                                                                      PD-1673-14
                                                     COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                    Transmitted 2/2/2015 3:18:05 PM
                                                     Accepted 2/4/2015 10:55:20 AM
                                                                       ABEL ACOSTA
                                                                               CLERK



                           PD-1673-14

          IN THE COURT OF CRIMINAL APPEALS OF TEXAS


       JOSE MANUEL BARRIOS, Petitioner/Appellant
                        v.
        THE STATE OF TEXAS, Respondent/Appellee


        PETITION FOR DISCRETIONARY REVIEW
             BY PETITIONER/APPELLANT


ON APPEAL FROM THE SEVENTH COURT OF APPEALS’ JUDGMENT
       AND OPINION IN CAUSE NO. 07-13-00426-CR

                   TRIAL COURT CAUSE NO. 2,798
                   IN THE 287TH DISTRICT COURT
                      BAILEY COUNTY, TEXAS




February 4, 2015                  JULIE GOEN PANGER
                                  Counsel for Petitioner/Appellant
                                  The Kiechler Law Firm
                                  619 Broadway Street
        February 2, 2015          Lubbock, Texas 79401
                                  Telephone: (806) 712-2889
                                  Facsimile: (808) 712-2529
                                  State Bar Number: 24069793
                                  Email: julie@thelubbocklawyer.com
                     IDENTITY OF JUDGE, PARTIES, AND COUNSEL

HON. GORDON H. GREEN ..................................................................... Trial Court Judge
287th District Court
Bailey County, Texas

JOSE MANUEL BARRIOS ..................................................................... Petitioner/Appellant

JUSTIN KIECHLER, JULIE GOEN PANGER. .............................. Trial Counsel for Petitioner
Kiechler Law Firm, PLLC
619 Broadway Street
Lubbock, Texas 79401

JULIE GOEN PANGER ....................................................... Appellate Counsel for Petitioner
The Kiechler Law Firm, PLLC
619 Broadway Street
Lubbock, Texas 79401

THE STATE OF TEXAS ...................................................................... Respondent/Appellee

KATHRYN GURLEY .......................................Trial and Appellate Counsel for Respondent
Bailey County District Attorney
701 Main Street
Post Office Box 729
Friona, Texas 79035




PETITION FOR DISCRETIONARY REVIEW                                                                            i
                                                  TABLE OF CONTENTS

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

Index of Authorities ...............................................................................................................iii

Statement Regarding Oral Argument.................................................................................. iv

Statement of the Case ........................................................................................................... iv

Statement of Procedural History ......................................................................................... iv

Grounds for Review............................................................................................................... v

Argument ................................................................................................................................. 1

          Issue One: The Court of Appeals erred in affirming the trial court’s
          decision that a non-attorney may issue a search warrant for a blood
          specimen, because the language of Texas Code of Criminal Procedure art.
          18.01(j) limits the authority of a magistrate who may issue a search warrant
          for a blood specimen to an attorney who is licensed by the state of Texas.
          2 R.R. 94-106; Op. at 14-20.

Prayer ..................................................................................................................................... 11

Certificate of Service ............................................................................................................ 12

Certificate of Compliance .................................................................................................... 13

Court of Appeals’ Opinion and Judgment ....................................................... Appendix A




PETITION FOR DISCRETIONARY REVIEW                                                                                                            ii
                                            INDEX OF AUTHORITIES

CASES
Badgett v. State,
   42 S.W.3d 136 (Tex.Crim.App.2001) ..................................................................... 4, 5, 8

Boykin v. State,
   818 S.W.2d 782 (Tex.Crim.App.1991) ........................................................................... 4

Ex parte Johnson,
  273 S.W.3d 340 (Tex.Crim.App.2008) ........................................................................... 4

In re Clark,
    977 S.W.2d 152 (Tex.App.—Houston [14th Dist.] 1998) ........................................... 9

Muniz v. State,
  264 S.W.3d 392 (Tex.App.--Houston [1st Dist.] 2008, no pet.) ................................. 7

Sanchez v. State,
   365 S.W.3d 681 (Tex.Crim.App. 2012) ........................................................................ 10

Schmerber v. California,
   384 U.S. 757 (1966) ........................................................................................................ 10

Steering Comms. v. Pub. Util. Comm’n,
    42 S.W.3d 296 (Tex.App.—Austin 2001, no pet.)........................................................ 9

CONSTITUTIONAL AND STATUTORY PROVISIONS
U.S. Const. amend. IV .................................................................................................... 1, 10
U.S. Const. amend. XIV ........................................................................................................ 1
Tex. Const. Art. 1, § 9 ....................................................................................................... 1, 2
Tex. Code Crim. Pro. art. 2.09 .................................................................................... 2, 5, 11
Tex. Code Crim. Pro. art. 18.01 .....................................................................................passim
Tex. Code Crim. Pro. art. 18.02 ................................................................................ 2, 3, 5, 6
Tex. Gov't Code § 311 ....................................................................................................... 4, 5



PETITION FOR DISCRETIONARY REVIEW                                                                                                iii
                  STATEMENT REGARDING ORAL ARGUMENT

      Petitioner Barrios requests that oral argument be granted, because it will assist

the Court in resolving the grounds presented for review.

                            STATEMENT OF THE CASE

      This case concerns whether a search warrant for a blood specimen must be

issued by an attorney licensed by the state of Texas pursuant to article 18.01(j) of the

Texas Code of Criminal Procedure.

      At a pretrial suppression hearing, the trial court denied Barrios’ motion to

suppress his warrantless arrest and the search warrant for his blood specimen. As a

result of the trial court’s ruling, Barrios entered a plea of guilty to driving while

intoxicated, 3rd or more, and he was sentenced to a term of twelve (12) years

confinement in prison. Barrios timely gave notice of appeal.

         STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      The Seventh Court of Appeals in Amarillo, Texas, affirmed the trial court

judgment in an Opinion dated December 2, 2014. Barrios did not file a motion for

rehearing.




PETITION FOR DISCRETIONARY REVIEW                                                     iv
                             GROUNDS FOR REVIEW

      1. The Court of Appeals erred in affirming the trial court’s decision that a non-
         attorney may issue a search warrant for a blood specimen, because the
         language of Texas Code of Criminal Procedure article 18.01(j) limits the
         authority of a magistrate who may issue a search warrant for a blood
         specimen to an attorney who is licensed by the State of Texas. 2 R.R. 94-
         106; Op. at 14-20.




