      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00660-CR



                                  Raegan D. Ashcraft, Appellant

                                                  v.

                                   The State of Texas, Appellee


                FROM THE COUNTY COURT AT LAW OF BURNET COUNTY
                NO. M27281, HONORABLE W. R. SAVAGE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Following the denial of her motion to suppress evidence, appellant Raegan D.

Ashcraft pleaded no contest to the misdemeanor offense of driving while intoxicated. See Tex. Penal

Code § 49.04. Punishment was assessed at 90 days in jail and a $2,000 fine, but the trial court

suspended imposition of the sentence and placed Ashcraft on probation for fourteen months

and probated the fine in the amount of $1,250. In three issues on appeal, Ashcraft asserts that the

trial court abused its discretion in denying her motion to suppress on the following grounds: (1) the

search-warrant affidavit used to obtain a specimen of Ashcraft’s blood did not set out sufficient facts

to establish that she was operating a motor vehicle in a public place; (2) the affidavit did not set

out sufficient facts to establish the time at which Ashcraft was found operating a motor vehicle; and

(3) the affidavit was not properly “sworn” as required by law. We will affirm the judgment.
                                         BACKGROUND

               At the suppression hearing, the trial court heard evidence that on the night of May 14,

2011, Trooper Nathan McWherter of the Texas Department of Public Safety was on patrol when he

observed a vehicle speeding in Burnet County near Highway 281. After stopping the vehicle and

conversing with the driver, later identified as Ashcraft, McWherter became suspicious that Ashcraft

was intoxicated. After observing Ashcraft’s performance on field sobriety tests, McWherter arrested

Ashcraft for driving while intoxicated and transported her to the Llano Memorial Hospital for

a blood draw. Because Ashcraft refused consent to have her blood drawn, McWherter was required

to submit an affidavit for a search warrant in order to obtain a specimen of Ashcraft’s blood. The

affidavit, which we discuss in more detail below as it is relevant to Ashcraft’s issues on appeal, was

signed by McWherter in the presence of Officer Holly Kline of the Llano Police Department. Based

on the contents of the affidavit, a warrant was issued and Ashcraft’s blood was drawn.

               The issues at the suppression hearing relevant to this appeal were the sufficiency of

the facts contained within the affidavit to establish probable cause for the blood draw and whether

the affidavit complied with the statutory requirement that the affidavit be “sworn.” See Tex. Code

Crim. Proc. art. 18.01(b), (c). After considering the evidence presented, specifically the testimony

of McWherter, the search-warrant affidavit, and the search warrant itself, and hearing argument

from the parties, the trial court denied the motion to suppress. The trial court subsequently made the

following findings of fact and conclusions of law:


       FINDINGS OF FACT

       ....


                                                  2
       1.     The traffic stop occurred [at] approximately 11:05 p.m. and the search
              warrant was issued by Judge Dan Mills, 424th District Court, at 12:28 a.m.,
              May 15, 2011.

       2.     Pursuant to said warrant, a blood specimen was drawn at 12:49 a.m., May 15,
              2011, and subsequently relinquished to the arresting officer.

       3.     The arresting officer signed and executed the Affidavit for Search Warrant
              in the physical presence of a peace officer, Holly Kline, Llano Police
              Department, a person qualified to administer oaths and execute jurats. The
              jurat was duly executed by said peace officer and the completed affidavit was
              forwarded to Judge Mills by fax.

       CONCLUSIONS OF LAW

       1.     The search warrant signed by Judge Mills was amply supported by the
              affidavit supplied by the affiant /arresting officer. The information contained
              in the affidavit and reasonable inferences made therefrom set forth substantial
              facts establishing probable cause that evidence of intoxication would be
              obtained by obtaining a specimen of Defendant’s blood.

       2.     The blood specimen seized pursuant to the warrant was properly admitted
              against Defendant. The arrest of Defendant and the transportation of
              Defendant to an adjacent county for purposes of execution of a valid blood
              search warrant did not constitute a violation of Defendant’s rights under the
              4th Amendment, U.S. Constitution nor under Article 1, Section 10, Texas
              Constitution.

       3.     The requirement that the search warrant affidavit be sworn to before a person
              authorized to administer oaths was met in this case. While there is some
              evidence that the officer administering the oath did not actually verbalize the
              recitation of an oath, the affiant signed the affidavit in the presence of the
              subscribing officer and with full understanding of its implications. This is
              sufficient to comply with the requirements of Article 18.01.


