                                                                       PD-0441-15
                                                     COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                     Transmitted 5/20/2015 3:14:48 PM
                                                      Accepted 5/22/2015 10:43:19 AM
                                                                       ABEL ACOSTA
                           NO. PD-0441-15                                      CLERK
                              IN THE
                    COURT OF CRIMINAL APPEALS
                            OF TEXAS

                     NO. 11-13-00056-CR
                 IN THE COURT OF APPEALS
            ELEVENTH JUDICIAL DISTRICT OF TEXAS
                     EASTLAND, TEXAS

THE STATE OF TEXAS               §       APPELLEE
                                 §
V.                               §
                                 §
GORDON STANLEY BLOCKER           §       APPELLANT
__________________________________________________________________
           APPEAL FROM COUNTY COURT AT LAW NO. 2
        FORT WORTH, TEXAS – TRIAL COURT NO. 1266266

      APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________

                                   W. TROY McKINNEY
                                   SCHNEIDER & McKINNEY, P.C.
                                   TEXAS BAR NO. 13725020
                                   440 LOUISIANA, SUITE 800
                                   HOUSTON, TEXAS 77002
     May 22, 2015                  (713) 951-9994
                                   (713) 224-6008 (FAX)
                                   wtmhousto2@aol.com

                                   J. GARY TRICHTER
                                   TRICHTER & MURPHY, P.C.
                                   TEXAS BAR NO. 20216500
                                   2000 SMITH
                                   HOUSTON, TEXAS 77002
                                   713-524-1010
                                   713-524-1072 (FAX)
                          Identity of Parties and Counsel

      The following is a complete list of all parties to the trial court’s judgment,
and the names and addresses of all trial and appellate counsel:

Gordon Stanley Blocker                  -       Appellant

State of Texas                          -       Appellee

W. Troy McKinney                        -       Counsel on appeal
440 Louisiana Street, Suite 800
Houston, Texas 77002

William S. Harris                       -       Counsel at trial
307 West 7th Street
Suite 1905
Fort Worth, Texas 76102

J. Gary Trichter                        -       Counsel at trial and on appeal
2000 Smith Street
Houston, Texas 77002

Anna R. Summersett                      -       Assistant District Attorneys at trial
401 W. Belknap Street
Fort Worth, TX 76196

Benson Varghese
401 W. Belknap Street
Fort Worth, TX 76196

Charles M. Malin                        -       Assistant District Attorney on appeal
401 W. Belknap Street
Fort Worth, TX 76195

Hon. Brent A. Carr                      -       Trial Judge




                                            i
                                                 Table of Contents

                                                                                                                      Page

Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

List of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

Procedural History.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

Ground for Review One. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

         The court of appeals erred in determining that the search warrant
         affidavit was legally sufficient to support a probable cause
         determination.

Ground for Review Two. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

         The court of appeals erred in finding that the “magistrate could have
         found the following facts from [the] affidavit” without addressing the
         arguments raised by Appellant with respect to those alleged facts.

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Reason for Granting Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

                                                               ii
Appendix A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Appendix B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22




                                                           iii
                                              List of Authorities


Adair v. State,
      482 S.W.2d 247
      (Tex. Crim. App. 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Armstrong v. State,
     845 S.W.2d 909
     (Tex. Crim. App. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Ashcraft v. State,
      934 S.W.2d 727
      (Tex. App.—Corpus Christi
      1996, pet. ref'd).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Cassias v. State,
      719 S.W.2d 585
      (Tex. Crim. App. 1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5,15,18

Clay v. State,
      391 S.W.3d 94
       (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Curry v. State,
      815 S.W.2d 263
      (Tex. App.--Houston [14th Dist.]
      1991, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,15

Crider v. State,
      352 S.W.3d 704
     (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Davis v. State,
      202 S.W.3d 149
      (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,16



                                                          iv
Ford v. State,
      158 S.W.3d 488
      (Tex. Crim. App. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Franks v. Delaware,
     438 U.S. 154 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Gordon v. State,
     801 S.W.2d 899
     (Tex. Crim. App. 1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,14

Illinois v. Gates,
       462 U.S. 213 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Jordan v. State,
     342 S.W.3d 565
     (Tex. Crim. App. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Kennedy v. State,
     338 S.W.3d 84
     (Tex. App.-- Austin 2011, no pet.) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,14

King v. State,
      848 S.W.2d 142
      (Tex. Crim. App. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Mayfield v. State,
      800 S.W.2d 932
      (Tex. Crim. App. 1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Rodriguez v. State,
      232 S.W.3d 55
      (Tex.Cirm.App.2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,6

Rumsey v. State,
     675 S.W.2d 517
     (Tex. Crim. App. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,14


                                                        v
Sims v. State,
      99 S.W.3d 600
      (Tex. Crim App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Starkey v. State,
      704 S.W.2d 805
      (Tex. App.--Dallas 1985, pet. ref'd) .. . . . . . . . . . . . . . . . . . . . . . . . . . 6,14,18

Torres v. State,
      182 S.W.3d 899
      (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,16,18

United States v. Leon,
      468 U.S. 897 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Weatherford v. State,
     828 S.W.2d 12
     (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Wood v. State,
     828 S.W.2d 13
     (Tex. Crim. App. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

                                           Other Statues & Rules

TEX. CODE CRIM. PRO. Art. 18.02 (10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

TEX. R. APP. P. 47.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,17

TEX. R. APP. P.
      66.3 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
      66.3(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                            vi
                     Statement Regarding Oral Argument

      Appellant requests oral arguments. The court of appeals opinion departs from

many of this Court’s prior decisions with respect to the consideration of conclusory

and unsupported statements in the search warrant affidavit and wholly failed to

address the merits of Appellant’s claims that statements on which it relied were

conclusory or unsupported.




