                              Fourth Court of Appeals
                                     San Antonio, Texas
                                            OPINION
                                        No. 04-14-00649-CR

                                      Alex Rene GONZALES,
                                             Appellant

                                               v.
                                          The STATE of
                                       The STATE of Texas,
                                             Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2013CR7573
                           Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Jason Pulliam, Justice

Delivered and Filed: November 10, 2015

AFFIRMED

           Appellant Alex Rene Gonzales was arrested for driving while intoxicated and his blood

was drawn and tested pursuant to a search warrant. In the affidavit supporting the search warrant,

the arresting officer repeated statements of a witness identified only as “W1.” On appeal, Gonzales

makes two complaints about the arresting officer’s affidavit in support of the search warrant. First,

Gonzales argues the four corners of the affidavit did not establish probable cause because the

witness to which the affidavit refers is not sufficiently described. Second, Gonzales contends the

arresting officer made a material misrepresentation in the affidavit because he failed to state in the
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affidavit that he had not in fact talked to the witness but had learned about the witness’s statements

from another investigating officer. We affirm the judgment of the trial court.

                                            BACKGROUND

        On June 28, 2013, Gonzales was arrested for driving while intoxicated, third offense. He

refused all sobriety tests and refused to submit to a breath test. Officer Rodney Magee, the arresting

officer, then signed an affidavit and obtained a search warrant to take a sample of Gonzales’s blood

for testing. The results indicated a blood-alcohol level of .12.

        Gonzales filed a motion to suppress the blood evidence, alleging an illegal seizure

unsupported by probable cause. At the suppression hearing, Officer Magee was the only witness

to testify. He testified that on June 28, 2013, he was on patrol when he responded to a call that

there was a car stopped at an intersection with a female and a male passed out inside. When Officer

Magee arrived at the scene, other officers were already present. Officer Magee saw that there was

a car stopped “right at the intersection.” “It was in the number two lane, fast lane, being the far left

. . . so right in the middle of the road.” Officer Magee saw another officer, Officer Gratavski,

speaking to a witness. Officer Magee testified he learned the witness had said Gonzales had been

passed out in the driver’s seat of the car while the car’s engine was running. According to the

witness, Gonzales had been slumped over into the lap of the female who, while sitting in the

passenger seat, had also been slumped over Gonzales. The witness knocked on the window of the

car, and when Gonzales and the female woke up, the witness took the keys out of the car’s ignition.

        Officer Magee testified that by the time he was at the scene, Gonzales and the female were

already out of the car. Officer Magee began talking with Gonzales who, according to Officer

Magee, was acting very “defensive.” Officer Magee asked Gonzales where he had been coming

from, and Gonzales replied, “I wasn’t driving.” Gonzales then told Officer Magee he had been

coming from a concert in Helotes. When Officer Magee asked Gonzales other questions, he again
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replied, “I wasn’t driving.” Officer Magee testified that Gonzales then became aggressive and had

to be secured with handcuffs. According to Officer Magee, in speaking with Gonzales, he could

smell a moderate odor of alcohol on Gonzales’s breath. Officer Magee also noticed that Gonzales

was unsteady on his feet and had confused speech. At times Gonzales had to rephrase, “kind of go

back and say again what he wanted to say with the correct words.” Further, Gonzales’s eyes were

“glassy.” Officer Magee believed that Gonzales showed signs of intoxication, so he asked

Gonzales if he had had anything to drink. Gonzales replied, “Very little, if anything at all.”

Gonzales refused standard field sobriety tests. He was then placed under arrest for driving while

intoxicated. As a basis for arresting Gonzales, Officer Magee testified that “[a]ll clues [had been]

observed.” Officer Magee noted that Gonzales was “unsteady on his feet,” smelled of alcohol, had

“glassy eyes,” had “confused” and “slurred speech,” and was “passed out at the intersection with

the motor running.” According to Officer Magee, in making the decision to arrest Gonzales, he

relied on “[j]ust all the totality of circumstances.”