              After her motion to suppress was denied, Ashcraft pleaded no contest to driving while

intoxicated and was placed on probation as noted above. This appeal followed.




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                                    STANDARD OF REVIEW

                “In review of a trial court’s ruling on a motion to suppress, an appellate court must

apply a standard of abuse of discretion and overturn the trial court’s ruling only if it is outside the

zone of reasonable disagreement.” Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011)

(citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). We are to apply a bifurcated

standard of review, giving almost total deference to a trial court’s determination of historic facts and

mixed questions of law and fact that rely upon the credibility of a witness, but applying a de novo

standard of review to pure questions of law and mixed questions that do not depend on credibility

determinations. Id. (citing Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997)). When

reviewing a trial court’s ruling on a motion to suppress, we view the evidence in the light most

favorable to the ruling. State v. Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011) (citing State

v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)). If the trial court makes findings of fact,

as it did here, we determine whether the evidence supports those findings. Id. We then review

the trial court’s legal rulings de novo unless the findings are dispositive. Id. “We will sustain

the trial court’s ruling if that ruling is ‘reasonably supported by the record and is correct on

any theory of law applicable to the case.’” Valtierra v. State, 310 S.W.3d 442, 448 (Tex. Crim.

App. 2010) (quoting Dixon, 206 S.W.3d at 590).


                                             ANALYSIS

Sufficiency of facts contained within the affidavit

                In her first issue, Ashcraft asserts that the search-warrant affidavit does not set out

sufficient facts to establish that she was operating a motor vehicle in a public place. In her second


                                                   4
issue, Ashcraft similarly asserts that the affidavit did not set out sufficient facts to establish the time

at which she was operating a motor vehicle.

                “No search warrant shall issue for any purpose in this state unless sufficient facts are

first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance.”

Tex. Code Crim. Proc. art. 18.01(b). “A sworn affidavit setting forth substantial facts establishing

probable cause shall be filed in every instance in which a search warrant is requested.” Id. The

sworn affidavit must set forth “sufficient facts to establish probable cause: (1) that a specific offense

has been committed, (2) that the specifically described property or items that are to be searched for

or seized constitute evidence of that offense or evidence that a particular person committed that

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

located at or on the particular person, place, or thing to be searched.” Id. art. 18.01(c).

                In this case, the affidavit must contain sufficient facts to establish probable cause

that Ashcraft had committed the offense of driving while intoxicated and that evidence of

Ashcraft’s intoxication would be found in her blood. See Farhat v. State, 337 S.W.3d 302, 307

(Tex. App.—Fort Worth 2011, pet. ref’d). Therefore, two of the facts essential to the determination

of probable cause here were: (1) whether Ashcraft was operating a motor vehicle in a public place,

see Tex. Penal Code § 49.04(a); and (2) the approximate time at which Ashcraft was operating a

motor vehicle while allegedly intoxicated, so that the magistrate could determine the likelihood

that evidence of intoxication would still be present in Ashcraft’s blood at the time her blood was

to be drawn. See Crider v. State, 352 S.W.3d 704, 709-12 (Tex. Crim. App. 2011); State v. Jordan,

342 S.W.3d 565, 571-72 (Tex. Crim. App. 2011).



                                                    5
               Probable cause exists if, under the totality of the circumstances set forth in the

affidavit before the magistrate, there is a “fair probability” that contraband or evidence of a crime

will be found in a particular place at the time the warrant is issued. See Illinois v. Gates, 462 U.S.

213, 238 (1983); Jordan, 342 S.W.3d at 568-69. “It is a ‘flexible and nondemanding’ standard.”

Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) (quoting George E. Dix & Robert O.

Dawson, 40 Texas Practice—Criminal Practice and Procedure § 5.03 at 292 (2d ed. 2001)). “The

magistrate may interpret the affidavit in a non-technical, common-sense manner and may draw

reasonable inferences from the facts and circumstances contained within its four corners.” Jordan,

342 S.W.3d at 369.

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

are to apply “a highly deferential standard in keeping with the constitutional preference for

a warrant.” Rodriguez, 232 S.W.3d at 61; see Swearingen v. State, 143 S.W.3d 808, 810-11

(Tex. Crim. App. 2004) (explaining that de novo review of probable-cause determination, although

appropriate in other contexts, is inappropriate in review of magistrate’s decision to issue warrant);

see also Gates, 462 U.S. at 236 (“We have repeatedly said that after-the-fact scrutiny by courts

of the sufficiency of an affidavit should not take the form of a de novo review. A magistrate’s

‘determination of probable cause should be paid great deference by reviewing courts.’”). “Thus,

when an appellate court reviews an issuing magistrate’s determination, that court should interpret

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

reasonable inferences.” Rodriguez, 232 S.W.3d at 61. “When in doubt, we defer to all reasonable

inferences that the magistrate could have made.” Id. “As long as the magistrate had a substantial



                                                  6
basis for concluding that probable cause existed, we will uphold the magistrate’s probable cause

determination.” State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011).