                                        vii
To the Honorable Judges of the Court of Criminal Appeals:

      Gordon Stanley Blocker, Appellant, by and through his attorneys, W. Troy

McKinney and J. Gary Trichter, files this petition for discretionary review.

                               Statement of the Case

      On November 14, 2011, Appellant was charged by information with driving

while intoxicated, alleged to have occurred on November 12, 2011.               CR6.

Appellant's written motion to suppress was heard in a pretrial hearing conducted on

October 26, 2012. 2RR6. The trial court denied the motion to suppress. 2RR28.

      On January 11, 2013, pursuant to a plea bargain, Appellant pled and was found

guilty and, in accordance with the plea bargain, punishment was assessed at 90 days

confinement, probated for one year, and a $500 fine. CR94. Appellant was specifically

given permission to appeal by the trial court. CR95.

      Appellant filed both his motion for new trial and notice of appeal on January 11,

2013. CR99-102. The motion for new trial was overruled by operation of law.




                                         viii
                                       Procedural History

        The Eleventh Court of Appeals (Eastland) issued its opinion on January 8, 2015.1

Appellant timely filed his motion for rehearing on February 23, 2015.2 The court of

appeals overruled the motion for rehearing on March 20, 2015. Pursuant to the orders

of this court, this petition for discretionary review is due to be filed not later than May 20,

2015.

                                    Ground for Review One

        The court of appeals erred in determining that the search warrant affidavit
        was legally sufficient to support a probable cause determination.

                                    Ground for Review Two

        The court of appeals erred in finding that the “magistrate could have found
        the following facts from [the] affidavit” without addressing the arguments
        raised by Appellant with respect to those alleged facts.




        1
          On February 11, 2013, this appeal was transferred from the Fort Worth Court of
Appeals (cause 02-13-00013-CR) to the Eastland Court of Appeals. A copy of the court of
appeals opinion is attached as Appendix A.
        2
            The court of appeals extended the deadline to file the motion for rehearing to this date.

                                                  ix
                                      Statement of Facts

       The search warrant affiant was K. Truly, an officer with the Hurst Police

Department. As relevant, the affidavit in support of the search warrant stated:3

       4. On o’ [sic] about the 12 day of NOVEMBER, 2011 at approximately
       11:42, the suspect did then and there operate a motor vehicle or watercraft
       in a public place in Tarrant County, Texas while intoxicated by not having
       the normal use of mental or physical faculties by reason of the introduction
       of alcohol, controlled substance, drug, or a dangerous drug the [sic]
       suspect’s body.

       5. The suspect was operating a motor vehicle or watercraft in a public place
       in Tarrant County, Texas on the above date based on the following facts:

       Probable Cause


       [A.]4 Defendant [before described as “Gordon S. Blocker” and as
       “suspect”] was driving southbound in the 100 block of Hurstview Drive
       when defendant’s vehicle was involved in an accident with a parked vehicle
       at a garage sale. Defendant continued southbound then turned eastbound
       onto West Hurst Blvd. (400 West Hurst Blvd). The victim then began
       following the defendant until the defendant stopped in a parking lot at 600
       East Hurst Blvd.

       [B.] Officer Hull #547 arrived on scene first and advised the defendant
       stated he did not realize he was involved in an accident. Defendant was
       swaying, appeared off-balanced and had watery eyes. He appeared to have
       difficulty comprehending an accident occurred and that there was any
       damage to his vehicle.


       3
               A copy of the search warrant and the affidavit are attached as an Appendix B.
       4
               The letter labels are not in the search warrant affidavit. They are included here to
aid in subsequent discussion.

                                                 1
      [C.] I spoke with Defendant on scene. Defendant was stumbling and
      appeared to have difficulty standing straight. His speech was slurred and
      was thick-tongued. Defendant advised he was coming from his residence
      in Grapevine to a hotel in Hurst, located at 800 Thousand Oaks (going the
      wrong direction). Defendant was unsure what street he was on. He stated
      he had not consumed any alcoholic beverages and was not on any
      medication. He also advised he was healthy and had no medical conditions.

      [D.] Due to defendant being involved in an accident and being unaware,
      his slurred speech, watery eyes, and off-balanced movements, I requested
      Defendant to perform SFST’s. Defendant exhibited six clues on the HGN.
      On the Walk and Turn, defendant had difficulty following instructions,
      exhibited seven clues and never fully completed the test. On the One Leg
      Stand, instructions were repeated multiple times and defendant again never
      fully completed the test.

      [E.] I placed the defendant under arrest for D.W.I. During the interview,
      defendant agreed to give a sample of his breath. Results indicated a sample
      of .028 and .029. During the test, defendant advised he may have
      consumed one beverage that contained alcohol. Defendant also agreed to
      give a blood sample, but later refused.

      The court of appeals held that “the magistrate could have found the following facts

from Officer Truly’s affidavit:”

      (1)    Officer Truly was a peace officer with the Hurst Police Department;

      (2)    Appellant was the named suspect, and the Hurst Police Department
             had custody of him;

      (3)    Officer Hull relayed to Officer Truly that Appellant was swaying,
             appeared off-balanced, had watery eyes, said he did not realize he
             was involved in an accident, and appeared to have difficulty
             comprehending an accident occurred and there was any damage to
             his vehicle;



                                           2
       (4)      Officer Truly spoke with Appellant and observed that he was
                stumbling, appeared to have difficulty standing straight, had slurred
                speech, and was thick-tongued;

       (5)      Appellant told Officer Truly that he traveled from Grapevine to
                Hurst and told Officer Truly that he had not consumed any alcoholic
                beverages, was not on any medication, was healthy, and had no
                medical conditions;

       (6)      Officer Truly, based on his observations of Appellant, administered
                standardized field sobriety tests to Appellant, and Appellant showed
                signs of intoxication, so Officer Truly arrested Appellant for DWI;

       (7)      Appellant’s breath test results were 0.029 and 0.026; and

       (8)      Officer Truly requested a blood sample, and Appellant refused to
                give one.


