AFFIRM; and Opinion Filed January 23, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00119-CR

                             MYRON EARL CANADY, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the County Criminal Court No. 3
                                   Dallas County, Texas
                           Trial Court Cause No. MB1655264-C

                             MEMORANDUM OPINION
                        Before Justices Lang-Miers, Brown, and Whitehill
                                    Opinion by Justice Brown
       Following a jury trial, Myron Earl Canady appeals his conviction for Class B misdemeanor

driving while intoxicated (DWI). In two issues, he contends there is insufficient evidence to prove

he committed the offense and contends the trial court erred in failing to suppress the results of a

blood test conducted under a search warrant. We affirm the trial court’s judgment.

       At trial, Dallas Police Officer Alexander Shirley testified that on April 23, 2016, he was on

patrol at 5 a.m. On a public street, he came into contact with someone he later learned was

appellant. The officer testified that appellant was driving an ATV, or four-wheeler, on a sidewalk.

The ATV was designed for one person, but appellant had a passenger with him. In addition,

appellant was not wearing a helmet or other safety gear. The officer performed a traffic stop.

Appellant fumbled around a bit to get his I.D. out. Officer Shirley noticed a strong odor of alcohol
on appellant’s breath. He also noticed that appellant’s eyes were glassy and he was unsteady, even

when sitting on the ATV. The officer performed three standard field sobriety tests, the H.G.N.,

the walk-and-turn test, and the one-leg stand. Appellant did not pass any of these tests. Officer

Shirley arrested appellant and took him to jail, where he was placed in the intoxilyzer room.

Appellant declined to consent to a blood or breath sample. The officer then obtained a search

warrant for a sample of appellant’s blood and took appellant to a hospital to have his blood drawn.

The State presented evidence that the results of appellant’s blood test indicated his blood alcohol

level was .144 grams of ethanol per 100 milliliters of blood, which was above the legal limit.

       In his first issue, appellant contends the evidence is insufficient to prove he committed

DWI. A person commits the offense of DWI if he is intoxicated while operating a motor vehicle

in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2017). Appellant’s sufficiency

challenge is limited to the issue of whether he operated the ATV. The penal code does not define

“operating” for purposes of the DWI statute. Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim.

App. 2012). The court of criminal appeals has stated that a person operates a vehicle when the

totality of the circumstances demonstrate that he took action to affect the functioning of his vehicle

in a manner that would enable the vehicle’s use. Id.

       When reviewing the sufficiency of the evidence, we consider all of the evidence in the light

most favorable to the verdict to determine whether, based on that evidence and the reasonable

inferences therefrom, a factfinder was rationally justified in finding guilt beyond a reasonable

doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Jackson v. Virginia,

443 U.S. 307, 318–19 (1979). The factfinder is the sole judge of the credibility of the witnesses

and the weight to be given their testimony. Temple, 390 S.W.3d at 360.

        Appellant maintains the evidence regarding whether police saw him driving the ATV is

ambiguous. We disagree. When asked the reason he came into contact with appellant, Officer

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Shirley testified that appellant was driving an ATV on a sidewalk. On cross-examination, defense

counsel asked the officer directly, “The ATV in this particular case, you say you saw him driving

it?” Officer Shirley responded, “Yes.” The jury was rationally justified in finding beyond a

reasonable doubt that appellant committed DWI. We overrule appellant’s first issue.

           In his second issue, appellant contends the trial court erred in failing to suppress the results

of his blood test because Officer Shirley’s affidavit in support of the search warrant contained false

statements. His argument is that his behavior as captured on video at the jail is inconsistent with

Officer Shirley’s description of his behavior in the affidavit.

           Prior to voir dire, appellant made an oral motion to suppress the blood evidence and asked

that it be carried with the trial. The judge asked for a copy of the probable cause affidavit and

indicated that if appellant was seeking a Franks hearing it was “probably a little untimely” but he

would entertain it. The next day, after both sides closed, the trial court took up the motion to

suppress.1 Appellant asked the judge to suppress the blood evidence because appellant’s behavior

on video taken in the intoxilyzer room did not match Officer Shirley’s description of his behavior

in his affidavit. The only behavior described in the affidavit that appellant specifically mentioned

to the trial court was “talkative.” The affidavit also indicated appellant’s speech was “thick-

tongued,” “slurred,” “slow,” and “mumbled” and that he was cooperative. Earlier that day, outside

the presence of the jury, the judge watched the video in question. The trial court denied the motion

to suppress. The judge indicated that even if he eliminated slow, mumbled, and talkative from the

affidavit, other information in the affidavit provided probable cause that appellant operated a motor

vehicle in a public place while intoxicated.