                We first address Ashcraft’s claim that the affidavit did not set out sufficient facts to

establish that she was operating a motor vehicle in a public place. A “public place” is defined as

“any place to which the public or a substantial group of the public has access and includes . . . streets,

highways.” Tex. Penal Code § 1.07(40). Here, Trooper McWherter never specified in the affidavit

the location where he had observed Ashcraft operating a motor vehicle.1 However, McWherter

did state in the affidavit that he observed Ashcraft “speeding” at the rate of “74 miles per hour

in a 65 miles per hour zone.” From these facts, the magistrate could have reasonably inferred that

Ashcraft had been operating a motor vehicle on a street or highway where speed limits are regulated,

even to the extent of having speed-limit “zones,” and that this would, in turn, be a “public place.”

Accordingly, we cannot conclude that the trial court abused its discretion in denying the motion to

suppress on the ground that the magistrate had a substantial basis for concluding that Ashcraft was

operating a motor vehicle in a public place. We overrule Ashcraft’s first issue.

                We next address Ashcraft’s assertion that the affidavit did not set out specific facts

to establish the time at which she was operating a motor vehicle. “[A]n affidavit ‘is inadequate

if it fails to disclose facts which would enable the magistrate to ascertain from the affidavit that

event upon which the probable cause was founded was not so remote as to render it ineffective.’”

Crider, 352 S.W.3d at 707 (quoting Garza v. State, 48 S.W.2d 625, 627-28 (Tex. Crim. App. 1932)

(op. on reh’g)). In other words, “there must be sufficient facts within the affidavit to support a


        1
        Although McWherter testified at the suppression hearing that Ashcraft was stopped near
Highway 281, this information was not included in the affidavit.

                                                    7
probable-cause finding that the evidence is still available and in the same location.” Id. In a driving-

while-intoxicated case, the evidence sought is alcohol or some other intoxicant, and the location

of that evidence is in the individual’s bloodstream. See id. Therefore, “[t]he magistrate need[s] to

know when the [appellant] was stopped in order to determine the probability that evidence

of an offense would be found in the [appellant’s] blood at the time the warrant issued.” Jordan,

342 S.W.3d at 570.

                “No hard-and-fast rule sets the outer limit of time between stopping an apparently

intoxicated driver and the existence of probable cause that evidence of intoxication will still be found

within that person’s blood.”2 Crider, 352 S.W.3d at 707-08. However, “[a]lcohol in a person’s

bloodstream disappears quite rapidly, thus the facts cited to support probable cause to search

for alcohol in a DWI suspect’s bloodstream become stale quite rapidly.” Id. at 708. Consequently,

“[t]he longer the time gap between the initial stop and the eventual signing of the warrant, the less

likely that evidence of intoxication would still be found in appellant’s blood.” Id. at 710. In order

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

probable cause existed to draw the suspect’s blood, the affidavit must contain some information

that “suggests what time gap existed between the last moment of driving and the moment the

magistrate signed the warrant.” See id. However, in our review, we must consider the totality of the

circumstances described in the affidavit and give “due regard to all reasonable inferences that can


       2
         The court of criminal appeals has concluded that it is unreasonable to expect that alcohol
may still be found in a person’s blood over 24 hours after a traffic stop, see Crider v. State,
352 S.W.3d 704, 710 (Tex. Crim. App. 2011), but that, depending on the severity of the symptoms
of intoxication, it is not unreasonable to expect that alcohol may still be found in a person’s
blood within four hours after a traffic stop. See State v. Jordan, 342 S.W.3d 565, 571-72 (Tex. Crim.
App. 2011).

