We conclude and hold

that the trial court did not err by denying appellant’s motion to suppress.




      2
        We additionally agree with the analysis of similar facts set forth in an
unpublished case, Wheat v. State. No. 14-10-00029-CR, 2011 WL 1259642, at
*5 (Tex. App.––Houston [14th Dist.] Apr. 5, 2011, pet. ref’d) (mem. op., not
designated for publication). Although the appellant in Wheat (like the appellants
in the cases cited above) was found asleep in a parked car, here appellant was
awake and stopped in a drive-through lane; thus, the conclusion that he was very
recently operating the vehicle is even more strongly supported.


                                          6
                               Conclusion

      Having overruled appellant’s sole issue, we affirm the trial court’s

judgment.




                                             TERRIE LIVINGSTON
                                             CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 15, 2012




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