        On cross-examination, Officer Magee admitted that he had never seen Gonzales driving

the car. Officer Magee also could not remember if he had ever spoken directly with the witness

who had taken Gonzales’s car keys out of the car’s ignition. Officer Magee testified that he

believed all the information with respect to this witness was communicated to him through Officer

Gratavski.

        At the conclusion of the suppression hearing, the trial court denied Gonzales’s motion to

suppress. At trial, Gonzales again urged his motion to suppress based on the affidavit being

insufficient. It was again denied.

        At trial, the witness who had taken the keys out of Gonzales’s car, Jesus Chavez, testified.

Chavez testified that on June 28, 2013, at about 11:00 p.m., he was heading to his gym and was

driving on Bandera Road when he “saw a lot of cars ahead of [him] going left and right to avoid a
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vehicle that was parked in the street.” Chavez almost hit the car himself and had to “slam” on his

brakes. Although the light at the intersection was green, the car did not move. According to

Chavez, except for taillights indicating that the brakes were on, the car did not have any lights on

at all. The light at the intersection then turned red. The light at the intersection then turned green

again, but there was still no response from the car. Chavez then honked his horn. There was still

no response. So, Chavez decided to check to see if the driver of the car was okay. Chavez put on

his flasher indicators and got out of his pickup truck. Chavez went to the driver’s side of the car

and noticed the windows of the car were down. Chavez saw Gonzales “slumped over like this with

his hands in his lap facing upwards like this.” Chavez saw a passenger, a woman, who was also

“passed out.” Chavez explained that he said “passed out because she was leaned over, completely

hunched over with her hair in the car.” Chavez knew Gonzales and the woman were passed out

because he could smell “the strong presence of alcohol.” According to Chavez, there was no one

else in the car.

        Chavez testified Gonzales was sitting in the driver’s seat. The car was on, in drive, and the

radio was “blaring.” Chavez checked Gonzales for a pulse. Chavez then called 911 and said

“[t]here’s an individual with a running vehicle in the street that could have easily took off.” Chavez

asked if the dispatcher wanted him to put the car in park. When the dispatcher replied yes, Chavez

put the car in park and removed the car keys from the ignition. The woman passenger then began

vomiting and woke up. She looked at Chavez and started punching Gonzales, yelling that someone

was trying to steal Gonzales’s car. Gonzales woke up and became “very physically aggressive.”

Gonzales wanted his keys back. Chavez replied that he was not getting his keys back. Gonzales

wanted to leave and demanded his keys. Chavez told Gonzales that he was drunk, he was not

getting his keys back, and the police had already been called. Chavez testified Gonzales tried to

charge him but then tripped and fell. According to Chavez, Gonzales “reeked of alcohol” and
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“could not walk in a straight line if [Chavez] drew one three-feet wide.” Chaves testified that after

Gonzales charged him, the woman passenger decided to try to take Chavez’s truck. “So she ran to

[his] truck, ran into it. Literally ran into [his] truck.” Chavez then ran back to his pickup truck, put

it in drive, and parked it around the corner, waiting for the police to arrive. Chavez saw Gonzales

and the woman passenger walking around their car. Then, Chavez saw the flashing lights of the

police. Chavez still had Gonzales’s car keys. Three patrol cars arrived on the scene. When a female

officer came towards Chavez, Chavez identified himself as the witness who had called 911 and

gave the officer the keys to the car. Chavez testified he told the officer what had happened. The

officer thanked him and told him to wait in his pickup truck.

       Officer Magee testified about the same facts as he did during the suppression hearing. He

also testified that generally, when investigating an incident, one officer has the reporting

responsibility. According to Officer Magee, he was that officer in this case. Officer Magee also

noted that at the scene, Gonzales had claimed “Frank was driving.” Gonzales claimed he had been

sitting in the backseat of the car while “Frank” drove. Officer Magee testified that he had looked

in the backseat of the car and saw “stuff piled up in the floorboard up above where the seat was,”

“kind of f[alling] into the seat.” According to Officer Magee, he did not believe anyone could have

been sitting back there. Officer Magee also testified that Gonzales said he had been “coming from