                                                   8
be drawn from the stated facts” within the four corners of the affidavit. Id. at 711. For example, in

State v. Jordan, the arresting officer did not specify the time at which he had observed the defendant

operating a motor vehicle. However, he did indicate on the affidavit that the offense had occurred

on June 6, 2008, which was the same date on which the affidavit was sworn. 342 S.W.3d at 567-

68. Also on that date, the magistrate issued a search warrant for blood at 3:54 a.m. Id. Thus,

considering the totality of the circumstances and drawing all reasonable inferences from the stated

facts within the affidavit, the reviewing court could determine that the defendant was stopped at

sometime after midnight on June 6, 2008, which was less than four hours prior to the warrant being

issued. Id. at 571. “Given the symptoms of intoxication described in the affidavit,” the court of

criminal appeals held “that the magistrate had a substantial basis to determine that evidence

of intoxication would probably be found in the appellee’s blood within four hours of the stop.”

Id. at 572.

               This case is similar to Jordan. Here, the affidavit does not indicate at what time

Trooper McWherter observed Ashcraft operating a motor vehicle. However, the affidavit does

specify that McWherter “made contact” with Ashcraft on May 14, 2011, “at approximately

11:05 p.m.” The affidavit was sworn on May 15, 2011, which indicates that it was sworn at some

time after midnight. The warrant itself was issued by the magistrate at 12:28 a.m. on May 15, 2011.

Thus, less than two hours had elapsed between the time McWherter “made contact” with Ashcraft

and the time a warrant was issued to draw Ashcraft’s blood.3 Given the symptoms of intoxication


        3
        As Ashcraft observes in her brief, McWherter acknowledged at the suppression hearing that
11:05 p.m. was actually the time he had placed Ashcraft under arrest and that the traffic stop had
occurred at some time prior to that. However, on cross-examination, McWherter agreed with the
prosecutor that, even assuming there was some delay between the initial traffic stop and the arrest,

                                                  9
described in the affidavit, which included a “strong” odor of alcohol on Ashcraft’s breath, bloodshot

eyes, swaying, and the exhibition of several indicators of intoxication during her attempts to perform

field sobriety tests, we cannot conclude that the trial court abused its discretion in denying the

motion to suppress on the ground that the magistrate had a substantial basis to determine that

evidence of intoxication would likely be found in the Ashcraft’s blood within two hours of the stop.

See id. at 572. We overrule Ashcraft’s second issue.


Requirement that affidavit be “sworn”

               In her third issue, Ashcraft asserts that the affidavit was not “sworn” as required

by statute. See Tex. Code Crim. Proc. art. 18.01(b). Specifically, Ashcraft contends that the peace

officer who signed the affidavit, Holly Kline, did not place McWherter under oath and did not have

him swear to the truth of the matters contained in the affidavit. Ashcraft further contends that Kline

was not qualified to administer oaths.

               We first address the latter contention. An oath may be made by a peace officer if

the oath is administered when the officer is engaged in the performance of the officer’s duties and

the administration of the oath relates to the officer’s duties. Tex. Gov’t Code § 602.002(17). Here,

McWherter testified that he “called the Llano County dispatch and asked them to send a police

officer over to the hospital for the purpose of signing an affidavit.” Kline arrived at the hospital in

response to that request. When asked if he knew whether Kline had as part of her official duties the

duty to administer oaths, McWherter testified, “I am under the impression that we all can do that.


the time between the initial traffic stop and the warrant being issued was approximately two hours.
And, in response to questioning from the trial court, McWherter also testified that the delay between
the initial traffic stop and the subsequent arrest was approximately fifteen minutes.

                                                  10
When we go to the jail there’s never a notary at the jail in Burnet County. We sign each other’s

[probable cause] affidavits all the time. I believe that’s a common, lawful thing to do.” McWherter

further testified that, at the time Kline arrived at the hospital, Kline was in uniform, on duty, and

on routine patrol. Additionally, on the affidavit itself, Kline indicated that she was a peace officer.

Considering the above evidence in its totality, we conclude that the trial court’s finding that Kline

was qualified to administer oaths is “reasonably supported by the record” and is not “outside the

zone of reasonable disagreement.” We cannot conclude that the trial court abused its discretion in

denying the motion to suppress on this ground.