Slip op at 6.

                              Reasons for Granting Review

       The court of appeals erred in holding that the affidavit in this case was sufficient

to support a probable cause determination and by considering conclusory and

unsupported statements in the affidavit. The court of appeals further erred in reaching

its decision by not addressing every argument raised by Appellant, even after the failure

to do so was brought to its attention in the motion for rehearing.

       When the validity of a search warrant is at issue, appellate court’s review the

determination of the validity of the warrant de novo: that is, "the duty of a reviewing

court is simply to ensure that the magistrate had a substantial basis for concluding that

                                              3
probable cause existed." Illinois v. Gates, 462 U.S. 213 (1983) (internal quotations

omitted).

      When reviewing a magistrate's probable-cause determination, the reviewing court

employs a "highly deferential standard," Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.

Crim. App. 2007), and should uphold a determination of probable cause provided that the

magistrate had a "substantial basis" from which he could conclude that a "search would

uncover evidence of wrongdoing," Gates, 462 U.S. at 236. However, the deference

afforded a magistrate's determination "is not boundless," and a reviewing court "will not

defer to a warrant based on an affidavit that does not 'provide the magistrate with a

substantial basis for determining the existence of probable cause.'" United States v.

Leon, 468 U.S. 897 (1984) (stating that courts must insist that magistrates perform job

in neutral and detached manner and not be rubber stamp for police) (quoting Gates, 462

U.S. at 239); Davis v. State, 202 S.W.3d 149, 157 (Tex. Crim. App. 2006) (explaining

that affidavit does not provide substantial basis when "too many inferences must be

drawn.").

      The magistrate may interpret the affidavit in a nontechnical, common-sense

manner and may draw reasonable inferences from the facts and circumstances contained

within its four corners. Flores, 319 S.W.3d, at 702; Cassias, 719 S.W.2d, at 588-89.

However, while “[i]t is one thing to draw reasonable inferences from information clearly

                                           4
set forth within the four corners of an affidavit . . . [it] is quite another matter to read

material information into an affidavit that does not otherwise appear on its face." Crider

v. State 352 S.W.3d 704 (Tex. Crim. App. 2011), citing Cassias v. State, 719 S.W.2d

at 590. Compare Jordan v. State, 342 S.W.3d 565, 571 (Tex. Crim. App. 2011) (date

of arrest stated in affidavit was the same date as the warrant, which was issued at 3:42

a.m. -- thus it was inferable that there was no more than a four hour gap between arrest

and issuance of the search warrant) and Crider 352 S.W.3d at 710 (when date of arrest

is the day before the date of the warrant and the affidavit does not state the time on the

day before, there cannot be an inference of an unbroken chain of events without specific

facts to support such an inference).

       To be proper, the accompanying affidavit must provide enough information to

allow a magistrate to determine if probable cause exists and to ensure that the magistrate's

determination is not "a mere ratification of the bare conclusions of others." Gates, 462

U.S. at 239; see Franks v. Delaware, 438 U.S. 154, 165 (1978) (explaining that affidavit

"must set forth particular facts and circumstances underlying the existence of probable

cause" that allow "magistrate to make an independent evaluation of the matter");

Mayfield v. State, 800 S.W.2d 932, 934 (Tex. Crim. App. 1990) (affidavit must contain

"sufficient information" to support probable-cause finding). Stated differently, an

affidavit will not justify the issuance of a search warrant if it simply contains conclusory

                                             5
statements that provide no basis for determining if probable cause actually exists, see

Rodriguez, 232 S.W.3d at 61; Ashcraft v. State, 934 S.W.2d 727, 733 (Tex.

App.—Corpus Christi 1996, pet. ref'd), and an affidavit will only be sufficient if it

contains allegations that amount to something greater than the affiant's suspicion or the

"repetition of another person's mere suspicion," Adair v. State, 482 S.W.2d 247, 249

(Tex. Crim. App. 1972).

       In evaluating the sufficiency of an affidavit, conclusory statements and those

failing to indicate the source of information are of no probative value and are wholly

insufficient to establish probable cause. Gordon v. State, 801 S.W.2d 899 (Tex. Crim.

App. 1990), (conclusory statements that failed to show the underlying basis of the

conclusions did not demonstrate probable cause); Rumsey v. State, 675 S.W.2d 517, 519

(Tex. Crim. App. 1984) (court rejected the affidavit even though it expressly asserted that

the officer had personal knowledge of the recited conclusions: "the [arresting] officer's

`personal knowledge' is but a conclusion, which like any other conclusion stated in an

affidavit supporting a warrant must be supported by facts" (emphasis in original)); ;

Kennedy v. State, 338 S.W.3d 84, (Tex. App.-- Austin 2011, no pet.) (statements of

officers’ "beliefs" "were too conclusory to properly serve as support for a probable

cause-determination."); Starkey v. State, 704 S.W.2d 805 (Tex. App.--Dallas 1985, pet.

ref'd) (“[e]xcept for an oblique reference to an unnamed police officer, [the affidavit] did

                                             6
not state facts indicating the source of [the affiant's] assertions, the statements of

independent corroboration were minimal, and the conclusory statement that, in the

affiant's belief, the police officer is `credible' is insufficient"); Curry v. State, 815

S.W.2d 263, 265-266 (Tex. App.--Houston [14th Dist.] 1991, no pet.) (rejecting an

affidavit that constituted no more than unsupported hearsay when it failed to contain any

"allegation of personal knowledge of the alleged offense on the part of the affiant," the

"affidavits do not contain underlying facts upon which [the conclusions were based],"

and because the affidavits contained no "facts or circumstances from which the affiant

concluded that . . . the informant was credible and his information reliable.").