Floore’s County Store out of Helotes where they have concerts.” Gonzales said he had been at

Floore’s for four hours, but did not have a single drink while there. Officer Magee testified that he

did not find Gonzales’s statements to be credible. As in the suppression hearing, Officer Magee

testified he believed Gonzales was intoxicated “based on all the observations [he] made. “[T]he

slurred speech, the glassy eyes, unsteady on his feet, the odor on his breath.” “Based on the totality

of circumstances, everything going on that night, just everything [he] observed, all the statements

made from everyone.”
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        Again on cross-examination, Officer Magee admitted that he never saw Gonzales behind

the wheel of the car and that he had never spoken to the witness directly. Officer Magee admitted

that everything he relied on with regard to the witness’s statements he learned through Officer

Gratavski.

        Officer Juan Hernandez also testified at trial. He testified that he was the first officer who

pulled up behind Gonzales’s car and that the other officers arrived seconds after him. According

to Officer Hernandez, the dispatch call was vague, reporting a man slumped over the steering

wheel of a car. When Officer Hernandez arrived at the scene, both Gonzales and a female were

outside of the car. Officer Hernandez testified that from what he observed, Gonzales appeared to

be intoxicated. Officer Hernandez noted the “smell on [Gonzales’s] breath, his stumbling, holding

onto the car when he was walking around it,” his slurred speech, and his aggressive manner.

According to Officer Hernandez, Gonzales was “cussing almost in every sentence that he was

saying.” Officer Hernandez remembered Gonzales claiming that he and the female passenger had

been riding in the backseat of the car. According to Officer Hernandez, he looked in the backseat

and determined that it was physically impossible to be riding in the backseat. All over the backseat

and floorboard were clothes and shoes. With regard to the witness, Officer Hernandez testified he

never spoke to him.

        Gonzales was found guilty of driving while intoxicated, third offense, and was sentenced

to five years imprisonment and a $2,000 fine. His sentence was then suspended and he was placed

on community supervision for a period of five years. He now appeals arguing that the affidavit in

support of the search warrant was constitutionally insufficient because its four corners do not

support probable cause and because Officer Magee made a material misrepresentation in the

affidavit.



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          FOUR CORNERS OF THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT

       Gonzales first argues the search warrant on its face was insufficient and thus violated the

Fourth Amendment to the Constitution because the witness was not named or described in the

search warrant. Under the Fourth Amendment, a search warrant cannot issue unless it is based on

probable cause as determined from the four corners of the affidavit. See U.S. CONST. amend IV;

Flores v. State, 319 S.W.3d 697, 702-03 (Tex. Crim. App. 2010). The four corners of an affidavit

supporting a search warrant are sufficient if, from the totality of circumstances reflected in the

affidavit, the magistrate was provided with a substantial basis for concluding that probable cause

existed. Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex. Crim. App. 2004). Probable cause for

a search warrant exists if, under the totality of circumstances presented to the magistrate in an

affidavit, there is at least a “fair probability” or “substantial chance” that evidence of a crime will

be found. Flores, 319 S.W.3d at 702. The affidavit must contain sufficient information to allow

the issuing magistrate to determine independently whether probable cause exists because the

magistrate’s decision “cannot be a mere ratification of the bare conclusions of others.” Illinois v.

Gates, 462 U.S. 213, 239 (1983).

       When reviewing a magistrate’s decision to issue a warrant, we apply a deferential standard

in keeping with the constitutional preference for a warrant. Rodriguez v. State, 232 S.W.3d 55, 60

(Tex. Crim. App. 2007); Swearingen, 143 S.W.3d at 810-11. Whether an affidavit provides a

substantial basis for a magistrate’s probable cause determination cannot be determined through a

“magical formula.” Tolentino v. State, 638 S.W.2d 499, 501 (Tex. Crim. App. [Panel Op.] 1982).