      1
        The charge instructed the jury that “intoxicated” meant either that the defendant did not have the normal use of his mental or physical
faculties by reason of the introduction of alcohol into his body or the defendant had an alcohol concentration of at least .08. The judge stated that
if he decided to suppress the blood evidence, he would take the instruction about .08 out of the charge.

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       A search warrant may be obtained from a magistrate only after submission of an affidavit

setting forth substantial facts establishing probable cause. State v. Jordan, 342 S.W.3d 565, 568

(Tex. Crim. App. 2011). Probable cause exists if, under the totality of the circumstances set forth

in the affidavit before the magistrate, there is a fair probability that evidence of a crime will be

found in a particular place at the time the warrant is issued. Id. at 568–69. Under Franks v.

Delaware, 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 upon request. Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App.

2007); see Franks v. Delaware, 438 U.S. 154 (1978). An affidavit supporting a search warrant

begins with a presumption of validity. Cates v. State, 120 S.W.3d 352, 355 (Tex. Crim. App.

2003). To be granted a Franks hearing a defendant must: (1) allege deliberate falsehood or

reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit

claimed to be false; (2) accompany these allegations with an offer of proof stating the supporting

reasons; and (3) show that when the portion of the affidavit alleged to be false is excised from the

affidavit, the remaining content is insufficient to support issuance of the warrant. Harris, 227

S.W.3d at 85. We review a trial court’s ruling on a Franks suppression issue under a mixed

standard of review that gives almost total deference to the trial court’s ruling on questions of fact

that depend upon evaluations of credibility and demeanor but reviews de novo the application of

the law. Jones v. State, 338 S.W.3d 725, 739 (Tex. App.—Houston [1st Dist.] 2011), aff’d, 364

S.W.3d 854 (Tex. Crim. App. 2012).

       Any inconsistencies between appellant’s behavior at the jail and as described in the

affidavit do not establish that appellant’s behavior at the time of the traffic stop was inconsistent

with the description in the affidavit.      Nevertheless, we will address appellant’s complaint.

Appellant contends the video shows he was uncooperative, while the affidavit indicated he was

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cooperative. He also contends he was mute and that his speech was not slurred, slow, or mumbled.

But even if we assume appellant made a sufficient offer of proof to support his allegation that

Officer Shirley’s affidavit contained deliberate falsehoods or a reckless disregard for the truth in

these respects, he cannot show that, absent the allegedly false information, the remaining content

in the affidavit is insufficient to support issuance of the search warrant. The affidavit states that

Officer Shirley observed appellant operating a “4 wheel all terrain vehicle” on the sidewalk. The

officer noticed a strong odor of alcohol on appellant. Appellant’s eyes were bloodshot and glassy.

His balance was unsteady and swaying. The affidavit contained the results of the field sobriety

tests, which were noted to be reliable indicators of intoxication. Further, Officer Shirley noted that

when asked to perform the sobriety tests, appellant said, “I’m intoxicated, well not intoxicated,

intoxicated.” Also, appellant refused to provide a breath or blood sample. These statements in the

affidavit alone were sufficient to show probable cause that appellant committed DWI. See, e.g.,

Luckenbach v. State, 523 S.W.3d 849, 856 (Tex. App.—Houston [14th Dist.] 2017, no pet.). The

trial court did not err in denying appellant’s motion to suppress. We overrule appellant’s second

issue.

         We affirm the trial court’s judgment.




                                                    /Ada Brown/
                                                    ADA BROWN
                                                    JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b).

170119F.U05




                                                 –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 MYRON EARL CANADY, Appellant                      On Appeal from the County Criminal Court
                                                   No. 3, Dallas County, Texas
 No. 05-17-00119-CR        V.                      Trial Court Cause No. MB1655264-C.
                                                   Opinion delivered by Justice Brown,
 THE STATE OF TEXAS, Appellee                      Justices Lang-Miers and Whitehill
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 23rd day of January, 2018.




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