                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-17-00105-CR



                LANI LAIRD, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the County Court at Law
                  Rusk County, Texas
            Trial Court No. 16-06-0453-CR




      Before Morriss, C.J., Moseley and Burgess, JJ.
        Memorandum Opinion by Justice Burgess
                                 MEMORANDUM OPINION
        Lani Laird pled no contest to and was found guilty of driving while intoxicated (DWI) with

a blood-alcohol concentration of 0.15 or more, a Class A misdemeanor. See TEX. PENAL CODE

ANN. § 49.09(d) (West Supp. 2016). Pursuant to her negotiated plea bargain agreement, Laird was

sentenced to three days in the Rusk County Jail.

        On appeal, Laird argues that the trial court should have granted her motion to suppress

evidence obtained from a search warrant for blood. Specifically, Laird contends that the affidavit

contained a false statement that was made knowingly and intentionally, or with reckless disregard

for the truth. Consequently, she argues, if the false statement is omitted from the supporting

affidavit, the remaining allegations in the affidavit fail to demonstrate probable cause that evidence

of intoxication would be found in her blood. Yet, the trial court impliedly found that Laird did not

meet her burden of proving that a false statement was made knowingly and intentionally, or with

reckless disregard for the truth, and Laird does not challenge that finding on appeal. As a result,

omission of the statement was not required. Thus, the point of error on appeal, which argues only

that the supporting affidavit was insufficient to support the magistrate’s probable cause

determination if the false statement is removed, is moot.

        In her last point, Laird argues that the evidence was legally insufficient to support her DWI

conviction. Because Laird entered into a negotiated plea bargain agreement that was executed by

all parties, and the trial court’s certification of the right to appeal does not permit her to challenge

the sufficiency of the evidence, we are without jurisdiction to decide Laird’s last point of error.

Accordingly, we affirm the trial court’s judgment.


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I.     Factual Background

       Laird filed a motion to suppress, which argued (1) that the affidavit supporting the warrant

for a blood draw contained a false statement and (2) that, absent the false statement, the remaining

portions of the affidavit were insufficient to establish probable cause. During the suppression

hearing, Dustin Nichols, a trooper with the Texas Department of Public Safety, testified that he

arrested Laird for DWI after she was involved in a car accident. In order to obtain a specimen of

Laird’s blood, Nichols executed an affidavit for a search warrant authorized by a local magistrate.

We examine the affidavit at issue in detail.

       In paragraph four of the affidavit form, Nichols swore that Laird had operated a motor

vehicle in a public place in Rusk County while intoxicated. In paragraph five, Nichols was to

identify which of three factual scenarios he was relying on to demonstrate that Laird was operating

a motor vehicle in a public place: Option A was to be checked if an officer observed the suspect

driving the motor vehicle; Option B was to be checked if the suspect admitted that she was driving

the motor vehicle, and Option C was to be checked if a witness informed that officer that the

suspect was seen operating the motor vehicle. Nichols checked the first box, indicating that he

had seen Laird operating the motor vehicle.

       In paragraph six of the affidavit, Nichols swore that he smelled a strong odor of alcohol on

Laird’s person and observed, “glassy & red” eyes, slurred speech, and unsteady balance. In

paragraph eight, Nichols described additional facts that led him to believe that Laird was

intoxicated while operating a motor vehicle, including that she was “involved in a crash,” had the

strong odor of alcohol on her breath, “showed all clues” of intoxication on both the horizontal and

                                                 3
vertical gaze nystagmus tests, and refused to perform the walk-and-turn and one-leg-stand test.

The standardized field sobriety scoring sheet, which was incorporated into the affidavit, reflected

Laird’s performance on the Horizontal Gaze Nystagmus Test, reflected her refusal to take other

field sobriety tests, and also contained Nichols’ belief that Laird was intoxicated due to alcohol.

       At the suppression hearing, Laird argued that Nichols checked the wrong option in

paragraph five of the affidavit form. Nichols admitted that he had not actually seen Laird operating

a vehicle and that he had mistakenly checked the box on the form indicating that he had done so.

Nichols, who had arrived at the scene after the accident, explained his “careless mistake” as

follows:

       Typically these are filled out on arrests made when we make an initial traffic stop,
       not at one out of a crash. And honestly we do -- I did this whenever I got to the
       hospital; filled it out. And I had been listening to Ms. Laird, and I just kind of got
       a little ahead of myself and got going a little too quick, and I didn’t read each one
       of the deals -- each one of the individual phrases there.