PETITION FOR DISCRETIONARY REVIEW                                                    v
                                     PD-1673-14

                   IN THE COURT OF CRIMINAL APPEALS OF TEXAS

         JOSE MANUEL BARRIOS V. THE STATE OF TEXAS

                   ON APPEAL FROM CAUSE NO. 07-13-00426-CR
                         TRIAL COURT CAUSE NO. 2,798
                    IN THE 287TH JUDICIAL DISTRICT COURT
                            BAILEY COUNTY, TEXAS

               PETITION FOR DISCRETIONARY REVIEW
                    BY PETITIONER/APPELLANT


TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      Petitioner, Jose Manuel Barrios, by and through his attorney on appeal, files

this Petition for Discretionary Review. In support of his request for review, Petitioner

would respectfully show the Court the following:

                                     ARGUMENT

Issue One: The Court of Appeals erred in affirming the trial court’s decision
that a non-attorney may issue a search warrant for a blood specimen, because
the language of Texas Code of Criminal Procedure art. 18.01(j) limits the
authority of a magistrate who may issue a search warrant for a blood specimen
to an attorney who is licensed by the state of Texas. 2 R.R. 94-106; Op. at 14-20.

Reason for Granting Review

      The Court of Appeals has misconstrued article 18.01(j) of the Texas Code of

Criminal Procedure in such a way that caused a violation of Barrios’ rights under the

Fourth and Fourteenth Amendments to the United States Constitution and Article 1,


PETITION FOR DISCRETIONARY REVIEW                                                     1
§ 9 of the Texas Constitution. Specifically, the court of appeals held that a non-

attorney magistrate can issue blood warrants, which does not comport with the

language of article 18.01(j) of the Texas Code of Criminal Procedure.

Magistrates

       Article 2.09 of the Texas Code of Criminal Procedure defines a magistrate and

includes, but is not limited to “judges of the District Court” and “justices of the

peace.” TEX. CODE CRIM. PRO. art. 2.09. It is undisputed that the justice of the peace

who issued the blood warrant for Barrios is a magistrate for purposes of the Texas

Code of Criminal Procedure. See Op. at 14.

Who May Issue a Blood Warrant

       Whereas search warrants may be issued for certain items by any magistrate,

article 18.01(c) limits the persons who may issue warrants under article 18.02(a)(10),

which includes blood warrants.1 TEX. CODE CRIM. PRO. art. 18.01(c). Specifically,

               Except as provided by Subsections (d), (i), and (j), only a
               judge of a municipal court of record or a county court who
               is an attorney licensed by the State of Texas, a statutory
               county court judge, a district court judge, a judge of the Court
               of Criminal Appeals, including the presiding judge, or a
               justice of the Supreme Court of Texas, including the chief
               justice, or a magistrate with jurisdiction over criminal cases
               serving a district court may issue warrants under Article
               18.02(a)(10).


1
 Article 18.02(a)(10) states that “[a] search warrant may be issued to search for and seize: (10)
property or items, except the personal writings by the accused, constituting evidence of an offense
or constituting evidence tending to show that a particular person committed an offense . . .” TEX.
CODE CRIM. PRO. art. 18.02(a)(10).


PETITION FOR DISCRETIONARY REVIEW                                                                     2
TEX. CODE CRIM. PRO. art. 18.01(c)(emphasis added).2 The importance the legislature

placed on the issuing magistrate of a blood warrant being an attorney licensed by the

state is patently obvious.

       The exception enumerated by the Texas Legislature in article 18.01(i) states:

              In a county that does not have a judge of a municipal court
              of record who is an attorney licensed by the state, a county
              court judge who is an attorney licensed by the state, or a
              statutory county court judge, any magistrate may issue a
              search warrant under Subdivision (10) or Subdivision (12)
              of Article 18.02 of this code. This subsection is not
              applicable to a subsequent search warrant under
              Subdivision (10) of Article 18.02 of this code.

TEX. CODE CRIM. PRO. art. 18.01(i). Yet again, the legislature placed clear importance

on magistrates who issue blood warrants being attorneys licensed by the state. Bailey

County, Texas has a district court judge who is an attorney licensed by the state – the

Honorable Gordon H. Green of the 287th District Court in Muleshoe, Texas.

       In 2009, the Texas Legislature added the exception enumerated in 18.01(j) of

the Texas Code of Criminal Procedure, which states that:

              Any magistrate who is an attorney licensed by this state may issue
              a search warrant under Article 18.02(a)(10) to collect a
              blood specimen from a person who:

                      (1) is arrested for . . . [a DWI offense]; and
                      (2) refuses to submit to a breath or blood alcohol
                           test.



2
 Bailey County, Texas has a district court judge, the Honorable Gordon H. Green, who presides
over the 287th District Court, located in Muleshoe, Texas.


PETITION FOR DISCRETIONARY REVIEW                                                               3
TEX. CODE CRIM. PROC. art. 18.01(j). In this third instance, it is clear that the

legislature considers a magistrate who is an attorney licensed by the state to be the

significant factor in the issuance of blood warrants.

       The Court of Appeals incorrectly applied the canons of statutory construction,

which, combined with the intrusiveness of blood warrants, indicate that the issuer of a

warrant for a blood specimen must be an attorney licensed by the state of Texas.

Statutory Construction

The Plain and Ordinary Meaning of Subsection 18.01(j) Dictates that a Blood Warrant May Only
be Issued By a Magistrate Who Is An Attorney Licensed By the State of Texas.
       In construing a statute, a court looks to the literal text of the statute for

meaning, and ordinarily gives effect to that plain meaning, unless application of the

statute’s plain language would lead to absurd results that the legislature could not

possibly have intended, or if the text is ambiguous. See, e.g., Badgett v. State, 42 S.W.3d

136, 138 (Tex.Crim.App. 2001); Ex parte Johnson, 273 S.W.3d 340, 342 (Tex.Crim.App.

2008)(per curiam); Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991). The

court interprets words and phrases in context and construes them according to the

rules of grammar and common usage. TEX. GOV’T CODE ANN. § 311.011 (Vernon

2005) (governing principles of construction of words and phrases under “Code

Construction Act”). Additionally, courts construe statutes, if at all possible, so that no

part is void or redundant, because it is presumed that the legislature intended the




PETITION FOR DISCRETIONARY REVIEW                                                          4
entire statute to be effective. E.g., Badgett, 42 S.W.3d at 139 (citing TEX. GOV’T CODE

§ 311.021(2)).

       Starting with the text of article 18.01(j), the plain and ordinary meaning of the

words of the statute dictate that a blood warrant is only valid if issued by a magistrate

who is an attorney licensed by the state of Texas. Article 18.01(j) permits “any

magistrate who is an attorney licensed by this state” to issue a blood warrant pursuant to

article 18.02(a)(10) from a person who has been arrested for a DWI-related offense

and refuses to submit to a breath or blood alcohol test. See TEX. CODE CRIM. PROC.

