                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00387-CR


JOHN DAN HOGAN                                                       APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                    ------------

      FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY

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                                   OPINION
                                    ------------

      In three related issues, appellant John Dan Hogan appeals his conviction

for driving while intoxicated (DWI).1 He contends that the trial court erred by

denying his motion to suppress evidence that the police obtained after arresting

him. We affirm.




      1
       See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003) (―A person commits
an offense if the person is intoxicated while operating a motor vehicle in a public
place.‖).
                               Background Facts

      On an early fall morning in 2008, Fort Worth Police Department Officer

C.D. Harris was on patrol when he heard another officer, who was on a bike, say

on the radio that a car was driving dangerously and going the wrong way on a

one-way street. Officer Harris found a car that matched the description that he

had been given; the car had just been stopped because of another patrol officer’s

command. As appellant stepped out of the car, Officer Harris placed handcuffs

on him.2 Officer Harris noticed that appellant smelled like alcohol, had bloodshot

and watery eyes, had slurred speech, and was swaying and unsteady. Appellant

failed three field sobriety tests; he showed six clues of intoxication on the

horizontal-gaze-nystagmus test, six clues on the walk-and-turn test, and three

clues on the one-leg-stand test.3

      Officer Harris placed appellant in the patrol car and took him to jail.

Officer Harris then read the statutory warning to appellant about providing a

breath specimen, and appellant refused to give one. After giving appellant the

walk-and-turn and one-leg-stand tests again in an intoxilyzer room, Officer Harris

placed appellant in a holding cell while he typed a search warrant affidavit to

draw appellant’s blood because appellant had refused the breath test.


      2
       Officer Harris said that he placed handcuffs on appellant because
appellant had evaded arrest.
      3
       Officer Harris opined during the motion to suppress hearing that appellant
was ―highly intoxicated.‖

                                        2
A municipal magistrate read the affidavit and signed the warrant, and Officer

Harris took appellant to a hospital, where a medical professional took appellant’s

blood sample.4

      The State charged appellant with DWI.           Appellant filed a motion to

suppress evidence related to his blood draw and statements that he made to the

police after his arrest. After an evidentiary hearing, the trial court granted the

suppression of appellant’s statements but denied appellant’s motion relating to

the blood draw. About a month later, under a plea agreement, appellant pled

nolo contendere. The trial court sentenced him to 365 days’ confinement, but it

suspended the sentence and placed him on two years’ community supervision.

Appellant preserved his right to bring this appeal.

                 The Denial of Appellant’s Motion to Suppress

      In three related issues, appellant argues that (1) the search warrant issued

to obtain his blood specimen was not supported by probable cause and therefore

violated the United States and Texas constitutions, and (2) the affidavit

supporting the warrant did not comply with article 18.01 of the code of criminal

procedure because it did not contain sufficient facts showing probable cause that

an offense had been committed.5


      4
       The parties did not present evidence during the suppression hearing
about the result of appellant’s blood test.
      5
        Appellant states that his issues, which all concern probable cause, rely on
―identical facts.‖ Although appellant contends that the Texas constitution
provides greater protection regarding search warrants than the United States
                                         3
Standard of review and applicable law

      The police may obtain a defendant’s blood for a DWI investigation through

a search warrant. Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002);

see Tex. Code Crim. Proc. Ann. art. 18.01(j) (Vernon Supp. 2010); State v.

Johnston, 305 S.W.3d 746, 750 (Tex. App.—Fort Worth 2009, pet. granted).

A search warrant cannot issue unless it is based on probable cause as

determined from the four corners of an affidavit. U.S. Const. amend. IV; Tex.

Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 18.01(b) (―A sworn affidavit . . .

establishing probable cause shall be filed in every instance in which a search

warrant is requested.‖); Nichols v. State, 877 S.W.2d 494, 497 (Tex. App.—Fort

Worth 1994, pet. ref’d).    When reviewing a magistrate’s decision to issue a

warrant, we apply a highly deferential standard in keeping with the constitutional

preference for a warrant. Rodriguez v. State, 232 S.W.3d 55, 59–60 (Tex. Crim.