Instead, when we review an issuing magistrate’s determination of probable cause, we interpret the

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

reasonable inferences. Rodriguez, 232 S.W.3d at 61. In emphasizing that affidavits should be read

in a commonsense manner, the Supreme Court has pointed out that affidavits “are normally drafted
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by nonlawyers in the midst and haste of a criminal investigation.” United States v. Ventresca, 380

U.S. 102, 108 (1965). “Technical requirements of elaborate specificity once exacted under

common law pleadings have no proper place in this area.” Id. “A grudging or negative attitude by

reviewing courts toward warrants will tend to discourage police officers from submitting their

evidence to a judicial officer before acting.” Id. The Court explained that “[t]his is not to say that

probable cause can be made out by affidavits which are purely conclusory.” Id. at 109. “Recital of

some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his

detached function and not serve merely as a rubber stamp for the police.” Id. “However, where

these circumstances are detailed, where reason for crediting the source of the information is given,

and when a magistrate has found probable cause, the courts should not invalidate the warrant by

interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.” Id.

           Here, Officer Magee’s affidavit stated the name and description of the suspect and affirmed

that the suspect was presently in custody of the police and had “possession of and [was] concealing

human blood, which constitute[d] evidence that the suspect committed the offense” of driving

while intoxicated. The affidavit then listed the following facts as a basis for Officer Magee’s belief

that the suspect had committed the crime of driving while intoxicated:

           (1) On the date specified in paragraph 4 above, at approximately 0:57 a.m., the
               suspect was operating a motor vehicle in a public place in Bexar County, Texas,
               namely BANDERA RD/MAINLAND DR

                    i. W1 OBSERVED AP1’S 1 VEHICLE ON BANDERA AT
                       MAINLAND, W1 OBSERVED THE VEHICLE SITTING AT THE
                       INTERSECTION WHILE THE LIGHT WAS GREEN, W1 STATED
                       AP1’S VEHICLE DID NOT HAVE ANY LIGHTS ON AND WAS
                       ALMOST REAR-ENDED BY ANOTHER VEHICLE. W1 STATED
                       HE EXITED THE VEHICLE TO MAKE SEE [SIC] WHAT WAS
                       GOING ON AND OBSERVED AP1 SITTING IN THE DRIVER’S
                       SEAT SLUMPED OVER AND AP2 IN THE PASSENGER SEAT,
                       WITH THE VEHICLE RUNNING. W1 REACHED IN THE

1
    The first paragraph of the affidavit identifies Gonzales as “a suspected person (‘AP1/SUSPECT’)”.

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                   VEHICLE AND PUT THE CAR IN PARK AND TURNED THE
                   INGNITION OFF. AT THIS TIME AP2 WOKE UP, AND WOKE AP1
                   UP AND THEY EXITED THE VEHICLE SHORTLY AFTER WE
                   ARRIVED.

Then, in the following paragraph B, Officer Magee affirmed that he had made the following

observations of the suspect:

       (1) the suspect had a moderate odor of alcohol;

       (2) the suspect’s speech was slurred and confused;

       (3) the suspect’s attitude was combative, insulting, cocky, profane, and sleepy;

       (4) the suspect’s balance was staggering, swaying, and unsure;

       (5) the suspect’s walking was staggering, swaying, and unsure; and

       (6) the suspect’s turning was hesitant and unsure.


In paragraph D, Officer Magee’s affidavit stated “additional facts” that led him to believe the

suspect was intoxicated while operating a motor vehicle in a public place:

       I SMELLED A MODERATE ODOR OF INTOXICANTS ON AP1’S BREATH
       AS HE SPOKE. I OBSERVED AP1 TO BE UNSTEADY ON HIS FEET AND
       SWAYING AS HE STOOD. AP1’S SPEECH WAS SLURRED AND
       CONFUSED. AP1’S EYES WERE GLASSY AS WELL.

In paragraph E, Officer Magee affirmed that AP1 “FIRST STATED HE DID NOT HAVE MUCH

TO DRINK ‘IF ANY.’” “THEN HE STATED HE DID NOT HAVE ANY DRINKS.” In

paragraph F, Office Magee affirmed that “[t]here was no open container.” The remainder of the

affidavit discussed Officer Magee’s training and experience in these type of cases.