               We next address Ashcraft’s contention that the affidavit was not “sworn.” It is well

established that article 18.01(b) requires a “sworn affidavit.” See Clay v. State, 391 S.W.3d 94,

98 (Tex. Crim. App. 2013); Smith v. State, 207 S.W.3d 787, 789-90 (Tex. Crim. App. 2006); Greer

v. State, 437 S.W.2d 558, 562 (Tex. Crim. App. 1969); Vaughn v. State, 177 S.W.2d 59, 61-62

(Tex. Crim. App. 1944) (op. on reh’g). To qualify as a sworn affidavit, the declaration of facts

contained within the affidavit must be confirmed by oath. See Vaughn, 177 S.W.2d at 61. “The

purpose of this oath is to call upon the affiant’s sense of moral duty to tell the truth and to instill

in him a sense of seriousness and responsibility.” Smith, 207 S.W.3d at 790. In the context of

a search-warrant affidavit, “an oath is both constitutionally and statutorily indispensable.” Clay,

391 S.W.3d at 97.

               At the suppression hearing, the following testimony was elicited from McWherter as

to whether Officer Kline had formally placed him under oath at the time he signed the affidavit:


       Q       When [Kline] arrived at the hospital describe as best you can remember
               exactly what was done.

                                                  11
        A       When she arrived at the hospital?

        Q       Yes.

        A       I let her look at the affidavit. I let her witness me signing it and then I dated
                it and she signed that she witnessed my signature.

        Q       Was there any conversation at all between the two of you?

        A       I don’t recall. I would assume there probably was.

        Q       You don’t recall any statements or questions by her to you about the
                signature?

        A       No, sir, I don’t remember.

        Q       And as far as you know all she was doing was witnessing that you had signed
                that; is that correct?

        A       Yes, sir.

        Q       She did not at any time place you under oath; did she? In other words, ask
                you to raise your right hand and swear to tell the truth, the whole truth and
                nothing but the truth so help you God; did she?

        A       No, she did not.

        Q       And she did not ask you if you were swearing to the truth of each and every
                item or statement in that affidavit; did she?

        A       She did not ask that, no.


                Thus, it appears from the record that, consistent with the trial court’s findings, “the

officer administering the oath did not actually verbalize the recitation of an oath.” However, as the

trial court observed, that does not end the inquiry. If there is other evidence in the record that proves

that the affiant personally swore to the truth of the facts in the affidavit before the issuing magistrate

or other officer qualified to administer oaths, then the affidavit is valid. See Smith, 207 S.W.3d


                                                   12
at 792. “Our Code of Criminal Procedure prescribes no form of oath necessary to be administered

to a witness, or one attesting, under oath, any fact in a criminal proceeding.” Vaughn v. State,

177 S.W.2d 59, 60 (Tex. Crim. App. 1943). Instead, the test to determine if an oath has been made

is whether the declarant’s statement would subject the person to a charge of perjury. See id.; see also

Smith, 207 S.W.3d at 790 n.13 (“An oath is a matter of substance, not form” and “creat[es] liability

for perjury or false swearing for those who abuse the warrant process by giving false and fraudulent

information.”) (quoting State v. Tye, 248 Wis. 2d 530, 636 N.W.2d 473, 478 (Wis. 2001)).

                Here, the affidavit begins with the following statement: “The undersigned Affiant,

being a Peace Officer under the laws of Texas and being duly sworn, on oath makes the following

statements and accusations.” The affidavit further provides, “Affiant is sending a true and correct

copy of this Affidavit for Search Warrant via facsimile/email to: Judge Mills,” below which appears

McWherter’s signature. The affidavit concludes with the following statement: “SWORN TO AND

SUBSCRIBED before me on the 15th day of May 2011,” below which appears Officer Kline’s

signature. Although this would be a simpler case if McWherter had verbally recited the oath to

Officer Kline, we nonetheless conclude that these statements and the accompanying signatures, when

considered in their totality, support the trial court’s finding that the affidavit, if later proven to

be false, would subject McWherter to a charge of perjury. See Tex. Penal Code § 37.07(b); Hardy

v. State, 213 S.W.3d 916, 917 (Tex. Crim. App. 2007); see also Vaughn, 177 S.W.2d at 60 (“In

perjury cases, the rule is that there is a valid oath sufficient to form the basis of a charge of perjury

when there is some form of an unequivocal and present act, in the presence of the officer authorized

to administer the oath, whereby the affiant consciously takes on himself the obligation of an oath.”).

Accordingly, the trial court’s conclusion that the affidavit in this case was “sworn” is “reasonably

                                                   13
supported by the record” and is not “outside the zone of reasonable disagreement.” We cannot

conclude that the trial court abused its discretion in denying the motion to suppress on this ground.

We overrule Ashcraft’s third issue.


                                         CONCLUSION

               We affirm the judgment of the trial court.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: August 20, 2013

Do Not Publish




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