18.01(j)(emphasis added). As set forth above, a justice of the peace qualifies as a

magistrate. TEX. CODE CRIM. PROC. Art. 2.09. However, not every magistrate is an

attorney licensed by the state of Texas. See id. In this case, the justice of the peace who

issued the blood warrant for Barrios is not licensed as an attorney by the state. See 4

R.R. Ex. 4; see also C.R. 93-95.

       The plain text of article 18.01, read in its entirety, also indicates that the plain

and ordinary meaning of 18.01(j) requires that a blood warrant be issued by a

magistrate who is an attorney licensed by the state of Texas. Article 18.01(c) provides

the general rule for issuing non-blood search warrants, and the exceptions to those

general requirements. Subsection (c) states,

              E]xcept as provided by Subsections (d), (i), and (j), only a
              judge of a municipal court of record or a county court who
              is an attorney licensed by the State of Texas, a statutory
              county court judge, a district court judge, a judge of the


PETITION FOR DISCRETIONARY REVIEW                                                        5
              Court of Criminal Appeals, including the presiding judge,
              or a justice of the Supreme Court of Texas, including the
              chief justice, or a magistrate with jurisdiction over criminal
              cases serving a district court may issue warrants under
              Article 18.02(a)(10).

TEX. CODE CRIM. PROC. art. 18.01(c). Thus, the plain language of subsection (c)

indicates that (d), (i), and (j), each provide a separate rule concerning who may issue a

valid search warrant pursuant to 18.02(10). It does not state anywhere in section (c)

that sections (d), (i), and (j) are related to each other or apply to each other. Nor do

any of the three subsections (d, i, j) refer to one another.

       If the legislature meant for section (i) to apply as an exception to section (j), it

could have indicated that intent. In article 18.01(h) the legislature specifically provides,

              “Except as provided by subsection (i) of this article, a warrant
              under Subdivision (12), Article 18.02 of this code may only
              be issued by:

              1) a judge of a municipal court of record who is an attorney
              licensed by the state;
              2) a judge of a county court who is an attorney licensed by
              the state; or
              3) a judge of a statutory county court, district court, the
              court of criminal appeals, or the supreme court.

TEX. CODE CRIM. PROC. art. 18.01(h). Because the Texas legislature demonstrated

that if it intended subsection (i) to apply to a separate subsection, it would specifically

so provide, the fact that the legislature did not so provide in subsection (j) is

significant. Not only did the legislature choose not to link subsection (j) to subsection



PETITION FOR DISCRETIONARY REVIEW                                                          6
(i) in any way — as it did in subsection (h) — the legislature specifically indicated in

subsection (c) that subsections (i) and (j) are to be read separately. (The legislature

amended section (c) during the same session that it added section (j)). Accordingly, it

would be a strained interpretation of the plain text of the section 18.01(j), and article

18.01 as a whole, to apply the exception of subsection (i) to subsection (j).

      The canons of statutory construction require that a statute be given its plain

and ordinary meaning. The plain and ordinary meaning of 18.01(j) and article 18.01 as

a whole dictate that only a magistrate who is an attorney licensed by the state of Texas

may issue a valid blood warrant. Therefore, the blood warrant issued for Barrios was

invalid because the justice of the peace who issued the warrant is not an attorney

licensed by the state of Texas.

The Plain and Ordinary Meaning of Subsection 18.01(j) Is Not Ambiguous, Nor Does It Lead to
Absurd Results that the Legislature Could Not Possibly Have Intended.

      “If the plain language of a statute would lead to absurd results, or if the

language is not plain, but rather ambiguous, then and only then, out of absolute

necessity, is it constitutionally permissible for a court to consider, in arriving at a

sensible interpretation, such extra-textual factors as executive or administrative

interpretations of the statute or legislative history.” Muniz v. State, 264 S.W.3d 392

(Tex. App—Houston [1st Dist.] 2008 no pet.).

      As it relates to article 18.01(j), the Texas legislature spoke unambiguously:




PETITION FOR DISCRETIONARY REVIEW                                                        7
              Any magistrate who is an attorney licensed by this state may issue
              a search warrant under Article 18.02(10) to collect a blood
              specimen from a person who:
              (1) is arrested for...[a DWI offense] and
              (2) refuses to submit to a breath or blood alcohol test.

TEX. CODE CRIM. PROC. art. 18.01(j). Article 18.01(j) does not lead to “absurd results

that the legislature could not possibly have intended.” See, e.g., Badgett, 42 S.W.3d at

138. Rather, it is beyond dispute that the legislature intended just what it wrote: a

blood warrant may only be issued by a magistrate who is licensed by the state. And,

this is exactly what the plain language of article 18.01(j) requires.

       The counterargument to this, which the Court of Appeals propounded, is that

subsection (j) limits the number of magistrates who can sign blood warrants in rural

areas, such as Bailey County. In fact, in the Court of Appeals’ opinion, it noted the

intention of the legislature to “expand the number of magistrates who could sign

warrants in rural areas where there were none of the magistrates listed in subsection

(c) to be found. Op. at 19. This counterargument is flawed, however, because Bailey

County does have a magistrate who can issue blood warrants pursuant to article

18.01(c) – the district court judge of Bailey County, who is an attorney licensed by the

state. District Judge Gordon H. Green (the trial court judge in this case) qualifies as a

magistrate under article 2.09 and is an attorney licensed by the state, which explicitly

qualifies him as a magistrate who can issue blood warrants under article 18.01(j).




PETITION FOR DISCRETIONARY REVIEW                                                      8
The Presumption that Purposeful Inclusion of Certain Items in Statute Implies Purposeful Exclusion
of Absent Items Dictates that a Blood Warrant May Not be Issued by a Magistrate Who is Not an
Attorney.
       Generally, “the express mention or enumeration of one thing, consequence, or

class is equal to the express exclusion of all others.” See In re Clark, 977 S.W.2d 152,

156 (Tex.App.—Houston [14th Dist.] 1998)(orig. proceeding). With no mention of

the fact that non-attorneys can issue blood warrants, this Court should presume that

non-attorneys are expressly excluded from issuing such invasive warrants. See id.;

Steering Comms. v. Pub. Util. Comm’n, 42 S.W.3d 296, 302 (Tex.App.—Austin 2001, no

pet.)(applying presumption that purposeful inclusion of certain items in statute

implies purposeful exclusion of absent terms under principle of statutory

interpretation inclusio unius est exclusio alterius). Article 18.01(j) expressly excludes non-

attorneys from those who are allowed to issue blood warrants.