       The four corners of this affidavit give specific facts and circumstances that would permit a

magistrate to make a probable cause determination. Gonzales’s issue with the affidavit is not with

the specific facts listed but with the witness (“W1”) not being described or named. Gonzales

recognizes that an affidavit in support of a search warrant can contain hearsay. Indeed, although a


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search warrant cannot be based solely on hearsay or conclusory statements, a search warrant

affidavit may contain hearsay so long as a substantial basis for crediting the hearsay exists or

corroborating facts within the officer’s knowledge exist, respectively. See Gates, 462 U.S. at 241-

43. Gonzales argues that the hearsay by the witness in this affidavit cannot be credited because the

magistrate could not conclude a witness who was not described nor named was credible. According

to Gonzales, the affidavit needed to specifically state exactly who “W1” was and what type of

witness he was and whether he stayed at the scene and gave identifying information to the police

officers. The State responds that naming a witness in an affidavit is not required and that it is clear

from the affidavit that the witness was a bystander. We agree with the State.

       First, with regard to whether a witness’s name must be included in an affidavit, we note

that naming a witness in an affidavit supporting a search warrant does not make a witness more or

less credible in and of itself. The Fifth Circuit has recognized that “nothing is added to the

affidavits by the naming of informants.” United States v. Martin, 615 F.2d 318, 325 n.9 (5th Cir.

1980). That is, in looking at the four corners of an affidavit, a magistrate reading the name of an

informant does not necessarily impart whether that person is credible. According to the Fifth

Circuit, “[t]he naming of the informants places no facts relevant to their trustworthiness before the

magistrate.” Id.

       Second, the reliability of bystanders or victim-eyewitnesses to a crime need not be

established in the affidavit because “such persons are not intimately involved with the persons

informed upon and with the illegal conduct at hand as other informants often are.” Id. (quotations

omitted). That is, “[t]he citizen informer is presumed to speak with the voice of honesty and

accuracy.” State v. Duarte, 389 S.W.3d 349, 356 (Tex. Crim. App. 2012). “The criminal snitch

who is making a quid pro quo trade does not enjoy any such presumption; his motive is entirely

self-serving.” Id. Gonzales does not necessarily quibble with this statement of law. Instead,
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Gonzales claims that the magistrate could not reasonably infer from the affidavit that the witness

was a bystander or citizen informer. We disagree with Gonzales. The facts credited to the witness

in the affidavit are so specific that a reasonable magistrate could conclude that the witness was a

bystander or citizen informer. The affidavit is clear that the witness (“W1”) was a bystander who

happened upon the intersection where he saw Gonzales’s car sitting with its lights off and saw

another car almost hit Gonzales’s car. And, the affidavit then makes clear that Officer Magee

confirmed through his own observations other facts supporting the witness’s account. Thus, a

magistrate could reasonably conclude under the totality of circumstances presented to him in the

affidavit that there was a “fair probability” or “substantial chance” that evidence of a crime would

be found in Gonzales’s blood.

                 LOOKING OUTSIDE THE FOUR CORNERS OF THE AFFIDAVIT –
                 MATERIAL MISREPRESENTATION OR MATERIAL OMISSION?

       In his second issue, Gonzales argues that the affidavit contains a material misrepresentation

pursuant to Franks v. Delaware, 438 U.S. 154 (1978), because the affidavit does not reflect that

Officer Magee did not talk to the witness himself and instead learned of the witness’s statements

through another officer. Gonzales thus complains that the affidavit does not reflect this double-

hearsay. The State responds that such a complaint is not about Officer Magee making a material

misrepresentation in the affidavit—instead, the complaint is really that Officer Magee omitted a

fact from the affidavit. We agree with the State. Gonzales does not point to an affirmative statement

in the affidavit and claim that such a statement contained a material misrepresentation. Instead,

Gonzales is arguing that a statement of fact has been omitted from the affidavit. Thus, we conclude

that Gonzales’s argument is based on whether Officer Magee made a material omission, not

whether he made a material misrepresentation.