App. 2007) (―[E]ven in close cases we give great deference to a magistrate’s

determination of probable cause to encourage police officers to use the warrant

process rather than making a warrantless search and later attempting to justify

their actions by invoking some exception to the warrant requirement.‖);

Swearingen v. State, 143 S.W.3d 808, 810–11 (Tex. Crim. App. 2004);

Constitution, he does not particularly explain what that greater protection
comprises or how it affects the probable cause standard. Thus, we will examine
appellant’s issues together. See Arnold v. State, 873 S.W.2d 27, 33 & n.4 (Tex.
Crim. App. 1993), cert. denied, 513 U.S. 830 (1994); Garcia v. State, 239 S.W.3d
862, 868 n.3 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d), cert. denied, 129
S. Ct. 505 (2008).

                                          4
Emenhiser v. State, 196 S.W.3d 915, 924–25 (Tex. App.—Fort Worth 2006, pet.

ref’d).

          Under the Fourth Amendment and the Texas constitution, an affidavit

supporting a search warrant is sufficient if, from the totality of the circumstances

reflected in the affidavit, the magistrate was provided with a substantial basis for

concluding that probable cause existed. Swearingen, 143 S.W.3d at 810–11;

Nichols, 877 S.W.2d at 497.       Probable cause exists to issue an evidentiary

search warrant if the affidavit shows facts and circumstances to warrant a person

of reasonable caution to believe that the criteria set forth in article 18.01(c) of the

code of criminal procedure have been met. Tolentino v. State, 638 S.W.2d 499,

501 (Tex. Crim. App. [Panel Op.] 1982); see Tex. Code Crim. Proc. Ann. art.

18.01(c). The affidavit must set forth facts establishing that (1) a specific offense

has been committed, (2) the item to be seized constitutes evidence of the offense

or evidence that a particular person committed the offense, and (3) the item is

located at or on the person, place, or thing to be searched. See Tex. Code Crim.

Proc. Ann. art. 18.01(c); Tolentino, 638 S.W.2d at 501.

          A reviewing court should not invalidate a warrant by interpreting the

affidavit in a hypertechnical manner.         See Rodriguez, 232 S.W.3d at 59;

Tolentino, 638 S.W.2d at 501 (explaining that ―[n]o magical formula exists‖ for an

affidavit’s explanation of probable cause); Nichols, 877 S.W.2d at 498. Rather,

when a court reviews an issuing magistrate’s determination, the court should

interpret the affidavit in a commonsense and realistic manner, recognizing that

                                          5
the magistrate may draw reasonable inferences. See Rodriguez, 232 S.W.3d at

61 (―When in doubt, we defer to all reasonable inferences that the magistrate

could have made.‖); Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006);

Nichols, 877 S.W.2d at 498. ―The issue is not whether there are other facts that

could have, or even should have, been included in the affidavit; we focus on the

combined logical force of facts that are in the affidavit, not those that are omitted

from the affidavit.‖ Rodriguez, 232 S.W.3d at 62; see Nichols, 877 S.W.2d at 498

(―A warrant is not invalid merely because the officer failed to state the obvious.‖).

The magistrate’s determination should prevail in doubtful or marginal cases.

Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010).

Analysis

      Officer Harris’s affidavit included the following facts:

              I am a peace officer of the State of Texas, . . . and I have good
      reason to believe that heretofore, . . . HOGAN, JOHN DAN . . . did
      . . . commit an offense relating to the operating of a motor vehicle
      while intoxicated namely:
            On October 26, 2008 I Officer CD Harris was assisting
      A633 (Officer EA Bentley #3480) who had called out with a
      wrong way driver. Officer Bentley stated that the IMP[6] was
      traveling westbound in the 200 block of W. 5th St which is for
      eastbound traffic only. . . . The IMP then turned westbound
      onto 300 W. 6th ST and ran two red lights . . . . The IMP was also
      driving recklessly as it swerved around other cars on the
      roadway. . . . The IMP then turned southbound onto Forest Park
      Blvd where Officer’s [sic] were able to finally catch up to the
      IMP and conduct a traffic stop. I was on scene . . . by this time

      6
     ―IMP‖ is not defined in Officer Harris’s affidavit. He testified that ―IMP‖
means an impounded vehicle.