       During the hearing, Laird argued that the case of Franks v. Delaware, 438 U.S. 154 (1978),

required the trial court to omit paragraph five of the affidavit because it was false. When the State

attempted to introduce evidence that Nichols checked the box because he knew that Laird was the

only person in the vehicle when it crashed, an option not presented in paragraph five, Laird

objected to the State’s introduction of any evidence outside of the four-corners of the affidavit,

and she argued that the remaining portion of the affidavit was insufficient to support a magistrate’s

determination of probable cause. Ultimately, the trial court denied Laird’s suppression motion,

without issuing any findings of fact or conclusions of law.



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II.    Laird’s First Point of Error is Moot

       While Laird’s appellate brief does not mention Franks, it asks this Court to set aside

paragraph five of the affidavit. This remedy is available only if a Franks’ violation is established.

“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 by the Fourth Amendment 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).

       Because there is a presumption of validity with respect to an affidavit supporting the search

warrant, “[t]o mandate an evidentiary hearing, the challenger’s attack must be more than

conclusory.” Franks, 438 U.S. at 171. The United States Supreme Court has explained what is

required to obtain an evidentiary hearing:

       There must be allegations of deliberate falsehood or of reckless disregard for the
       truth, and those allegations must be accompanied by an offer of proof. They should
       point out specifically the portion of the warrant affidavit that is claimed to be false;
       and they should be accompanied by a statement of supporting reasons. Affidavits
       or sworn or otherwise reliable statements of witnesses should be furnished, or their
       absence satisfactorily explained. Allegations of negligence or innocent mistake are
       insufficient. . . . Finally, if these requirements are met, and if, when material that is
       the subject of the alleged falsity or reckless disregard is set to one side, there
       remains sufficient content in the warrant affidavit to support a finding of probable
       cause, no hearing is required. On the other hand, if the remaining content is
       insufficient, the defendant is entitled, under the Fourth and Fourteenth
       Amendments, to his hearing. Whether he will prevail at that hearing is, of course,
       another issue.

Id. at 171–72.




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         Laird’s suppression motion alleged:

         The warrant was illegally issued for the reason that the supporting affidavit does
         not reflect sufficient probable cause to justify the issuance of a search warrant, in
         that: (1) the affidavit contains false and incorrect information that affiant, Trooper
         Dustin Nichols, observed Defendant operating a motor vehicle in a public place;

                  ....

         The search warrant was illegally issued because the issuing magistrate was misled
         by information in the affidavit that the affiant knew was false or would have known
         was false except for his reckless disregard for the truth.

These assertions were not supported by an offer of proof, as required by Franks to obtain a hearing.

Id.; see Harris, 227 S.W.3d at 85 (“specific allegations and evidence must be apparent in the

pleadings in order for a trial court to even entertain a Franks proceeding”). Nevertheless, at the

hearing, Laird was required to “establish[] the allegation of perjury or reckless disregard by a

preponderance of the evidence” before the trial court was required to set the factually inaccurate

material aside.1 Harris, 227 S.W.3d at 85.

         The trial court’s summary denial of the suppression motion did not explain its reasoning.

On appeal, Laird does not argue that she met her burden under Franks. Yet, because Laird seeks

to exclude paragraph five of the affidavit—relief only available under Franks—we must address

the issue.

         When the trial court does not file findings of fact, we should assume that the trial court

made implicit findings that support its ruling, so long as those implied findings are supported by




“If the remaining content of the affidavit does not then still establish sufficient probable cause, the search warrant
1

must be voided and the evidence resulting from that search excluded.” Franks, 438 U.S. at 171–72.

                                                          6
the record. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007); State v. Ross, 32

S.W.3d 853, 855–56 (Tex. Crim. App. 2000). The trial court’s evidentiary ruling “will be upheld

on appeal if it is correct on any theory of law that finds support in the record.” Gonzalez v. State,

195 S.W.3d 114, 126 (Tex. Crim. App. 2006); see Romero v. State, 800 S.W.2d 539, 543 (Tex.

Crim. App. 1990).

         We begin by implying a finding that Laird failed to meet her burden of showing deliberate

falsity or reckless disregard for the truth. We review the trial court’s implied finding under a mixed

standard of review.2 State v. Verde, 432 S.W.3d 475, 481 (Tex. App.—Texarkana 2014, pet. ref’d).