       The court of appeal’s opinion at page six states, “[t]he magistrate makes his

determination of probable cause after a review of the entire affidavit, not after a review

of isolated statements.” While this is true, as far as it goes, it is not legally correct to

suggest, much less hold, that a magistrate can consider statements made in the affidavit

that are mere conclusions and for which there is no stated basis or foundation for the

statements. In this regard, the magistrate, like the court of appeals, was compelled to

consider, as argued in Appellant’s brief and never addressed in the court of appeal’s

opinion, whether the “statements” at issue were without legally sufficient foundation or

were mere conclusions.




                                             7
       The court of appeal’s opinion sets out eight “facts” that the court determined the

magistrate could have found from the search warrant affidavit. Assuming for the sake

of argument that all of these facts were properly supported by the affidavit, the totality

of these eight facts are not, as a matter of law, a substantial basis to believe that Appellant

was operating a motor vehicle in a public place while intoxicated and that a blood test

would produce evidence of such alleged intoxication. Missing from these “facts” is any

substantial reason to believe that Appellant had been operating a motor vehicle at any

relevant time, that Appellant had been involved in an accident, that there was any reason

to believe that Appellant’s condition was the result of the introduction of alcohol, drugs,

or any other substance, or that a search warrant for blood was likely to produce evidence

of intoxication.

       Similarly, the court of appeal’s statement on page six of its opinion that the

magistrate could have considered the eight listed facts in conjunction with any

“knowledge, training [or] experience” of either officer is wholly unsupported by anything

in the search warrant affidavit, which contains no mention of any “knowledge, training

and experience” of either officer. Similarly, contrary to the final sentence on page six of

the court of appeal’s opinion, nothing in the eight listed facts provides any basis to

believe “that Appellant had caused an accident that damaged Appellant’s vehicle”

precisely because the search warrant affidavit contained no creditable facts that there had


                                              8
been an accident, much less that Appellant had caused any such accident. Finally, given

the stated breath test results of .028 and .029, and contrary to the first sentence on page

seven of the court of appeal’s opinion, there is nothing in the affidavit providing any

basis, much less a substantial basis, to believe that a blood test taken at some later time

would produce evidence of intoxication that the breath test results had already

demonstrated not to be tenable.

       Of the eight “facts” the court of appeals found that the magistrate could have

found, at least three are either based on mere conclusions or have no stated basis for them

within the four corners of the affidavit.

       The third of the eight “facts” found by the court of appeals was:

       Officer Hull relayed to Officer Truly that Appellant was swaying, appeared
       off-balanced, had watery eyes, said he did not realize he was involved in an
       accident, and appeared to have difficulty comprehending an accident
       occurred and there was any damage to his vehicle.

       This finding is based on the paragraph in the affidavit that:

       Officer Hull #547 arrived on scene first and advised the defendant stated he
       did not realize he was involved in an accident. Defendant was swaying,
       appeared off-balanced and had watery eyes. He appeared to have difficulty
       comprehending an accident occurred and that there was any damage to his
       vehicle.

       As argued in Appellant’s brief, and not addressed in the court of appeals opinion,

the claim in the first sentence of this paragraph that “[o]fficer Hull #547 arrived on scene

first and advised the defendant stated he did not realize he was involved in an accident”

                                             9
neither contains any basis for Truly’s alleged knowledge nor does it attribute the source

of Appellant’s alleged statement. Additionally, nothing in the affidavit factually

describes the location of the alleged “scene.” Finally, nothing in the affidavit states any

factually competent basis for any belief that Appellant had been involved in an accident.

Conclusions added to conclusions do not create facts nor any factual basis for the alleged

conclusions.

       Nothing in the affidavit indicates how or from whom Truly gained his alleged

knowledge that Hull arrived first on the scene. This statement is wholly conclusory.

Nothing in the affidavit advises how or from whom Hull, if he did, came to have a basis

for knowing that “the defendant stated he did not realize he was involved in an accident.”

Simply, nothing in the affidavit indicates or states that Hull ever spoke with Appellant.

For all anyone knows from this affidavit, Hull gained this knowledge from some

unnamed third person who also had no basis of competent knowledge.

       The claims that “[d]efendant was swaying, appeared off-balanced and had watery

eyes. He appeared to have difficulty comprehending an accident occurred and that there

was any damage to his vehicle” is wholly unattributed. Nothing in the affidavit indicates

that this information came from Hull and, even if it did, that Hull had personally observed

it, as opposed to hearing about it from some unnamed third person at the unspecified

“scene.”


                                            10
       Nothing in this affidavit indicates what “scene” Hull arrived at or that it was in any

way related to any of the facts previously related in the affidavit.

       The entirety of this paragraph is unattributed and wholly conclusory. It contains

no statement of any factual basis for or source of any of the factual assertions contained

within it. It has no probative value in the ultimate resolution of whether this affidavit

states probable cause.

       Unfortunately, the court of appeal’s opinion did not address any of Appellant’s

arguments either in the opinion or after the failure to do so was pointed out in the motion

for rehearing.