       By allowing a blood warrant to be issued by “any magistrate who is an attorney

licensed by this state,” the Texas legislature provided Bailey County with the ability to

issue valid blood warrants; however, in this case, the arresting officer and justice of

the peace proceeded under the assumption that they had authority to draw blood

under a search warrant affidavit never reviewed by an attorney. Because the arresting

officer and justice of the peace overlooked or misread the specific requirements of

article 18.01(j) — requirements that do not lead to absurd results if their plain

meaning is given effect — the warrant in this case should have been invalidated.




PETITION FOR DISCRETIONARY REVIEW                                                               9
The Blood Warrant and the United States Supreme Court

      The distinction between an attorney and non-attorney issuing a blood warrant

is of particular import, because of the Constitutional implications that arise when a

person’s blood sample is extracted. The Fourth Amendment protects individuals

against unreasonable searches and seizures. U.S. CONST. amend. IV. The non-

consensual extraction of blood implicates privacy rights and falls within the

protections of the Fourth Amendment. See Sanchez v. State, 365 S.W.3d 681, 684

(Tex.Crim.App. 2012). Absent abnormal circumstances, it is only by means of a valid

search warrant that the Constitution is not offended by a non-consensual blood draw.

See id. In Schmerber v. California, the United States Supreme Court explained that

“intrusions into the human body are particularly offensive,” and that “the importance

of informed, detached and deliberate determinations of the issue whether or not to

invade another's body in search of evidence of guilt is indisputable and great.

Schmerber, 384 U.S. 757, 769-70 (1966).

      The Supreme Court’s discussion of the personal intrusiveness of the blood

warrant in Schmerber bolsters what the plain text of article 18.01(j) already made clear:

to issue a blood warrant in Texas, the magistrate must be an attorney licensed by the

state of Texas. See Schmerber, 384 U.S. at 769-70. A plain, literal, common-sense

reading of article 18.01 indicates that the Texas legislature recognized the extremely

sensitive difference between regular evidentiary search warrants, and evidentiary

warrants for a blood specimen, or blood warrants, which culminated in article 18.01(j).

PETITION FOR DISCRETIONARY REVIEW                                                     10
      The blood warrant issued in this case was not valid, because although the

issuing justice of the peace qualifies as a magistrate under article 2.09, she is not an

attorney licensed by the State of Texas; therefore, the warrant she issued for a blood

specimen of Barrios was not valid. The language of article 18.01(j) is clear and

unambiguous, and its application limiting the issuance of blood warrants to attorneys

licensed by the state does not lead to absurd results. The Texas legislature provided

specific, distinct instructions for blood warrants, as opposed to non-blood search

warrants. If the legislature opted to ignore blood search warrant procedures or wanted

other sections to apply to blood search warrants, it could have stated as much.

Because it did not, the blood warrant in this case should have been invalidated by the

trial court, and the Court of Appeals should have reversed the trial court’s decision

not to do so.

                                       PRAYER

      For the reasons set forth above, Petitioner Jose Manuel Barrios requests that

this Court grant his Petition for Discretionary Review and order a brief on the merits

of this case to further consider reversing the judgment of the Amarillo Court of

Appeals with regard to the blood warrant wrongly issued in this case.




PETITION FOR DISCRETIONARY REVIEW                                                    11
                                            Respectfully submitted,


                                            _____________________________
                                            Julie Goen Panger
                                            Attorney for Appellant
                                            The Kiechler Law Firm, PLLC
                                            619 Broadway Street
                                            Lubbock, Texas 79401
                                            Telephone (806) 712-2889
                                            Facsimile (806) 712-2529
                                            Email: julie@thelubbocklawyer.com
                                            State Bar Number 24069793



                             CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing

document was served upon the following parties by electronic service on February 2,

2015:

        KATHRYN GURLEY
        Bailey County District Attorney
        Email: kathryn@khg-law.com


                                            ____________________________
                                            Julie Goen Panger




PETITION FOR DISCRETIONARY REVIEW                                                12
                         CERTIFICATE OF COMPLIANCE
In accordance with Texas Rule of Appellate Procedure 9.4, the undersigned attorney

of record certifies that the Petition for Discretionary Review contains 2,707 words,

excluding those words identified as not being counted in TEX. R. APP. P. 9.4(i)(1), and

was prepared on Microsoft Word 2013®.




                                              _____________________________
                                              Julie Goen Panger




PETITION FOR DISCRETIONARY REVIEW                                                   13
                       Appendix A




PETITION FOR DISCRETIONARY REVIEW   APPENDIX A
                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-13-00426-CR


                            JOSE MANUEL BARRIOS, APPELLANT

                                                     V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 287th District Court
                                       Bailey County, Texas
                   Trial Court No. 2798, Honorable Gordon H. Green, Presiding

                                        December 2, 2014

                                             OPINION
                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Appellant, Jose Manuel Barrios, entered a plea of guilty to the offense of driving

while intoxicated (DWI),1 third or more,2 and, pursuant to a plea agreement following a

denial of his motion to suppress, was sentenced to serve 12 years confinement in the

Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ). Appellant

appeals contending that the trial court erred in overruling his motion to suppress


      1
          See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2014).
      2
          See id. § 49.09(b)(2) (West Supp. 2014).
evidence collected as a result of a warrantless search because: 1) initially, the police

officer lacked reasonable suspicion to detain him; and 2) the officer lacked probable

cause to then arrest him for the offense of DWI. Further, appellant contends that the

trial court erred in denying his motion to suppress the search warrant issued to obtain a

blood specimen because the issuing magistrate is not an attorney licensed to practice

law by the State of Texas. We will affirm the trial court’s ruling.


                           Factual and Procedural Background


       On June 8, 2013, Officer Leonardo Aviles was on duty for the Muleshoe Police

Department and, as a result of a complaint made regarding appellant, went to

appellant’s home to investigate. Upon finding appellant at his residence, Aviles spoke

to him about the complaint and observed that appellant had been drinking. As a result

of his observations and appellant’s admissions that he had been drinking, Aviles

advised appellant that he should not be driving any more that evening.


       Approximately 30 minutes after Aviles’s first interaction with appellant, Aviles

responded to a call from another individual, Chuck Fabela, complaining about appellant

driving by his residence while yelling and making threats directed at Fabela and his

family. After receiving the complaint from Fabela, Aviles drove to appellant’s residence.

Appellant was not at home. Aviles chose to park near appellant’s residence and wait for

him. Soon thereafter, Aviles observed a vehicle stop in front of Fabela’s residence.

According to Aviles, he observed or heard appellant honking his horn and saying

something toward the Fabela residence.