“At a Franks hearing, the trial court is owed great deference as sole fact-finder and judge of the

witnesses’ credibility.” Clement v. State, 64 S.W.3d 588, 592–93 (Tex. App.—Texarkana 2001,

pet. ref’d).

         Here, Nichols testified that the particular affidavit form he filled out was typically used in

the context of a traffic stop. Nichols was only presented with three options in paragraph five of

the affidavit which made sense in the context of a traffic stop. The second and third options

required either Laird’s admission that she was the driver of the vehicle, or a witness’ statement

that Laird was the driver. Possibly because Laird was involved in a crash, Nichols chose the first

option, which was that he had personally observed her operating the vehicle. While this statement




2
 “We give almost total deference to a trial court’s rulings on questions of historical fact and application-of-law-to-fact
questions that turn on an evaluation of credibility and demeanor while we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor.” Verde, 432 S.W.3d at 481 (quoting Johnson v. State, 68
S.W.3d 644, 652–53 (Tex. Crim. App. 2002)).

                                                            7
was factually inaccurate, the trial court heard testimony that Nichols had just made a careless

mistake.3

         In this circumstance, while the statement was factually inaccurate, the trial court, as the

fact-finder, was free to exercise its discretion in concluding that Laird did not establish that Nichols

made the assertion intentionally, knowingly, or with reckless disregard for the truth by a

preponderance of the evidence. Nichols testified that he made a mistake, and Laird offered no

proof to refute that testimony. Further, the trial court heard that Nichols was only presented with

three options on a form typically used in DWI traffic stops. Because Nichols arrived on the scene

after the accident, the court could have decided that Nichols chose the most applicable option,

though he was mistaken in doing so. In either case, innocent mistakes or even negligence are not

sufficient to support a Franks claim. See Franks, 438 U.S. at 155–56; Dancy v. State, 728 S.W.2d

772, 783 (Tex. Crim. App. 1987) (“A misstatement in an affidavit that is merely the result of

simple negligence or inadvertence, as opposed to reckless disregard for the truth, will not render

invalid the warrant based on it.”); Ramsey v. State, 579 S.W.2d 920, 921 (Tex. Crim. App. 1979).

         Because the trial court did not err in impliedly rejecting Laird’s Franks claim, Laird is not

entitled to the remedy provided by Franks, which would require setting aside paragraph five in

determining whether the affidavit was sufficient to establish probable cause.                           Yet, Laird’s

argument on appeal is that, if paragraph five is set aside, the magistrate did not have sufficient

information to make a probable cause determination. She does not argue that the entire affidavit,


3
 When the State attempted to question Nichols as to why he may have checked the first box, Laird objected and argued
that the trial court could not consider evidence outside of the four corners of the affidavit. The trial court sustained
the objection.
                                                           8
including paragraph five, was insufficient. Accordingly, our finding that paragraph five was not

required to be set aside moots Laird’s first point of error on appeal.

III.   We Lack Jurisdiction Over Laird’s Second Issue on Appeal

       Laird argues that the evidence was insufficient to establish her guilt. The State argues that

we lack jurisdiction over this issue. We agree.

       It is undisputed that Laird and the State entered into a plea bargain agreement, that all

parties performed under the agreement, and that the trial court approved the agreement and

sentenced Laird accordingly. The Texas Rules of Appellate Procedure provide,

       In a plea bargain case -- that is, a case in which a defendant’s plea was guilty or
       nolo contendere and the punishment did not exceed the punishment recommended
       by the prosecutor and agreed to by the defendant -- a defendant may appeal only:
               (A)      those matters that were raised by written motion filed and ruled on
       before trial, or
               (B)      after getting the trial court’s permission to appeal.

TEX. R. APP. P. P. 25.2. The trial court’s certification of Laird’s right to appeal only granted Laird

permission to appeal matters raised by written motion filed and ruled on before trial. Laird did not

have permission to appeal the legal sufficiency of the evidence. Accordingly, we lack jurisdiction

over Laird’s second point of error. See TEX. R. APP. P. 25.2(d).




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IV.   Conclusion

      We affirm the trial court’s judgment.



                                              Ralph K. Burgess
                                              Justice

Date Submitted:      October 26, 2017
Date Decided:        October 31, 2017

Do Not Publish




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