       The seventh and eight “facts” found by the court of appeals were:

       Appellant’s breath test results were 0.029 and 0.026; and

       Officer Truly requested a blood sample, and Appellant refused to give one.

       These facts were based on the paragraph in the affidavit that:

       I placed the defendant under arrest for D.W.I. During the interview,
       defendant agreed to give a sample of his breath. Results indicated a sample
       of .028 and .029. During the test, defendant advised he may have
       consumed one beverage that contained alcohol. Defendant also agreed to
       give a blood sample, but later refused.

       As argued in Appellant’s brief, nothing in the affidavit indicated that prior to the

arrest there was any basis for believing that Appellant had consumed any alcoholic

beverage, any drug or controlled substance, or any other substance that would make his


                                             11
reported condition unlawful. Though the post-arrest breath test indicated a very low level

of alcohol (.028 and .029 - legally, a .02 and one-quarter of the legal limit), there is no

basis stated in the affidavit for the source of the information concerning the alleged breath

test results (who obtained them or how) nor for believing that there was probable cause

to believe that Appellant was intoxicated on alcohol based on these results.

       Though the affidavit states that “during the [breath] test, Defendant advised he may

have consumed one beverage that contained alcohol,” the basis for this statement is

wholly unattributed. Nothing in the affidavit indicates that Truly was involved in the

breath test, personally heard the alleged statement, or whether or from whom the alleged

statement originated. Likewise, the claim that Appellant originally agreed, but later

refused to provide a blood sample is wholly unattributed and conclusory. Neither of

these statements has any probative value in the ultimate resolution of whether the

affidavit stated probable cause.

       TEX. CODE CRIM. PRO. Art. 18.02 (10) allows for the issuance of a warrant for

blood only when a person “refuses to submit a breath or blood test.” See Clay v. State,

391 S.W.3d 94, 97 n.7 (Tex. Crim. App. 2013). In this instance, it is uncontroverted that

Appellant consented to a breath test and there is nothing other than an unsupported

conclusion indicating that Appellant refused to consent to a blood test. Without probable

cause that Appellant refused a blood test, the warrant could not issue.


                                             12
       Even crediting, for the sake of argument, the statements regarding the one drink

and the breath test results, nothing, even in a conclusory way, indicates that this breath

test result is in any way related to the observed behaviors on the field sobriety tests or that

this low level of alcohol could cause such results. Indeed, given the plethora of reported

cases indicating that six clues on an HGN can only result from alcohol intoxication (and

are only even allegedly validated for that purpose), one could not reasonably conclude

that a breath alcohol level of .028 or .029 would produce such clues. Even if clues on an

HGN test could be caused by something else, this affidavit contained no factual basis for

any such belief.

       More importantly, nothing in the affidavit factually indicated any basis for

believing that Appellant’s condition was the result of the introduction of any drug,

controlled substance, or anything else that would make his condition unlawful. Although

the final sentence on page three of the affidavit states “[s]uspected impairment caused by

[x] Alcohol and Drug,” this statement is wholly conclusory and there is no factual basis

stated for it – with respect to either alcohol or drugs. See Torres v. State, 182 S.W.3d

899 (Tex. Crim. App. 2005) ("the opinions of police officers are [not] reliable . . . if those

opinions are expressed without articulation of supporting facts and circumstances.")

       Just as importantly, nothing in the affidavit indicates that the listed field sobriety

tests, much less the performance and results on them, only (or even probably only) exist


                                              13
in a person not having the normal use of mental or physical faculties by reason of the

introduction of alcohol, a drug, a controlled substance, or some combination thereof.

Any such conclusion, based on the four corners of the affidavit, is mere speculation.

Ironically, there is not even a conclusory statement (even though this affidavit is

otherwise full of them) about the import of the listed results as they relate to drugs,

controlled substances, or a very low alcohol level.

      Unfortunately, once again, the court of appeals did not address any of the

arguments made in Appellant’s brief or again brought to its attention in the motion for

rehearing.

      The court of appeals decision in this case is contrary the holdings of this court in

Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1990), (conclusory statements that

failed to show the underlying basis of the conclusions did not demonstrate probable

cause); Rumsey v. State, 675 S.W.2d 517, 519 (Tex. Crim. App. 1984) (court rejected

the affidavit even though it expressly asserted that the officer had personal knowledge

of the recited conclusions: "the [arresting] officer's `personal knowledge' is but a

conclusion, which like any other conclusion stated in an affidavit supporting a warrant

must be supported by facts" (emphasis in original)); ; Kennedy v. State, 338 S.W.3d 84,

(Tex. App.-- Austin 2011, no pet.) (statements of officers’ "beliefs" "were too conclusory

to properly serve as support for a probable cause-determination."); and Starkey v. State,


                                           14
704 S.W.2d 805 (Tex. App.--Dallas 1985, pet. ref'd) (“[e]xcept for an oblique reference

to an unnamed police officer, [the affidavit] did not state facts indicating the source of

[the affiant's] assertions, the statements of independent corroboration were minimal, and

the conclusory statement that, in the affiant's belief, the police officer is `credible' is

insufficient"). It is also contrary to the court of appeals decision in Curry v. State, 815

S.W.2d 263, 265-266 (Tex. App.--Houston [14th Dist.] 1991, no pet.) (rejecting an

affidavit that constituted no more than unsupported hearsay when it failed to contain any

"allegation of personal knowledge of the alleged offense on the part of the affiant," the

"affidavits do not contain underlying facts upon which [the conclusions were based],"

and because the affidavits contained no "facts or circumstances from which the affiant

concluded that . . . the informant was credible and his information reliable.").