                                              2
       Aviles then attempted to stop appellant, who drove around Aviles’s vehicle and

proceeded to his home.      Aviles followed appellant to his residence and ultimately

arrested him for DWI. No field sobriety tests (FSTs) were administered to appellant at

the scene. Upon arrival at the Bailey County jail, appellant stated he was physically

unable to perform any FSTs. Thereafter, appellant agreed to take an intoxilyzer breath

test. However, when the test was administered, appellant appeared to be blocking the

mouthpiece with his tongue. Based upon appellant’s refusal to submit to a breath test,

a search warrant affidavit to obtain a specimen of appellant’s blood was prepared.


       The search warrant affidavit was presented to Justice of the Peace Debra

Redwine. The record reflects that Redwine is not a licensed attorney in the State of

Texas.   Redwine reviewed the affidavit and signed the search warrant.          A blood

specimen was taken from appellant.


       After appellant was charged by indictment with the offense of DWI, third or more,

his attorney filed a motion to suppress the evidence. Appellant sought to suppress both

his initial detention and subsequent arrest, claiming that Aviles did not have reasonable

suspicion to detain appellant and that, after appellant’s detention, Aviles lacked

probable cause to arrest him for DWI. Appellant then filed an amended motion to

suppress contending that, in addition to the other matters alleged, the search warrant

was invalid because the reviewing magistrate, Redwine, is not a licensed attorney. The

trial court overruled the motion to suppress.


       After the trial court’s ruling on the suppression issues, appellant entered into a

plea agreement and pleaded guilty to the offense of DWI, third or more. Pursuant to the



                                                3
plea agreement, appellant was sentenced to 12 years confinement in the ID-TDCJ.

Appellant now appeals based upon the trial court’s denial of the amended motion to

suppress. We will affirm the trial court’s rulings.


                                    Standard of Review


       A trial court’s denial of a motion to suppress is reviewed under a bifurcated

review process. See Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).

We review the trial court’s factual findings for an abuse of discretion. Id. A trial court’s

application of the law to the facts is reviewed de novo. Id.


       In our case, we will initially review the trial court’s rulings on the questions of

reasonable suspicion to detain appellant and probable cause to arrest appellant under

the bifurcated standard of review. Id. We give almost total deference to the trial court

on questions of credibility and historical fact. See Valtierra v. State, 310 S.W.3d 442,

447 (Tex. Crim. App. 2010). The trial court is the sole trier of fact and judge of the

credibility of the witnesses and the weight to be given their testimony. See id. When,

as here, the trial court makes explicit findings of fact, we are to determine whether the

evidence, when viewed in the light most favorable to the trial court’s ruling, supports the

fact findings. State v. Priddy, 321 S.W.3d 82, 86 (Tex. App.—Fort Worth 2010, pet.

ref’d) (citing State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006)).


       As to the search warrant issue, we note that the fact that Redwine is not a

licensed attorney is not contested. Accordingly, the only question before the Court is

whether the trial court applied the law correctly.       Thus, we review the denial of




                                              4
appellant’s motion to suppress the evidence obtained through the search warrant de

novo. See Turrubiate, 399 S.W.3d at 150.


                          Reasonable Suspicion and Probable Cause


        Appellant’s first issue contends that Aviles lacked reasonable suspicion to initially

detain appellant. Further, if Aviles had reasonable suspicion to detain appellant, he did

not develop any probable cause to believe that appellant had committed the offense of

DWI.


Applicable Law


        The Fourth Amendment to the United States Constitution, along with Article I,

Section 9, of the Texas Constitution protects individuals from unreasonable searches

and seizures. State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013). Article 1.06

of the Code of Criminal Procedure provides that the people shall be secure from all

unreasonable seizures or searches. TEX. CODE                 OF   CRIM. PROC. ANN. art. 1.06 (West

2005).3 Thus, under Texas law, searches and seizures must be reasonable.


        “A law enforcement officer’s reasonable suspicion that a person may be involved

in criminal activity permits the officer to stop the person for a brief time and take

additional steps to investigate further." State v. Kerwick, 393 S.W.3d 270, 273 (Tex.

Crim. App. 2013) (quoting Hiibel v. Sixth Judicial District Court of Nev., 542 U.S. 177,

185, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004)). "An officer must have reasonable

suspicion that some crime was, or is about to be, committed before he may make a


        3
           Further reference to the Texas Code of Criminal Procedure will be by reference to “art. ___,” or
“article ____.”

                                                    5
traffic stop."   State v. Duran, 396 S.W.3d 563, 568 (Tex. Crim. App. 2013) (citing

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011)). Thus, a traffic

stop based upon a reasonable suspicion that some crime was, or is about to be,

committed does not violate Texas law.       See id.   An officer’s determination about

reasonable suspicion must be supported by “specific and articulable facts.” See id. at

568-69 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).

In determining whether the officer had specific and articulable facts, a reviewing court

uses an objective standard. See id. at 569. That is, considering only the information

actually available to the officer at the moment of the seizure or search, would a man of

reasonable caution be warranted to believe that the action taken was appropriate. See

id.


       Under article 14.01(b), "A peace officer may arrest an offender without a warrant

for any offense committed in his presence or within his view."      Art. 14.01(b) (West

2005). Probable cause for a warrantless arrest under article 14.01(b), "may be based

on [an officer's] prior knowledge and personal observations . . . . [A]n officer may rely

on reasonably trustworthy information provided by another person in making the overall

probable cause determination." State v. Woodard, 341 S.W.3d 404, 412 (Tex. Crim.

App. 2011) (quoting Beverly v. State, 792 S.W.2d 103, 105 (Tex. Crim. App. 1990)).

Thus, all of the information to support probable cause does not have to be within an

officer's personal knowledge.    Id.   The ultimate question under article 14.01(b) is

“whether at that moment the facts and circumstances within the officer's knowledge and

of which he had reasonably trustworthy information were sufficient to warrant a prudent

man in believing that the arrested person had committed or was committing an offense.”


                                            6
Id. (citing Steelman v. State, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002), as quoting

Beverly, 792 S.W.2d at 105).


Analysis


       We begin our analysis with the findings of fact entered by the trial court, after

hearing the testimony at the pre-trial hearing on appellant’s motion and amended

motion to suppress the evidence. The trial court made the following findings of fact that

are relevant to our inquiry:


       1. [Appellant] was arrested on or about the 8 th day of June, 2013, . . . for
          the offense of [DWI] by Leonardo Aviles.

       20. On June 8, 2013, [Aviles] was investigating allegations that [appellant]
           threatened Chuck Fabela, a person the officer knew had allegedly
           assaulted the [appellant] prior to this investigaton.

