AFFIRM; and Opinion Filed October 30, 2013.




                                               In The
                                 1Iøurt øf ppcat
                         3FiftL Oitrict nf Iixa at at1a
                                          No. 05-12-00420CR

                            JUSTIN MICHAEL KRISS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the County Criminal Court No. 2
                                   I)allas County, Texas
                          Trial Court Cause No. MB2O1O-60533

                              MEMORANDUM OPINION
                           Before Justices Bridges, Fillmore, and Lewis
                                    Opinion by Justice Lewis
       The issue in this misdemeanor driving while intoxicated case is the admissibility of blood

test results obtained based on an allegedly defective probable cause affidavit. We affirm the trial

court’s judgment. Because all dispositive issues are settled in law, we issue this memorandum

opinion. Tux, R. APP. P. 47.2(a), 47.4.

Background

       Appellant Justin Michael Kriss moved pre-trial to suppress his blood-alcohol test results

showing a level in excess of .08. Appellant argues the drawing of his blood was an unlawful

seizure in violation of the United States and Texas constitutions because the affidavit in support

of the warrant was invalid. Specifically, appellant complains the affidavit was invalid because it

failed to recite facts establishing appellant’s blood constituted evidence that he committed the
offense for which he was charged and the affidavit failed to contain facts establishing appellant

“operated a motor vehic1e” The trial court denied the motion, concluding the affidavit “is

sufficient to support a magistrate drawing inferences that this officer” had knowledge of the

offense, The trial   court   further concluded the affidavit sufficiently contained the facts necessary

and sustained the “blood warrant,” Appellant subsequently waived his right to a jury trial and

entered a plea of guilty. The trial court assessed appellant’s punishment at confinement for 180

days, suspended for two years, and a fine of $800.

       On appeal, appellant complains the trial court erred by denying his motion to suppress

because the search warrant affidavit: 1) failed to recite facts that appellant “operated a motor

vehicle” and 2) failed to establish appellant’s blood constituted evidence that he committed the

offense for which he was arrested.

Standard of Review

       We review a trial judge’s rnotionto-suppress ruling under a bifurcated standard. Bonds v.

State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013). We give “almost total deference to a trial

court’s determination of historical facts” and we apply a de novo standard to the trial court’s

application of the law. C’arrnouche v. State, 10 S.W.3d 323, 327 (Tex. Crim, App. 2000);

Guzrnan v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

       The Fourth Amendment protects individuals against unreasonable searches and seizures.

U.S. CONST. amend. IV. A blood draw constitutes a search under the Fourth Amendment,

however, the Constitution is not offended if the draw occurs pursuant to a valid search warrant.

Schrnerber v. califtrnia, 384 U.S. 757, 769—70 (1966); Beeman v. State, 86 S.W.3d 613, 616

(Tex. Crim. App. 2002). Before a search warrant may issue, sufficient facts to establish probable

cause that a specific offense has been committed must be presented to an issuing magistrate.

TEX. CODE CRIM. PROC. ANN. art. 18.01 (West Supp. 2012), A search warrant must be based on

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probable cause as determined torn the lout corners of an affidavit. U .S. (‘uNST. amend. IV: Thx.

CONST, art. I,              Trx. CODE (‘RIM. PRO(’. ANN. art. 1 8() 1(b) (“A   5WOffl   affidavit

establishing probable cause shall he filed in every instance in which a search warrant              is


requested”). “Probable cause exists when, under the totality of the circumstances, there is a fair

probability or substantial      chance   that contraband or evidence of a crime will be found at the

specified location.” Bonds, 403 S,W,3d at $73. We will uphold a magistrate’s probable cause

determination provided the magistrate had a substantial basis for concluding that probable cause

existed.   Id. When we review an issuing magistrate’s determination, we “interpret the affidavit in

a commonsensical and realistic manner, recognizing that the magistrate may draw reasonable

inferences:’ State   i’.   McLaui, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011 ). “When in doubt, we

defer to all reasonable inferences that the magistrate could have made.’ hi. (quoting Rodrigue      i’.


.State, 232 S.W.3d 55. 61 (Tex. Crirn. App. 2007).

Analysis

        Appellant first complains there are no facts recited in the affidavit to establish probable

cause to believe that the offense of driving while intoxicated (“DWI”) was committed, because

there are no facts contained in the affidavit to show that appellant was operating a motor vehicle

prior to his arrest for that offense. The State contends the facts in the affidavit are sufficient and

the magistrate made a reasonable inference.

        We conclude appellant has not established a deficiency in the search warrant affidavit.

Appellant argues the recitation in the affidavit that appellant had committed the offense of DWI

is a mere conclusion and not sufficient to support a magistrate drawing inferences to find

probable cause. However, our review of the affidavit reveals it also states the following specific

facts, in pertinent part:

        5. On the 3
                  rd
                     day of July, 2010, Affiant RESPONDED TO A CALL FOR
        SERVICE regarding a male passed out behind the wheel on [sici a 2004 Blue
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       Ford F150 which was being driven by Kriss, justin, Michael, the same person
       identified in paragraph 1 above, at 5500 F. Mockingbird which was in Dallas,
       Dallas County, Texas.