       In the instant case, the affidavit is riddled with mere conclusions and statements

for which there is no stated basis. The court of appeals erred in concluding that the

statements contained in the search warrant affidavit were properly considered by the

magistrate and erred in finding them sufficient to sustain this search warrant on appeal.

This court of appeals further erred in reaching its decision without addressing the

arguments made by Appellant in his brief.

       Similar efforts to “fill in the gaps” by way of alleged “inference” have been

repeatedly rejected by this Court. See Cassias v. State, 719 S.W.2d at 590 ( “[i]t is one


                                            15
thing to draw reasonable inferences from information clearly set forth within the four

corners of an affidavit . . . [it] is quite another matter to read material information into an

affidavit that does not otherwise appear on its face.”); Ford v. State, 158 S.W.3d 488

(Tex. Crim. App. 2005) ( the court declined to invent a factual basis to save "a conclusory

statement that Ford [had] violate[d] a traffic law" based merely on a possibility that there

were underlying facts -- actual facts were required to be in the affidavit); Torres v.

State, 182 S.W.3d 899 (Tex. Crim. App. 2005) (the court again declined to invent

underlying facts when "the opinions of police officers are [not] reliable . . . if those

opinions are expressed without articulation of supporting facts and circumstances." ). See

also Davis v. State, 202 S.W.3d at 157 (“[w]hen too many inferences must be drawn,

the result is a tenuous rather than substantial basis for the issuance of a warrant.”)

       TEX. R. APP. P. 47.1 requires the court of appeals to “hand down a written opinion

. . . that addresses every issue raised and necessary to disposition of the appeal.” To

maintain the integrity of the appellate process, and to guard against reaching conclusions

without addressing the substance of issues raised by an Appellant, this Court has stressed

that Rule 47.1 requires the courts of appeals to do more than what the court of appeals

did here:

       As a general proposition, reviewing courts ought to mention a party(s
       number one argument and explain why it does not have the persuasive force
       the party thinks it does. The party may be dissatisfied with the decision, but

                                              16
       at least he will know the reason he was unsuccessful. This practice
       maintains the integrity of the system and improves appellate practice.

       In this way, Rule 47.1 suggests that the courts of appeals should show their
       work, much as we had to when learning long division in elementary school
       . . .. .

Sims v. State, 99 S.W.3d 600, 603-604 (Tex. Crim App. 2003).

       This rule requires the court of appeals to do more than just set out a party’s

argument. It requires the court to “explain why it does not have the force the party thinks

it does.” See Armstrong v. State, 845 S.W.2d 909, 910 (Tex. Crim. App. 1993) (“the

court below wholly failed to address the question of whether the prosecutor had a

separate duty to disclose the relationship”); King v. State, 848 S.W.2d 142, 143 (Tex.

Crim. App. 1993) (“The court of appeals, while acknowledging the correct rule, failed

to directly address the contention by discussing any of the evidence pointed to by the

State”); Weatherford v. State, 828 S.W.2d 12 (Tex. Crim. App. 1992) (failure to address

preservation issue); Wood v. State, 828 S.W.2d 13 (Tex. Crim. App. 1992) (failure to

address bolstering claim).

       Not once in its opinion, or when again brought to its attention on rehearing, did the

court of appeals ever discuss or address Appellant’s specific claims that the statements

in the affidavit were conclusory and failed to provide any basis for the alleged facts.

Despite being cited and discussed in Appellant’s brief, the court of appeals failed to even



                                            17
cite, much less discuss the applicability of, Gordon, Rumsey, Kennedy, Starkey,

Cassias, Ford, and Torres. In failing to do so, the court of appeals wholly failed to

“explain why [Appellant’s claims did] not have the force [Appellant though it did]” by

not even acknowledging the content of the issues raised, much less discussing or deciding

them.

        This Court should grant review pursuant to TEX. R. APP. P. 66.3 (c) because the

court of appeals decided an important question of state law in a way that conflicts with

the decisions of this Court in Gordon, Rumsey, Kennedy, Starkey, Cassias, Ford, and

Torres.

        This Court should also grant review pursuant to TEX. R. APP. P. 66.3 (f) because

the court of appeals, by failing to address all of the issues and arguments raised by

Appellant, has so far departed from the usual and accepted course of judicial proceedings

as to call for an exercise of this Court’s power of supervision.

                                         Prayer

        Wherefore, premises considered, Appellant prays that this Court grant this petition

for discretionary review, sustain Appellant’s grounds for review, reverse the court of

appeal’s decision, and remand the case for a new trial, or, alternatively, to the court of

appeals for consideration of the issues raised by Appellant but not addressed by the court

of appeals.

                                            18
Respectfully submitted,

Schneider & McKinney, P.C.

/s/ W. Troy McKinney

W. Troy. McKinney
T.B.C. No. 13725020
440 Louisiana
Suite 800
Houston, Texas 77002
713-951-9994
713-224-6008 (fax)
Email: wtmhousto2@aol.com


J. Gary Trichter
T.B.C. No. 20216500
Trichter & Murphy, P.C.
2000 Smith
Houston, Texas 77002
713-524-1010
713-524-1072 (FAX)
Email: gary@texasdwilaw.com

Attorneys for Appellant




  19
                                   Certificate of Service

      This is to certify that on May 20, 2015, a true and correct copy of Appellant’s

petition for discretionary review was served on the Tarrant County District Attorney's

Office by mailing a copy, first class mail, to: 401 W. Belknap Street, Fort Worth, Texas

76196.