       21. On June 8, 2013, [Aviles] visited the residence of the [appellant] at
           approximately 9:00 p.m. During the visit:

              A. the officer smelled a strong odor of alcoholic beverage on the
                 [appellant’s] breath and observed that his eyes were red;
              B. the [appellant] gave consent to search his vehicle;
              C. during the search of the vehicle, the officer saw an open can of
                 beer in the console which was cold to the touch;
              D. the officer saw seven other cans of beer in the passenger seat;
                 and,
              E. the officer instructed the [appellant] to not drive his vehicle.

       22. About one hour later, [Aviles] observed [appellant] operating his
           vehicle on a public road and heard the [appellant] honk his horn at a
           driveway located at 403 West Boston, Muleshoe, Texas, which was not
           the residence of the [appellant] and which is a violation of the Texas
           Transportation Code as well as a breach of the peace.

       23. [Aviles] attempted to stop the [appellant’s] vehicle, but the [appellant]
           drove away and parked in his driveway. When the officer made
           contact with the [appellant], the [appellant] smelled of alcohol and his
           eyes were red. Also [Aviles] observed that only six cans of beer
           remained in the vehicle.

                                            7
The trial court also made the following conclusion of law that is relevant to our analysis:


       5.     The credibility of the affiant is sufficiently established in the affidavit
              for the search warrant.

The record reveals that the affiant for the search warrant to draw a specimen of

appellant’s blood was Aviles. Further, a review of the affidavit reveals that it recites the

events that led up to and resulted in the ultimate arrest of appellant for the offense of

DWI.


       During the pre-trial hearing, Aviles was the only witness to provide testimony.

Aviles’s testimony can be characterized as somewhat contradictory and, at times,

confusing. His lack of knowledge of the definitions for intoxication and admission that

he did not perform any FSTs on appellant prior to arresting him for DWI can be seen as

problematic. However, the findings of fact filed by the trial court are supported by the

record. See Priddy, 321 S.W.3d at 86.


       Specifically, appellant had two separate interactions with Aviles on the night in

question.   During the first encounter, appellant met with Aviles outside appellant’s

home. Aviles testified that, during this first encounter, he thought appellant appeared

unstable and smelled like alcohol. Further, the record reflects that appellant admitted

he had been drinking beer. While conducting a consent search related to the incident

he was called about, Aviles found that appellant had seven unopened beers in his car

and an eighth beer that was opened. Aviles concluded the first encounter with appellant

by advising him not to be driving anymore that evening.




                                               8
      Approximately 30 minutes later, Aviles received a second call concerning

appellant. The second call was from Chuck Fabela, who advised that appellant was

driving by Fabela’s home yelling threats to kill him and his family. In response to this

report, Aviles went back to appellant’s home but did not find appellant there. Aviles

then pulled down the street, turned his patrol vehicle around, parked and waited. Within

a matter of minutes, Aviles observed a vehicle approaching his direction. However, the

vehicle stopped in front of the Fabela home. Aviles drove toward Fabela’s residence

where he saw a white four-door car parked in front of the driveway of the Fabela

residence. Further, he observed appellant to be the sole occupant and driver. Aviles

testified on direct examination that he observed and heard appellant honk his horn and

shout toward the residence. According to Aviles, such an action would have been a

violation of the Texas Transportation Code. Specifically, parking across the driveway

violated section 545.302, and honking the horn violated section 547.501. See TEX.

TRANSP. CODE ANN. §§ 545.302(b)(1), 547.501(c) (West 2011).


      Aviles testified that, after observing appellant’s activity in front of the Fabela

residence, he turned on his emergency lights and attempted to make a traffic stop.

However, appellant did not stop but instead drove down the street a short distance to

his residence. Aviles followed appellant and eventually confronted him in the driveway

of appellant’s home.


      According to Aviles’s testimony on direct examination, when he approached

appellant in front of his home, Aviles could smell alcohol on his breath, appellant’s eyes

were red, and appellant had difficulty standing up straight.       Prior to detaining or

arresting appellant, Aviles looked into appellant’s car and saw that there were only six

                                            9
cans of beer inside.     At this point in time, appellant was placed in handcuffs and

arrested.


       When asked why he did not have appellant perform any FSTs at the scene of the

arrest, Aviles stated that appellant said he did not want to do any. After taking appellant

to the jail, he was asked to perform FSTs but he refused, claiming to have a sore back

and something wrong with his legs. At the jail, appellant was offered and agreed to take

an intoxilyzer test. However, when the test was administered, appellant refused to

properly complete the test. According to Aviles, appellant was blocking the breath tube

with his tongue.


       The evidence deduced at the pre-trial hearing shows that appellant was stopped

for a violation of the Texas Transportation Code. Such a violation supports the arrest of

appellant without a warrant. See TEX. TRANSP. CODE ANN. § 543.001 (West 2011).

Further, the temporary detention of appellant was supported by his threatening the

residents of the Fabela home. Aviles had information from Fabela that appellant had

been shouting threats toward Fabela and his family. Later, Aviles observed appellant

parked across Fabela’s driveway mouthing something toward the residence. Based

upon his prior conversation with Fabela, Aviles was warranted in detaining appellant to

investigate his reasonable suspicion that appellant was committing the offenses of

disorderly conduct and terroristic threat. See TEX. PENAL CODE ANN. §§ 22.07 (West

2011), 42.01 (West Supp. 2014). Aviles, as demonstrated in the record, had specific

and articulable facts upon which to base a detention of appellant. See Duran, 396

S.W.3d at 568-69.      The record before us clearly demonstrates support for the trial



                                            10
court’s determination that Aviles had probable cause to detain appellant. 4                         See

Gutierrez v. State, 419 S.W.3d 547, 551 (Tex. App.—San Antonio 2013, no pet.)

(holding that probable cause exists when the officer has a reasonable belief that, based

on facts and circumstances within the officer’s personal knowledge, the individual

committed or will soon commit an offense.) Here, the officer observed appellant commit

at least two traffic offenses. This gave him the requisite reasonable suspicion to detain

him, as found by the trial court.


        As to the question of probable cause to arrest appellant for the offense of DWI,

the record again supports the trial court’s determination that such probable cause

existed.    Aviles had two separate opportunities to observe appellant.                       On both

occasions, Aviles noted signs of intoxication, strong odor of alcohol, and red eyes.

Additionally, appellant admitted that he had been drinking beer prior to his first

encounter with Aviles. At the time of the first encounter, Aviles noted one opened and

seven unopened beers in appellant’s car. At the second encounter, there were only six

unopened beers in appellant’s vehicle.             This supports the inference that appellant

continued to drink after his initial encounter with Aviles. Further, Aviles testified that,

prior to placing handcuffs on appellant, he noted that appellant appeared to be unsteady

on his feet.


