                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                          No. 07-17-00285-CR


                            MATTHEW DON HENSLEE, APPELLANT

                                                   V.

                                THE STATE OF TEXAS, APPELLEE

                                On Appeal from the 18th District Court
                                       Johnson County, Texas1
                   Trial Court No. F50386, Honorable John Edward Neill, Presiding

                                           January 3, 2019

                                  MEMORANDUM OPINION
                         Before CAMPBELL and PIRTLE and PARKER, JJ.


        Matthew Don Henslee, appellant, pleaded guilty to felony driving while

intoxicated.2 He was sentenced to ten years’ imprisonment, probated to ten years of

community supervision. In this appeal, appellant argues that the trial court should have

granted his motion to suppress evidence. We affirm.



        1 Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to

this Court from the Tenth Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).

        2   See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2017).
                                        Background


       A deputy constable for Johnson County, Texas, Precinct 2, responded to a 911

call reporting a dark-colored Ford truck “swerving all over the road.” The deputy constable

initiated a traffic stop after he observed a black Ford truck, driven by appellant, following

closely behind a work truck, then swerving across lane markers without signaling. The

time of the stop was around 8:05 p.m. When he approached the vehicle, he saw two

open beer bottles in the rear floor board, and when he made contact with appellant, he

smelled the odor of an alcoholic beverage coming from the truck. Appellant’s speech was

slightly slurred, and he struggled to locate his driver’s license. He said he had consumed

six or seven vodka waters.


       Within two or three minutes, a deputy from the Johnson County Sheriff’s Office

arrived on the scene, and the two officers conferred. The second officer, who was more

experienced in DWI investigations, felt that he should continue to investigate. However,

because he was from a different law enforcement agency, he needed authorization from

his supervisor to take over.


       Appellant exited the truck and leaned against the tailgate. The deputy constable

told appellant that he might be able to call for a ride. Appellant told the officers he had

twice been convicted of DWI and that they could retrieve his occupational license from

the console of his truck. A supervising officer from the sheriff’s department arrived on the

scene around 8:22 p.m. After the officers conferred, the deputy asked appellant to

perform the standard field sobriety tests, but appellant refused.




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       Appellant was arrested for suspicion of driving while intoxicated and violating his

occupational license. He was placed in the deputy’s vehicle for transport at 8:32 p.m. At

the jail, appellant refused to provide blood or breath for analysis. The deputy then

obtained a warrant for appellant’s blood. The warrant was issued by the Judge of the

Johnson County Court at Law No. 2.


       Appellant was later charged with the felony offense of DWI. He filed a motion to

suppress, which was denied by the trial court. He subsequently entered a plea of guilty.

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

evidence because (1) his continued detention after the initial traffic stop was unlawful,

and (2) the warrant for his blood was issued unlawfully because the evidence failed to

show that he refused a request for a specimen of his blood or breath.


                                    Standard of Review


       We review a trial court’s ruling on a motion to suppress for an abuse of discretion.

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We view the record in the

light most favorable to the trial court’s determination, and will reverse the judgment only

if it is arbitrary, unreasonable, or “outside the zone of reasonable disagreement.” Id.

Because the trial court is the sole trier of fact, we give almost total deference to its

determination of historical facts. Id.




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                                          Analysis


Prolonged Detention


         Appellant raises three arguments related to the denial of his motion to suppress.

In his first issue, he contends that the officers did not diligently pursue their investigation

after he was stopped. Appellant does not contest the initial traffic stop, but challenges

his continued detention after it.


         Law enforcement officers are justified in stopping a vehicle when they have

reasonable suspicion to believe that a traffic violation has occurred. Guerra v. State, 432

S.W.3d 905, 911 (Tex. Crim. App. 2014). A traffic stop made to investigate a traffic

violation must be reasonably related to that purpose and may not be prolonged beyond

the time needed to complete the tasks associated with the traffic stop. See Kothe v.

State, 152 S.W.3d 54, 63-64 (Tex. Crim. App. 2004). However, if an officer develops

reasonable suspicion that the driver or another occupant of the vehicle is involved in

criminal activity, the officer may continue questioning the individual after the traffic stop

investigation is resolved. St. George v. State, 237 S.W.3d 720, 726-27 (Tex. Crim. App.

2007).     The reasonableness of an extended detention depends on whether law

enforcement officers diligently pursued a means of investigation that was likely to confirm

or dispel their suspicions expeditiously. United States v. Sharpe, 470 U.S. 675, 687-88,

105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). When determining the reasonableness of the

duration of a detention, courts may consider whether legitimate law enforcement

purposes were served by any delay in the investigation. Id. at 685. “When a traffic stop

detention is prolonged by a reasonable delay to comply with legitimate police policy, no



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Fourth Amendment violation has occurred.” Bullock v. State, 426 S.W.3d 226, 232 (Tex.

App.—Houston [1st Dist.] 2012, no pet.).


        Appellant argues that the officers’ authority for detaining him ended before the

deputy began his DWI investigation by offering appellant the field sobriety tests, because

the officers reasonably should have completed their tasks related to the investigation

before then. The State responds that the delay in the investigation was for legitimate law

enforcement purposes and, consequently, appellant’s continued detention was not

unreasonable.


        Here, appellant was stopped following an observed traffic violation. Prior to the

conclusion of the traffic stop, the two officers on the scene observed that appellant had

slowed or slurred speech and had difficulty in locating his driver’s license. They also saw

open and empty alcoholic beverage containers in appellant’s vehicle and heard

appellant’s admission that he had consumed several alcoholic drinks prior to the traffic

stop.   These observations were made before the officers had positively identified

appellant and checked for warrants, i.e., before the initial traffic stop was completed.