                                          /s/ W. Troy McKinney

                                          W. Troy McKinney



                              Certificate of Compliance

      I certify that this document was prepared with Word Perfect X3, and that,

according to that program’s word-count function, the sections covered by TEX. R. APP.

P. 9.4(i)(1) contain 4476 words.



                                          /s/ W. Troy McKinney

                                          W. Troy McKinney




                                            20
                                   APPENDIX A


Court of Appeals opinion submitted as an attachment to the electronic filing.




                                          21
                                  APPENDIX B

A copy of the search warrant and the affidavit is submitted as an attachment to the
electronic filing.




                                        22
Opinion filed January 8, 2015




                                         In The


          Eleventh Court of Appeals
                                      __________

                                No. 11-13-00056-CR
                                    __________

              GORDON STANLEY BLOCKER, Appellant
                                            V.
                     THE STATE OF TEXAS, Appellee


                On Appeal from the County Criminal Court No. 9
                                Tarrant County, Texas
                           Trial Court Cause No. 1266266



                      MEMORANDUM OPINION
      Gordon Stanley Blocker pleaded guilty to driving while intoxicated (DWI). 1
The trial court assessed punishment at confinement for ninety days and also
assessed a $500 fine, but the court suspended Appellant’s confinement and placed



      1
       TEX. PENAL CODE ANN. § 49.04 (West Supp. 2014).
him on community supervision for one year. Appellant challenges the trial court’s
denial of his motion to suppress blood-draw evidence. We affirm.
                               I. The Charged Offense
      The State charged Appellant by information with the offense of DWI. A
person commits the offense of DWI, a Class B misdemeanor, if he is “intoxicated
while operating a motor vehicle in a public place.” PENAL § 49.04. A Class B
misdemeanor is punishable by confinement in jail for a term not to exceed 180
days and by a fine not to exceed $2,000. Id. § 12.22 (West 2011).
                    II. Background Facts and Procedural History
      Patrick Kyle Truly, a patrol officer with the Hurst Police Department,
testified at a pretrial hearing that he received a dispatch to go to a parking lot in the
600 block of East Hurst Boulevard to respond to a report of a hit-and-run accident.
The original accident occurred in the 100 block of Hurstview Drive.
      Officer Truly testified that he arrived at the scene and spoke with
Officer Hull, who was already there. Officer Truly discovered that Appellant was
the driver of one of the vehicles at the scene. Officer Hull informed Officer Truly
that Appellant said that he did not realize he had been in an accident and that
Appellant was “swaying,” “appeared to be off-balance,” and “had watery eyes.”
Officer Truly testified that, in his experience, those were signs of intoxication.
Officer Truly spoke with Appellant, and during that conversation, Appellant was
“stumbling,” “appeared to have difficulty standing straight,” had slurred speech,
was “thick-tongued,” and said that he was “driving from . . . Grapevine to a hotel
in Hurst.” Officer Truly said that Appellant was headed in the wrong direction to
get to the hotel and was unsure of his location.
      Officer Truly administered standardized field sobriety tests to Appellant.
Appellant showed six clues out of eight on the “horizontal gaze nystagmus” test,
seven clues out of eight on the “walk and turn” test, and two clues out of four on

                                           2
the “one leg stand” test.     Appellant’s demeanor and his performance on the
standardized field sobriety tests gave Officer Truly probable cause to arrest
Appellant for DWI; he arrested Appellant and took him to the Hurst jail. While at
the jail, Appellant agreed to take a breath test. The breath test results reflected that
Appellant had a blood alcohol concentration of 0.029 and 0.026. Officer Truly
obtained a search warrant to draw blood from Appellant, and a sample of
Appellant’s blood was taken.         Appellant moved to suppress the blood-test
evidence, and the trial court denied the motion. Appellant pleaded guilty and now
appeals the trial court’s denial of that motion.
                                 III. Issue Presented
      Appellant challenges the trial court’s denial of his motion to suppress
evidence because he claims that the affidavit to obtain the search warrant for a
blood draw failed to show probable cause.
                               IV. Standard of Review
      We examine the totality of the circumstances to determine whether facts
alleged in a probable cause affidavit sufficiently support a search warrant.
Illinois v. Gates, 462 U.S. 213, 230–31 (1983). We will interpret the affidavit in a
common-sense, rather than hyper-technical, manner. Id. at 236. We accord great
deference to the magistrate, who may draw reasonable inferences from the facts
and circumstances alleged, and will uphold the magistrate’s probable cause
determination if he “had a ‘substantial basis for . . . conclud[ing],’ that a search
would uncover evidence of wrongdoing.”             Id. at 236 (alterations in original)
(quoting Jones v. United States, 362 U.S. 257, 271 (1960)). But probable cause is
not shown where the magistrate has drawn too many inferences and the basis for
the affidavit is tenuous instead of substantial. Davis v. State, 202 S.W.3d 149, 157
(Tex. Crim. App. 2006).



                                           3
                                   V. Analysis
       Police may draw a DWI suspect’s blood for investigation when they obtain a
search warrant based on an affidavit that presents facts that establish probable
cause. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; TEX. CODE CRIM.
PROC. ANN. art. 18.01(b), (j) (West Supp. 2014); Beeman v. State, 86 S.W.3d 613,
616 (Tex. Crim. App. 2002). Facts establish probable cause if they show that a
“fair probability” or “substantial chance” exists that contraband or evidence of a
crime will be found at the specified location. Flores v. State, 319 S.W.3d 697, 702
(Tex. Crim. App. 2010) (quoting Gates, 462 U.S. at 238, 243 n.13).              The
magistrate uses the totality of the facts and circumstances in the affidavit to
determine whether probable cause exists. Id. (citing Gates, 462 U.S. at 238).
       Appellant complains that Officer Truly’s affidavit does not show probable
cause that Appellant had operated a motor vehicle, that his physical condition was
due to the introduction of prohibited substances, and that he had refused a blood
test. The probable cause affidavit, which was prepared by Officer Truly, provided
in part:
             5. . . . Defendant was driving southbound in the 100 block of
       Hurstview Drive when defendant’s vehicle was involved in an
       accident with a parked vehicle at a garage sale. Defendant continued
       southbound then turned eastbound onto West Hurst Blvd. (400 West
       Hurst Blvd). The victim then began following defendant until the
       defendant stopped in a parking lot at 600 East Hurst Blvd.