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        Since Franks, 438 U.S. at 155-56, defendants have been permitted to challenge the veracity

of statements contained within an affidavit in support of a search warrant. According to the Court,

pursuant to the Fourth Amendment, a defendant may challenge the veracity of such an affidavit

“where the defendant makes a substantial preliminary showing that a false statement knowingly

and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant

affidavit, and if the allegedly false statement is necessary to the finding of probable cause.” Id.

Thus, under Franks, a defendant who makes a substantial preliminary showing that a false

statement was made in a warrant affidavit knowingly and intentionally, or with reckless disregard

for the truth, may be entitled to a hearing, on the defendant’s request. Harris v. State, 227 S.W.3d

83, 85 (Tex. Crim. App. 2007) (citing Franks, 438 U.S. at 155-56). This hearing is required only

where the false statement is essential to the probable cause finding. Id. If at the hearing the

defendant establishes the allegation of perjury or reckless disregard by a preponderance of the

evidence, the affidavit’s false material is set aside. Id. If the remaining content of the affidavit does

not then still establish sufficient probable cause, the search warrant must be voided and the

evidence resulting from that search excluded. Id. An appellate court reviews the trial court’s ruling

on a Franks issue under the same standard applied to search and seizure issues generally. Emack

v. State, 354 S.W.3d 828, 838 (Tex. App.—Austin 2011, no pet.). The appellate court gives almost

total deference to the trial court’s rulings on questions of historical fact and mixed questions of

law and fact that turn on an evaluation of credibility and demeanor. Id. Questions of law are

reviewed de novo. Id.

        A. Should the analysis under Franks be extended to material omission contained within
           an affidavit supporting a search warrant?

        “By its express terms, the holding in Franks applies only to affirmative misstatements

contained in a probable cause affidavit.” Emack, 354 S.W.3d at 837. The State emphasizes in its


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brief that neither the Supreme Court nor the Texas Court of Criminal Appeals has extended Franks

to material omissions in affidavits supporting search warrants. In 2007, this court declined to

extend Franks, explaining that the Texas Court of Criminal Appeals had yet to decide the issue.

See Aragon v. State, 229 S.W.3d 716, 722 (Tex. App.—San Antonio 2007, no pet.) (citations

omitted). However, since 2007, a number of Texas appellate courts have extended the Franks

analysis to material omissions in a probable cause affidavit. See Darby v. State, 145 S.W.3d 714,

722 (Tex. App.—Fort Worth 2004, pet. ref’d); Blake v. State, 125 S.W.3d 717, 723-24 (Tex.

App.—Houston [1st Dist.] 2003, no pet.); Bosquez v. State, 792 S.W.2d 550, 551 (Tex. App.—El

Paso 1990, pet. ref’d); Heitman v. State, 789 S.W.2d 607, 610 (Tex. App.—Dallas 1990, pet.

ref’d); Melton v. State, 750 S.W.2d 281, 284 (Tex. App.—Houston [14th Dist.] 1988, no pet.); see

also United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980). And, some Texas appellate courts,

including the Texas Court of Criminal Appeals and this court, have assumed, but not decided, that

Franks applies to omissions of fact contained within a probable cause affidavit. See Renteria v.

State, 206 S.W.3d 689, 704 (Tex. Crim. App. 2006) (assuming application of Franks to omissions

and concluding that even if the information omitted from the affidavit was included, sufficient

probable cause existed to issue the search warrant); Thom v. State, 437 S.W.3d 556, 563-64 (Tex.