(emphasis in original). The chart in the affidavit regarding the performance of appellant’s field

sobriety tests indicates appellant could not perform the “Walk and Turn” or “One Leg Stand”

tests, that his driving habits prior to the stop were “Observed, indicated impaired driver,” the

odor of an alcoholic beverage was “Strong,” his speech was “Extremely Slurred,” and his eyes

were “Bloodshot.” (emphasis added). Based on these facts, the totality of the circumstances, and

reasonable inferences derived from these facts, we conclude the magistrate was justified in

finding probable cause that appellant had operated a motor vehicle while intoxicated and

evidence of that crime would be found through a sample of appellant’s blood. See Bonds, 403

S.W.3d at 874 (either directly or through reasonable inference, affidavit satisfactorily established

nexus between criminal activity, things to be seized, and place to be searched); see also Hughes

v. State, 334 S,W.3d 379, 387 (Tex. App.—Amarillo 2011, no pet.) (“failure to detail the

operative facts of the initial stop is not fatal to the magistrate’s overall determination that

probable cause to issue the warrant existed because the issue is not reasonable suspicion to detain

appellant, rather it is probable cause to authorize the issuance of a search warrant following the

detention).

       Appellant also complains there are no facts recited in the affidavit to establish probable

cause to believe that the seizure of appellant’s blood constituted evidence of the offense for

DWL The State contends the facts in the affidavit are sufficient and the magistrate made a

reasonable inference.

       Again, we conclude appellant has not established a deficiency in the search warrant

affidavit. Appellant argues the recitation in the affidavit that describes the offense as DWI,

named appellant as “the suspected party,” and recited a “belief” that appellant’s blood

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constituted evidence of the of lense fails to show why or how the evidence sought to be seized

constitutes evidence, The affidavit states the following, in pertinent part:

        3. It is the belief of Affiant that said suspected party has possession of and is
        concealing the following property: human blood.

        Said propertY constitutes evidence that the offense described in paragraph 4 below
        was coiiunitted and that said suspected party committed the ollense described.



Appellant argues these are allegations and not the required facts that connect the item to be

seized with the offense charged to show that the item is evidence of the crime. While appellant

does provide this Court with citations to legal authority for his proposition that facts in an

affidavit for an evidentiary search warrant must connect the items to he seized with the offense

charged, he fails to provide this Court any legal authority regarding a warrant for a blood draw.

The essence of this argument is to require    us   to hypertechnically construe the language of the

aflidavit.   See Bonds, 403 S.W.3d at 873: Rodriguez, 232 S.W.3d at 59. Such an analysis denies

this Court, as the reviewing court, the right to interpret the affidavit in a      commonsensical

manner, recognizing that the magistrate may draw reasonable inferences from the facts and

circumstances contained within the affidavit’s four corners. Bonds, 403 S.W.3d at 873. The

affidavit states that the suspected offense is DWI and that appellant refused when asked for a

sample of his breath and blood. The affidavit then states appellant is the person arrested, and that

blood is the property being concealed. The affidavit also states the property constitutes evidence

that the offense was committed. It only takes a reasonable inference to realize the magistrate

knows that the blood is being requested to analyze it for the presence of blood alcohol for use in

a prosecution [‘or DWI .See Rodriguez. 232 S.W.3d at 61; see also Hughes, 334 S.W.3d at 387

(holding that affidavit need not state how blood draw would constitute evidence of driving while

intoxicated because magistrate could draw logical inferences from affidavit’s facts: “It takes no

great leap of faith or unknown intuitiveness to realize that the magistrate knows that the blood is
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being requested to analyze it for the presence of blood alcohol for use in a prosecution for

DWI,”). Because the penal code defines in part the offense of DWI by a measurement of the

defendanCs blood alcohol concentration—”the number of grams of alcohol per 100 milliliters of

blood”— it seems obvious that the purpose of obtaining a blood sample in such a case would be

to test it for the presence of intoxicants and to make the test results available as evidence of the

commission of the DWI offense, State v. Webre, 347 S.W.3d 381, 387 (Te. App.—Austin 2011,

no peE) (citing TEX. PENAL CODE ANN, § 49.0 1(l)(B)). We conclude this affidavit contains

sufficient facts to show probable cause which supports the issuance of the search warrant.

conclusion

        We overrule appellant’s issue and affirm the trial court’s judgment.




                                                     /David_Lewis!
                                                     DAVID LEWIS
                                                     JUSTICE

Do NOT PUBLISH
Trix. R. APP. P. 47.

I 20420F.U05




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                                        JUDGMENT

JUSTIN MICHAEL KRISS, Appellant                       On Appeal from the County Criminal Court
                                                      No. 2, Dallas County, Texas
No, 05 1 20O420CR            V                        Trial Court Cause No. MB2Ol06O533.
                                                      Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appeflee                          Justices Bridges and Fillmore participating.

       Based on the Court’s opinion of this date, the judgment of the trial   court is   AFFIRMED.


                        th
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Judgment entered this        day of October, 2013




                                                     /David Lewis!
                                                     DAVID LEWIS
                                                     JUSTICE




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