                                          6
      and I was able to make contact with [appellant]. While speaking
      with him I could smell the strong odor of an alcoholic beverage
      on or about the person of [appellant] as well as observed that
      he had bloodshot, watery[,] and heavy eyes. [Appellant] had
      swayed and unsteady balance as well as swayed, unsteady[,]
      and staggered walk. At that time I believed he was possibly
      intoxicated by means of alcohol and requested that [appellant]
      perform a field sobriety evaluation which yielded the following
      results: HGN-6 clues with vertical nystagmus, WAT-6 clues,
      OLS-3 clues. At that time I placed [appellant] under arrest for
      driving while intoxicated and transported him to [jail] . . . where
      he refused to provide a breath specimen.

The affidavit concluded by requesting a warrant to seize appellant’s blood and

therefore gain evidence for a DWI charge.

      The warrant that the magistrate signed incorporated Officer Harris’s

affidavit and said that the facts contained within it were sufficient to establish

probable cause for medical personnel to draw a specimen of appellant’s blood.

The trial court’s conclusions of law state in part,

            Judge Kelms was a neutral, impartial magistrate when she
      issued the warrant.

             The search warrant was lawful and valid.

             ....

             [Appellant’s] blood sample was seized pursuant to a search
      warrant validly executed in accordance with Articles 18.01 and 18.02
      of the Code of Criminal Procedure . . . .

      Appellant contends that the affidavit did not establish probable cause to

issue the warrant for his blood specimen because it contained ―conclusory and

nonsensical statements.‖      Specifically, appellant asserts that the affidavit is

defective because it

                                           7
      describes the driving path of an ―IMP‖ but does not explain to the
      magistrate what ―IMP‖ means and does not explicitly state that appellant
      was driving the ―IMP‖ or was otherwise operating a motor vehicle;

      uses ―HGN,‖ WAT,‖ and ―OLS‖ without defining those acronyms or
      explaining the significance of the number of ―clues‖ as related to the
      acronyms, and therefore the affidavit does not show appellant’s
      intoxication; and

      does not state that Officer Harris is qualified to conduct field sobriety tests
      or that he has experience in DWI cases.

      While the affidavit could have been clearer, in according deference to the

magistrate’s determination, we cannot agree with appellant that it failed to

establish probable cause to show that he had committed DWI and that his blood

could provide evidence of that offense. Although the affidavit never specifically

stated that appellant was the person who was driving the ―IMP,‖ it explained that

Officer Harris had good reason to believe that appellant had operated a motor

vehicle, described how officers saw a car progress recklessly and illegally

through the streets of Fort Worth, explained that officers stopped the car that

they observed being driven recklessly and illegally, and then said that at the

scene of the stop, Officer Harris made contact with appellant. The affidavit does

not indicate that anyone other than appellant (and other police officers) was at

the scene (and therefore does not create doubt that someone else could have

driven the ―IMP‖). Thus, we conclude that the magistrate could have reasonably

inferred   that   appellant   drove   the       vehicle   described   in   the   affidavit.

See Rodriguez, 232 S.W.3d at 61.



                                            8
       Next, we acknowledge that the affidavit could have been more explicit

concerning appellant’s performance on the field sobriety tests because it did not

define the sobriety tests’ acronyms or explain the nature or significance of the

tests. But even if we assume that the magistrate did not understand Officer

Harris’s acronyms or know about the tests, the affidavit still informed the

magistrate in plain language that appellant showed fifteen combined clues of

intoxication on the tests. And apart from the sentence concerning the tests, the

affidavit stated that appellant recklessly drove a vehicle; that he had a ―strong

odor‖ of alcohol, ―bloodshot, watery[,] and heavy eyes,‖ a swayed and unsteady

balance, and a staggered walk; and that he had refused to provide a breath

specimen.     These facts alone were sufficient to show probable cause that

appellant committed DWI. See State v. May, 242 S.W.3d 61, 62 (Tex. App.—

San Antonio 2007, no pet.) (mem. op.); Learning v. State, 227 S.W.3d 245, 249

(Tex. App.—San Antonio 2007, no pet.) (mem. op.); Reynolds v. State, 902

S.W.2d 558, 560 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d); see also Tex.