App.—Houston [14th Dist.] 2014, no pet.) (explaining that even presuming Franks applies to

material omissions, the appellant did not request a Franks hearing or make a preliminary showing);

Emack v. State, 354 S.W.3d 828, 838-39 (Tex. App.—Austin 2011, no pet.) (assuming without

deciding that Franks applies to omissions in an affidavit and holding that the appellant did not

show the officer omitted material facts from the affidavit either deliberately or with a reckless

disregard for the truth); Wise v. State, 223 S.W.3d 548, 557 (Tex. App.—Amarillo 2007, pet. ref’d)

(assuming Franks applies to omissions and holding even if omissions had been concluded, there

was probable cause to issue the warrant); Garza v. State, 161 S.W.3d 636, 640 (Tex. App.—San
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Antonio 2005, no pet.) (declining to extend Franks to omissions but addressing it in the

alternative). Finally, it must be noted that in an unpublished opinion, this court did hold that Franks

applied to material omissions in a probable cause affidavit:

        The Texas Court of Criminal Appeals has not recognized that a Franks analysis
        pertains to omissions as well as false statements. However, the Fifth Circuit, along
        with other Texas appellate courts, has concluded that allegations of material
        omissions are to be treated the same as claims of material misstatements.
        Accordingly, we will apply the Franks analysis to [the appellant]’s allegations.

Lamarre v. State, No. 04-11-00618-CR, 2013 WL 781778, at *5 (Tex. App.—San Antonio Mar.

1, 2013, pet. ref’d) (not designated for publication). Thus, unlike in 2007, there is now much legal

support for extending the analysis in Franks to material omissions contained in a probable cause

affidavit.

        Further, we note that the policies behind the Supreme Court holding in Franks also apply

to material omissions contained in probable cause affidavits. The “bulwark of Fourth Amendment

protection . . . is the Warrant Clause, requiring that, absent certain exceptions, police obtain a

warrant from a neutral and disinterested magistrate before embarking upon a search.” Franks, 438

U.S. at 164. In Franks, the Court noted that there were strong arguments against allowing veracity

challenges to probable cause affidavits; however, the Court concluded that these arguments were

“insufficient to justify an absolute ban on post-search impeachment of veracity.” Id. at 166

(emphasis in original). The Court then emphasized the “pressing considerations” in favor of

permitting veracity challenges. Id. First, the Court explained that “a flat ban on impeachment of

veracity could denude the probable cause requirement of all real meaning,” for a police officer

could deliberately resort to false allegations and “remain confident that the ploy was worthwhile.”

Id. at 168. Second, the Court noted that because the hearing before the magistrate is “necessarily

ex parte” and “frequently . . . marked by haste,” it will not always “suffice to discourage lawless

or reckless misconduct.” Id. at 169. Third, the Court explained that in a previous opinion, it had
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already rejected the notion that alternative sanctions were likely “to fill the gap.” Id. (citing Mapp

v. Ohio, 367 U.S. 643 (1961)). Fourth, the Court stated that because a magistrate’s determination

was already subject to appellate review, allowing veracity challenges “would not diminish the

importance and solemnity of the warrant-issuing process.” Id. Fifth, the Court rejected the

argument that a veracity challenge would “confuse the issue of the defendant’s guilt with the issue

of the State’s possible behavior,” because such a hearing would not be in the presence of the jury

and issues extraneous to guilt were already considered in probable cause reviews upon a motion

to suppress. Id. at 170. Finally, the Court explained that allowing veracity challenges to probable

cause affidavits would not truly amount to an extension of the exclusionary rule to a “new” area

because there is “no principled basis for distinguishing between the question of the sufficiency of

an affidavit, which also is subject to a post-search re-examination, and the question of its integrity.”

Id. at 171. In examining these “pressing considerations,” the Court refused to ban veracity

challenges to probable cause affidavits. Id. Instead, recognizing the competing interests at stake,

the Court created a high burden on the challenger, who was required to prove “deliberate

falsehood” or “reckless disregard for the truth” and then materiality of the content misrepresented.

Id. All of these “pressing considerations,” which the Court found necessitated the imposition of

the Franks test to challenges of veracity, apply equally to challenges of material omissions.

        We therefore hold that Franks does apply to challenges of material omissions contained in

probable cause affidavits.

        B. The Franks standard as applied to material omissions contained in probable cause
           affidavits

        Applying the Franks analysis to material omissions requires varying the analysis

somewhat. At the Franks hearing, a trial court would determine whether the defendant proved by

a preponderance of the evidence (1) the omissions were in fact made and (2) they were made


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intentionally or with a reckless disregard for the accuracy of the affidavit. Martin, 615 F.2d at 328.