        To these observations, we add the actions of appellant. First, appellant knew he

had already had one encounter with law enforcement after he had been drinking and

had been advised to not drive anymore that evening.                    Yet, appellant ignored this

        4
          While we agree that there was probable cause to detain appellant, we point out that all that is
required for the temporary detention of one who is suspected of committing an offense is reasonable
suspicion. See Kerwick, 393 S.W.3d at 273.

                                                   11
warning and drove.      This can be seen as a lack of appreciation of his existing

circumstances and diminished judgment. Moreover, there is the commission of two

offenses in the presence of an officer, one of which might be considered the more

serious offense of terroristic threat. After, being observed committing these offenses,

appellant ignored Aviles’s emergency lights and drove around Aviles’s car to return to

his home. Again, this is demonstrative of a lack of judgment which can be explained by

ingestion of alcohol. When the actions of appellant are reviewed objectively, in a totality

of the circumstances review, we cannot say that a reasonable and prudent officer would

not have come to the same conclusion that Aviles did, that is, that appellant committed

the offense of DWI. See Woodard, 341 S.W.3d at 412.


       A review of appellant’s brief reveals that appellant’s contentions are centered on

Aviles’s testimony upon cross-examination. First, Aviles was not sure about many of

the legal principles involved in arresting an individual for the offense of DWI. Next,

Aviles did, in fact, contradict some of the testimony that he had given on direct

examination. Finally, according to appellant’s theory, the lack of FSTs and the content

of the recording of the scene in front of Fabela’s home and at the time of appellant’s

arrest reveal that Aviles did not have probable cause to arrest, rather, that Aviles

arrested based upon a preconceived thought that appellant was intoxicated. Whatever

Aviles’s subjective belief was is not the test, rather the test is an objective test based

upon the totality of the circumstances. See Maryland v. Pringle, 540 U.S. 366, 371, 124

S. Ct. 795, 157 L. Ed. 2d 769 (2003).


       Our review of the record demonstrates, to our satisfaction, that nearly all of

appellant’s factual contentions may be classified as credibility issues.      A reviewing

                                            12
court, such as ours, is directed to give great discretion to the trial court’s determination

of the historical facts. See Valtierra, 310 S.W.3d at 447. We are reminded that the trial

court is the sole trier of fact and judge of the credibility of the witnesses and the weight

to be given their testimony. See id. Finally, the trial court, in its conclusion of law

number 5, found that the affiant for the search warrant was credible. The record shows

that the affiant for the search warrant was Aviles. The record also shows that the facts

put forth in the search warrant affidavit mirror nearly all of the facts Aviles testified to at

the pre-trial hearing. We are left with but one conclusion, the trial court found Aviles to

be a credible witness and we may not, based upon this record, alter that conclusion.

See id.


       As to appellant’s contention that Aviles’s decision to arrest appellant was not due

to the facts and circumstances observed by the officer, but rather, was a result of

Aviles’s preconceived determination that appellant was intoxicated, we note that this

contention is entirely premised on appellant’s perception of Aviles’s subjective belief.

However, instead of the subjective belief of the arresting officer, we must review the

question of probable cause based upon an objective standard. See Pringle, 540 U.S. at

371.


       Accordingly, the trial court did not abuse its discretion in denying appellant’s

motion to suppress the evidence of the initial detention and subsequent arrest of

appellant for DWI.     See Turrubiate, 399 S.W.3d at 150.          Appellant’s first issue is

overruled.




                                              13
                                    Search Warrant


Applicable Law


      The fact that the magistrate who issued the search warrant for appellant’s blood

is not a licensed attorney is undisputed. Accordingly, we are dealing with the trial

court’s application of the law to the facts and will review the trial court’s decision de

novo. See id. at 147. Further, we note that the ultimate issue will be controlled by our

construction of article 18.01 of the Texas Code of Criminal Procedure. See art. 18.01

(West Supp. 2014). Statutory construction is a question of law. State v. Vasilas, 187

S.W.3d 486, 488 (Tex. Crim. App. 2006).


      The non-consensual extraction of blood from a person implicates the privacy

rights of the individual and is, therefore, protected by the Fourth Amendment to the

United States Constitution. See Schmerber v. California, 384 U.S. 757, 768-69, 86 S.

Ct. 1826, 16 L. Ed. 2d 908 (1966). Such protection is also recognized in the Texas

Constitution. TEX. CONST. art. I, § 9; see also Escamilla v. State, 556 S.W.2d 796, 798

(Tex. Crim. App. 1977).


      The issuance of a search warrant is governed by Chapter 18 of the Texas Code

of Criminal Procedure. The issuance of an evidentiary search warrant is governed by

art. 18.02(10). See art. 18.02(10) (West Supp. 2014); see also Clay v. State, 391

S.W.3d 94, 97 (Tex. Crim. App. 2013) (holding that an evidentiary search warrant may

issue for the extraction of blood). Article 18.01 contains several provisions governing

who may issue search warrants. See art. 18.01.




                                           14
       At issue before the Court are the provisions of article 18.01(i) and (j). The State

contends that the facts of this case are controlled by subsection (i), while appellant

states that the issue will be decided by application of subsection (j). Thus, we are

required to construe the statute.


       Article 18.01(i) provides:


       (i)    In a county that does not have a judge of a municipal court of
              record who is an attorney licensed by the state, a county court
              judge who is an attorney licensed by the state, or a statutory county
              court judge, any magistrate may issue a search warrant under
              Subdivision (10) or Subdivision (12) of Article 18.02 of this code.
              This subsection is not applicable to a subsequent warrant under
              Subdivision (10) of Article 18.02 of this code.

       Article 18.01(j) provides:


       (j)    Any magistrate who is an attorney licensed by this state may issue
              a search warrant under Article 18.02(10) to collect a blood
              specimen from a person who:
              (1) is arrested for an offense under Section 49.04 . . . Penal Code;
                  and

              (2) refuses to submit to a breath or blood alcohol test.


Parties’ Contentions


       The State contends that a justice of the peace is a magistrate as defined by

statute. See art. 2.09 (West Supp. 2014). However, a justice of the peace is not one of

the magistrates permitted to sign an evidentiary search warrant, see art. 18.02(10),

pursuant to article 18.01(c).       See art. 18.01(c).   Further, Bailey County has no

magistrates listed in article 18.01(c) who are licensed attorneys, other than the district

judge. Therefore, according to the State’s theory, the exception delineated in article


                                             15
18.01(i) is applicable. The State contends that the plain language of the statute leads to

this conclusion.