Dep’t of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 880–81 (Tex. App.—Fort

Worth 2009, no pet.) (en banc op. on reh’g) (holding that there was substantial

evidence to show probable cause for DWI when the appellee was stopped for

speeding, had bloodshot eyes, swayed, smelled like alcohol, and refused to

participate in field sobriety tests).

       Finally, although the affidavit might have been more complete if it had

detailed Officer Harris’s experience in DWI cases, we hold that such information

                                        9
was not required to make the affidavit adequate. See Davis, 202 S.W.3d at 156

(explaining that an officer’s statement that he recognized the odor of

methamphetamine reasonably implied that he had experience with the odor

generated by the process of cooking methamphetamine).              Many of the facts

included in Officer Harris’s affidavit would lead an untrained, common person to

believe that appellant was driving the vehicle while he was intoxicated.

See Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310 (1949)

(―In dealing with probable cause . . . we deal with probabilities. These are not

technical; they are the factual and practical considerations of everyday life on

which reasonable and prudent men, not legal technicians, act.‖); Small v. State,

977 S.W.2d 771, 774 (Tex. App.—Fort Worth 1998, no pet.) (citing Brinegar and

explaining that probable cause is a ―common sense standard requiring only a

probability of criminal activity rather than an actual showing of such activity‖).

      Appellant cites a decision from the court of criminal appeals to conclude

that Officer Harris’s affidavit was invalid because it was conclusory. See Jones

v. State, 833 S.W.2d 118, 124 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 921

(1993). In Jones, an officer’s search warrant affidavit in a murder case attempted

to link the defendant to the murder by stating only that the defendant’s

fingerprints matched fingerprints taken from the scene. Id. The court of criminal

appeals held that the affidavit was insufficient because there ―were no facts that

would lead a neutral and detached magistrate to conclude that appellant was the

perpetrator of the crime and not merely an ordinary houseguest.‖ Id. In contrast,

                                          10
as explained above, Officer Harris’s affidavit provided sufficient facts to allow the

magistrate to reasonably infer that appellant committed a crime by operating a

motor vehicle in a public place while intoxicated.       Other cases relied on by

appellant are similarly distinguishable. See Cassias v. State, 719 S.W.2d 585,

590 (Tex. Crim. App. 1986) (op. on reh’g) (holding that an affidavit to search a

house for drugs was insufficient because it was ―too disjointed and imprecise to

warrant a man of reasonable caution in the belief that marihuana and cocaine

would be found‖ there); Taylor v. State, 54 S.W.3d 21, 27 (Tex. App.—Amarillo

2001, no pet.) (holding that there was no probable cause to search a defendant’s

home for child pornography based only on the facts that governmental authorities

received contraband by someone using an alias, obtained information that the

defendant used the alias at some time, and knew where the defendant lived).

      For these reasons, we hold that the facts contained within Officer Harris’s

affidavit, along with reasonable inferences from those facts, allowed the

magistrate to conclude that there was probable cause to sign the search warrant.

See Rodriguez, 232 S.W.3d at 61. The affidavit and warrant complied with the

United States and Texas constitutions and article 18.01 of the code of criminal

procedure; therefore, the trial court did not err by denying appellant’s motion to

suppress. See U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim.

Proc. Ann. art. 18.01. We overrule appellant’s three issues.




                                         11
                                  Conclusion

     Having overruled appellant’s issues, we affirm the trial court’s judgment.



                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

PUBLISH

DELIVERED: November 18, 2010




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