If the defendant carries this burden, the trial court would determine whether, if the omitted material

had been included in the affidavit, the affidavit would still establish probable cause for the

defendant’s arrest. Id. If, after including the omitted material, the affidavit did not establish

probable cause, then the search warrant would be voided and the fruits of the search excluded. See

id.

                (1) Did Gonzales prove that Officer Magee omitted the fact knowingly and
                    intentionally, or with reckless disregard for the truth?

        Gonzales complains that Officer Magee omitted from his affidavit the fact that he did not

speak to the witness himself. Instead, Officer Magee spoke with another officer who spoke with

the witness. At the suppression hearing and later at trial, Officer Magee testified that he did not

speak directly to the witness and that another officer relayed to him what the witness had said.

Chavez, the witness in question, testified that at the scene, he spoke with a female officer. Thus,

Gonzales did show that Officer Magee’s affidavit did, in fact, omit that he did not speak with the

witness but obtained information about the witness’s statements from another officer.

        With regard to whether these omissions were made intentionally or with reckless disregard

for the accuracy of the affidavit, Gonzales argues that because “Magee knew he had not spoken

with this witness, omitting this fact was clearly done intentionally and knowingly.” We disagree

with Gonzales. From both Officer Magee’s testimony at the suppression hearing and the testimony

from all the witnesses at trial, it is clear that all four officers were part of the investigation and that

Officer Magee was just the one who ended up being the reporting officer – that is the officer who

wrote the report. As the officer coordinating the oral reports from all the other officers, his

omission could have reasonably been attributed to mere negligence. Therefore, the trial court did




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not err in determining Gonzales failed to show that Officer Magee made the omission intentionally

or with disregard to the truth.

               (2) Was this omission material?

       Further, even if Gonzales had made a showing that Officer Magee made the omission

intentionally or with reckless disregard to the truth, Gonzales still has not shown that the omission

was material. In this case, placing the omitted information into the affidavit (that is, that Officer

Magee learned of the witness’s statements from another officer) would make no difference to the

probable cause determination. Gonzales argues that placing the omitted information into the

affidavit would show the witness’s statements were hearsay within hearsay. However, double

hearsay may be used in an affidavit to show probable cause if the underlying circumstances

indicate a substantial basis for crediting each level of hearsay. State v. Walker, 140 S.W.3d 761,

766 (Tex. App.—Houston [14th Dist.] 2004, no pet.). As explained previously, there is a

substantial basis for crediting the witness’s statements in the affidavit because the magistrate could

reasonably infer W1 was a citizen informer. See Gates, 462 U.S. at 233-34. With regard to the

other level of hearsay, Officer Magee learning the information from the other officer, the Supreme

Court has explained that an officer can rely on information gained through other officers over the

course of an investigation. In United States v. Ventresca, 380 U.S. 102, 111 (1965), the Supreme

Court stated that “[o]bservations of fellow officers of the Government engaged in a common

investigation are plainly a reliable basis for a warrant applied for by one of their number.” Thus,

even if the omitted information were included in the affidavit, there would be a substantial basis

for crediting the hearsay at each level. Therefore, the trial court did not err in determining that

Gonzales failed to show that the omission in this case was material.




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                                          CONCLUSION

       In looking at the four corners of Officer’s Magee’s affidavit in support of the search

warrant, we hold that the magistrate could reasonably conclude under the totality of the

circumstances that there was a fair probability or substantial chance that evidence of a crime would

be found in Gonzales’s blood. Further, we conclude that an affidavit in support of a search warrant

may be challenged on the basis of a material omission under a modified Franks analysis. However,

because application of that modified analysis failed to negate probable cause in this case, we hold

that the trial court correctly determined that Gonzales’s rights under the Fourth Amendment were

not violated. As Gonzales’s rights under the Fourth Amendment were not violated by the search

warrant authorizing the blood draw in this case, we affirm the judgment of the trial court.


                                                  Karen Angelini, Justice

PUBLISH




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