Therefore, the officers developed reasonable suspicion during their initial investigation to

justify an extended detention for a DWI investigation.


        Although the sheriff’s deputy had authority to make an arrest for DWI, he testified

that he had to get clearance from his supervisor to do so, because he worked for a

different law enforcement agency than the officer who made the initial traffic stop. The

evidence shows that the supervisor arrived on the scene approximately sixteen minutes




                                             5
after the initial stop. Within ten minutes of the supervisor’s arrival, appellant was asked

to perform a field sobriety test, then arrested.


       We conclude that the officers possessed specific, articulable facts leading them to

conclude that appellant was engaged in criminal activity and that, therefore, they had

reasonable suspicion to detain him. Furthermore, the trial court could have reasonably

concluded that appellant’s prolonged detention—from the time the officers observed the

signs suggesting that appellant was driving while intoxicated to the time he was asked to

perform field sobriety tests—was not unreasonable. See, e.g., Belcher v. State, 244

S.W.3d 531, 540-42 (Tex. App.—Fort Worth 2007, no pet.) (detention for additional

twenty-seven minutes to allow another officer to perform DWI investigation was not

unreasonable under the circumstances); Smith v. State, No. 03-06-00085-CR, 2007 Tex.

App. LEXIS 1783, at *10 (Tex. App.—Austin Mar. 7, 2007, pet. ref’d) (mem. op., not

designated for publication) (delaying DWI investigation approximately twenty-six minutes

to await arrival of rookie officer for training purposes was reasonable, as it furthered

legitimate law enforcement purposes). We conclude the trial court did not abuse its

discretion in determining that appellant’s detention was not unduly prolonged.         We

overrule appellant’s first issue.


Validity of Search Warrant


       In his second issue, appellant contends that the warrant issued for his blood was

invalid because it did not comply with article 18.01(j) of the Texas Code of Criminal

Procedure. Article 18.01(j) authorizes a magistrate to issue a warrant for a blood draw in

DWI cases if the suspect refuses to consent to either a blood draw or a breath test. TEX.



                                              6
CODE CRIM. PROC. ANN. art. 18.01(j) (West Supp. 2018); Thom v. State, 437 S.W.3d 556,

560 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Appellant argues that, because the

affidavit in support of the warrant does not indicate that appellant refused to submit to a

breath or blood test as required by article 18.01(j), the warrant was unlawful.


       Chapter 18 of the Texas Code of Criminal Procedure governs the issuance of

search warrants. Appellant’s argument presupposes that the warrant in this case was

issued pursuant to article 18.01(j) because it was issued by the judge of the county court

at law, who is a “magistrate” under article 2.09 of the Code of Criminal Procedure. See

TEX. CODE CRIM. PROC. ANN. art. 2.09 (West Supp. 2018). While we agree with appellant’s

assertion that a warrant issued under 18.01(j) requires evidence that the suspect refused

to submit to a breath or blood alcohol test, we disagree with his proposition that 18.01(j)

is the only available avenue for a magistrate to issue a warrant in DWI cases.


       As a statutory county court judge, the Judge of Johnson County Court at Law No.

2 is one of the magistrates permitted to sign an evidentiary search warrant under article

18.01(c). TEX. CODE CRIM. PROC. ANN. art. 18.01(c). An evidentiary search warrant may

issue for the extraction of blood. Clay v. State, 391 S.W.3d 94, 97 (Tex. Crim. App. 2013).

As we explained in Barrios v. State, subsection (j) of article 18.01 is intended to expand,

not restrict, the pool of judges who can issue a warrant to obtain a blood specimen. 452

S.W.3d 835, 846 (Tex. App.—Amarillo 2014, pet. ref’d); see also Zalman v. State, No.

13-13-00471-CR, 2015 Tex. App. LEXIS 1074, at *10-12 (Tex. App.—Corpus Christi Feb.

5, 2015, pet. ref’d) (mem. op., not designated for publication). Therefore, where there is

no showing that the accused citizen has refused to give a specimen of breath or blood,

as required for a warrant under subsection (j), law enforcement is not barred from seeking

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a general evidentiary warrant under subsection (c), on the grounds set forth in article

18.02(a)(10). The grounds for an evidentiary warrant issued under article 18.02(a)(10)

do not include a suspect’s refusal to voluntarily provide a breath or blood sample. TEX.

CODE CRIM. PROC. ANN. arts. 18.01(c), 18.02(a)(10) (West Supp. 2018).


       Here, the statutory county court judge was authorized to issue the warrant for a

specimen of appellant’s blood pursuant to article 18.01(c) of the Texas Code of Criminal

Procedure. We therefore overrule appellant’s second issue.


Article 38.23


       In his third issue, appellant urges that article 38.23 of the Texas Code of Criminal

Procedure mandates suppression of the evidence against him. Article 38.23 provides

that “[n]o evidence obtained by an officer or other person in violation of any provisions of

the Constitution or laws of the State of Texas, or of the Constitution or laws of the United

States of America, shall be admitted in evidence against the accused on the trial of any

criminal case.” TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2018). We have held that

appellant’s detention was not unlawfully extended and that the warrant for appellant’s

blood draw was not unlawfully issued. Therefore, we conclude that the trial court did not

abuse its discretion by denying the motion to suppress.         Appellant’s third issue is

overruled.




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                                      Conclusion


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




                                                       Judy C. Parker
                                                          Justice


Do not publish.




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