       Appellant, however, contends that the plain language of the entirety of article

18.01 leads to a different conclusion. Appellant points out that the plain language of

article 18.01(j) permits “[a]ny magistrate who is an attorney licensed by this state” to

issue a search warrant to seize blood; however, the requirement to be a licensed

attorney would exclude Justice of the Peace Redwine. Therefore, appellant contends

the warrant at issue was not proper.


Analysis


       The different contentions of appellant and the State require this Court to construe

the statute at issue. In so doing, we are required to give effect to the literal text unless

the meaning of the statute is ambiguous or the plain meaning leads to an absurd result

that the legislature could not have intended. See Chiarini v. State, 442 S.W.3d 318, 320

(Tex. Crim. App. 2014) (citing Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App.

1991)). Further, we must seek to effectuate the intent or purposes of the legislators

who enacted the legislation. See Vasilas, 187 S.W.3d at 488.


       To properly analyze the question before the Court, we must begin with the

basics. Article 2.09 provides a rather extensive list of whom, among the numerous

listed officials, are considered to be magistrates. See art. 2.09. Search warrants may

be signed by a magistrate.      See art. 18.01(a).    However, certain specific types of

warrants, like evidentiary warrants issued pursuant to article 18.02(10), may only be




                                            16
issued by certain specified magistrates. See art. 18.01(c). Yet, the same provision that

limits who may issue a search warrant also contains the exceptions at issue. See id.


       The plain language of article 18.01(i) tells us that, if a county does not have a

municipal judge who is a licensed attorney, a county judge who is a licensed attorney,

or a statutory county judge, then, in that situation, any magistrate may issue a search

warrant under article 18.02(10). See art. 18.01(i). This version of article 18.01(i) was

passed in 2007. See Act of May 15, 2007, 80th Leg., R.S., ch. 355, 2007 Tex. Gen.

Laws 652. Very clearly, there can be no misunderstanding about the direction of the

legislature in such a situation. The legislature was clearly trying to ease the burden on

rural counties by expanding the list of magistrates who could issue article 18.02(10)

search warrants. See Muniz v. State, 264 S.W.3d 392, 398 (Tex. App.—Houston [1st

Dist.] 2008, no pet.) (construing the prior version of article 18.01(i)). The plain language

is clear and unambiguous. See Chiarini, 442 S.W.3d at 320.


       Turning to the second provision at issue, article 18.01(j), we find that the statute

says that any magistrate who is a licensed attorney may issue an article 18.01(10)

search warrant to collect a specimen of blood when a citizen is accused of one of the

intoxication offenses listed and has refused to give a specimen of breath or blood. See

art. 18.01(j). This subsection of article 18.01 was passed in 2009. See Act of June 19,

2009, 81st Leg., R.S., ch. 1348, 2009 Tex. Gen. Laws 4262-65. When read alone, this

provision clearly states that any magistrate who happens to be a licensed attorney in

the State of Texas may sign a blood draw search warrant.




                                            17
       Appellant contends that subsection (j) acts as a limitation on subsection (i). The

thrust of appellant’s position is that, after granting the rural counties the opportunity to

utilize their magistrates when they did not have any who qualified to sign a search

warrant issued under article 18.02(10), the legislature subsequently withdrew that

authority by passing subsection (j). Under appellant’s theory, the only magistrate who

may sign a search warrant for seizure of blood is a magistrate who has a law license.


       To come to this conclusion, appellant must, by necessity, substitute the word

“only” for the word “any.” Any is the first word of this provision and, as used, is an

adjective used to indicate a person or thing that is not particular or specific.       See

WEBSTER’S THIRD NEW INT’L DICTIONARY 97 (3rd ed. 1976). On the other hand, only is an

adjective meaning alone in a class or category; existing with no other or others of the

same kind.    See id. at 1577.     Thus, under appellant’s theory, we have gone from

expanding the number of magistrates available to restricting the number of magistrates

available.   Appellant contends that this is what the legislature had in mind when it

passed subsection (j) in 2009. This is so, according to appellant, because a blood draw

is such an invasive matter, as recognized by the United States Supreme Court decision

in Schmerber. See Schmerber, 384 U.S. at 768-69. However, the only requirement of

Schmerber is that the prerequisites of the Fourth Amendment to the Constitution be met

prior to the collection of any blood specimen. See id. at 771.


       As opposed to appellant’s contentions, our reading of subsection (j) leads us to

conclude that it is clear and not ambiguous. See Chiarini, 442 S.W.3d at 320. Very

clearly, the statute says that any magistrate who is a licensed attorney can sign a

warrant to draw a blood specimen.         Further, the two provisions at issue can be

                                            18
reconciled to effectuate the purpose for which they were enacted. See Vasilas, 187

S.W.3d at 488.


       Simply put, subsection (c) of article 18.01 limits the magistrates who may sign

search warrants. It is also clear that the passage of subsection (i) of article 18.01 was

intended to expand the number of magistrates who could sign warrants in rural areas

where there were none of the magistrates listed in subsection (c) to be found. See

Muniz, 264 S.W.3d at 398. By passing the exception in subsection (j), it is this Court’s

view that the legislature was intending to expand, not contract, the number of

magistrates available to sign search warrants for blood.           Very consciously, the

legislature used the term “any” in crafting this statute. Thus, it is apparent that the

legislature wanted more magistrates available to review search warrants for blood, not

less. This interpretation of the two provisions effectuates and harmonizes the statute so

that all portions of the statute may be given effect.     See TEX. GOV’T CODE ANN. §

311.021 (West 2013); Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011)

(holding that to determine the collective intent of the legislature in passing legislation,

we look first to the literal text).


       Finally, despite the position of appellant, we do not find that such an

interpretation of the statute creates an absurd result. Instead, it would be appellant’s

position that would create an absurd result.     Under the interpretation suggested by

appellant, the legislature would have to be presumed to have intended to undo the

exception granted by subsection (i) to the prohibitions of subsection (c) when it passed

subsection (j). Such a result is an absurd result for it violates the very basic principal



                                            19
that we assume the legislature intended the entire statute to be effective. See TEX.

GOV’T CODE ANN. § 311.021; Clinton, 354 S.W.3d at 800.


       We therefore conclude that Redwine, acting in her capacity as a magistrate

pursuant to the exception of subsection (i), properly signed and issued the search

warrant for a specimen of appellant’s blood. This means that the trial court did not

commit error when it overruled appellant’s motion to suppress. Accordingly, appellant’s

issue to the contrary is overruled.


                                       Conclusion


       Having overruled appellant’s issues, the trial court’s judgment is affirmed.




                                                 Mackey K. Hancock
                                                     Justice




Publish




                                            20