             Officer Hull #647 arrived on scene first and advised the
       defendant stated he did not realize he was involved in an accident.
       Defendant was swaying, appeared off-balanced and had watery eyes.
       He appeared to have difficulty comprehending an accident occurred
       and that there was any damage to his vehicle.

             I spoke with defendant on scene. Defendant was stumbling and
       appeared to have difficulty standing straight. His speech was slurred
       and was thick-tongued. Defendant advised he was coming from his

                                         4
residence in Grapevine to a hotel in Hurst, located at 800 Thousand
Oaks (going the wrong direction). Defendant was unsure what street
he was on. He stated he had not consumed any alcoholic beverages
and was not on any medication. He also advised he was healthy and
had no medical conditions.

       Due to defendant being involved in an accident and being
unaware, his slurred speech, watery eyes, and off-balanced
movements, I requested defendant to perform SFST’s. Defendant
exhibited six clues on the HGN. On the Walk and Turn, defendant
had difficulty following instructions, exhibited seven clues and never
fully completed the test. On the One Leg Stand, instructions were
repeated multiple times and defendant again never fully completed the
test.

       I placed the defendant under arrest for DWI. During the
interview, defendant agreed to give a sample of his breath. Results
indicated a sample of 0.029 and 0.026. During the test, defendant
advised he may have consumed one beverage that contained alcohol.
Defendant also agreed to give a blood sample, but later refused.

      ....

      I made the following observations about the suspect:

             [Under “Balance,” “swaying” and “unsteady” are
      marked; under “Walking,” “staggering” and “swaying”
      are marked; under “Speech,” “slurred” and “thick-
      tongued” are marked; under “Eyes,” “watering” is
      marked; under “Odor of Alcoholic Beverage on breath,”
      “slight” is marked; and beside “Suspected impairment
      caused by:” “alcohol & drug” is marked.]

      6. I have seen intoxicated persons on many occasions in the
past. Based on all of the above and my experience and training, I
determined that the suspect was intoxicated, and I placed the suspect
under arrest for Driving While Intoxicated. I requested a sample of
the suspect’s breath and/or blood, which the suspect refused to
provide.



                                  5
      Appellant complains that portions of the affidavit are conclusory and that the
magistrate had to draw too many inferences to find probable cause. The magistrate
makes his determination of probable cause after a review of the entire affidavit, not
after a review of isolated statements. See CRIM. PROC. art. 18.01(b); Flores, 319
S.W.3d at 702.      The magistrate could have found the following facts from
Officer Truly’s affidavit:
      (1)    Officer Truly was a peace officer with the Hurst Police Department;
      (2)    Appellant was the named suspect, and the Hurst Police Department
             had custody of him;
      (3)    Officer Hull relayed to Officer Truly that Appellant was swaying,
             appeared off-balanced, had watery eyes, said he did not realize he was
             involved in an accident, and appeared to have difficulty
             comprehending an accident occurred and there was any damage to his
             vehicle;
      (4)    Officer Truly spoke with Appellant and observed that he was
             stumbling, appeared to have difficulty standing straight, had slurred
             speech, and was thick-tongued;
      (5)    Appellant told Officer Truly that he traveled from Grapevine to Hurst
             and told Officer Truly that he had not consumed any alcoholic
             beverages, was not on any medication, was healthy, and had no
             medical conditions;
      (6)    Officer Truly, based on his observations of Appellant, administered
             standardized field sobriety tests to Appellant, and Appellant showed
             signs of intoxication, so Officer Truly arrested Appellant for DWI;
      (7)    Appellant’s breath test results were 0.029 and 0.026; and
      (8)    Officer Truly requested a blood sample, and Appellant refused to give
             one.
See Gates, 462 U.S. at 236 (explaining that courts review probable cause affidavits
using common sense). The magistrate also could have inferred that Officer Hull,
who had spoken to Appellant, and Officer Truly, with his knowledge, training, and
experience, had deduced that Appellant had operated a vehicle while intoxicated
and that Appellant had caused an accident that damaged Appellant’s vehicle.

                                         6
Furthermore, the magistrate could have determined that Appellant’s blood sample
was evidence that would confirm Appellant’s intoxication.          See id. at 240
(explaining magistrates may make reasonable inferences from the facts and
circumstances in the affidavit).
      We hold that the affidavit outlined facts that showed a “fair probability” or
“substantial chance” existed that Appellant’s blood contained evidence of DWI.
See Flores, 319 S.W.3d at 702. The magistrate did not err when he found probable
cause based on the affidavit because the totality of the facts and circumstances
outlined in the affidavit provided the magistrate with a substantial basis for
concluding that a search would uncover evidence of wrongdoing. See Gates, 462
U.S. at 236, 238, 240. We hold that the affidavit to obtain the search warrant for a
blood draw showed probable cause. Accordingly, we overrule Appellant’s sole
point of error.
                              VI. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


January 8, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                         7
