Affirmed and Opinion filed October 23, 2018.




                                       In the

                     Fourteenth Court of Appeals

                               NO. 14-17-00660-CR

                    DIEGO BALDEMAR ISLAS, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 339th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1413044

                                 OPINION
      Appellant Diego Baldemar Islas was indicted on a felony charge of
intoxication manslaughter.    See Tex. Penal Code Ann. § 49.08 (West 2018).
Appellant pleaded guilty after the trial court denied his motion to suppress evidence
of intoxication obtained from a blood draw. The trial court sentenced appellant to
ten years’ confinement in the Institutional Division of the Texas Department of
Criminal Justice. In a single issue, Appellant challenges the trial court’s denial of
his motion to suppress evidence obtained from the blood draw. We overrule
appellant’s issue and affirm.

                                I.    BACKGROUND
      At approximately 1:00 a.m. on New Year’s Day 2014, appellant was driving
when he ran a red light and hit another vehicle. The collision killed a passenger in
the other vehicle. Appellant was taken to the hospital.

      At the hospital, appellant’s blood was taken three times. At 2:40 a.m., hospital
personnel drew a sample of appellant’s blood for medical purposes. After appellant
refused to voluntarily provide a blood sample for police, Officer Perales of the
Houston Police Department’s DWI Task Force instructed hospital personnel to draw
appellant’s blood without a search warrant; this sample was taken at 2:59 a.m.
Perales subsequently sought a search warrant authorizing a blood draw from
appellant. Perales supported his warrant request to the Harris County magistrate
with an affidavit.

      The affidavit, sworn to by Perales, stated and supported Perales’s belief that
appellant had been unlawfully operating a motor vehicle in a public place while
intoxicated. According to the affidavit, Officer Bymaster was dispatched to the
scene of the collision and spoke to a witness. The witness stated she had observed
appellant’s vehicle run the red light and “T-bone” another vehicle. A person had
been ejected from the other vehicle and the witness unsuccessfully attempted C.P.R.
on that person. Bymaster came into contact with appellant and observed he had “a
distinct odor of alchol [sic] emitting from his person and breath.” Bymaster then
requested a drug recognition unit respond to the incident. Perales responded and
met Bystander and appellant at the hospital. At the hospital, Perales observed that
appellant “had a distinct odor of alcohol emitting from his breath, slurred speech,
and cyclic mood swings.” “Defendant admitted to drinking one eight ounce drink
that contained Jack Daniels alcohol and Coke at 12:20 a.m.” The affidavit further

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explained that Perales administered the horizontal gaze nystagmus test, and
appellant showed six clues of intoxication.                 Based on the totality of the
circumstances, including appellant’s actions and performance prior to the testing,
Perales formed the opinion that appellant was intoxicated by alcohol and had lost
the normal use of his mental and physical faculties. The affidavit concluded with a
request for the issuance of a warrant to take a sample of appellant’s blood.

       At 4:07 a.m., the magistrate determined probable cause existed and issued the
search warrant based on the facts contained in the affidavit. At 5:24 a.m., appellant’s
blood was drawn pursuant to the warrant.1

       Toxicology results for the blood sample taken pursuant to the warrant
indicated that appellant had a blood alcohol concentration of 0.075. Retrograde
extrapolation from this result indicated that appellant’s blood alcohol concentration
at the time of the collision was between 0.08 and 0.14.

       Appellant was indicted on a felony charge of intoxication manslaughter.

       Before the trial court, appellant moved to suppress the evidence obtained from
all three blood draws. The trial court ultimately granted appellant’s motion with
respect to the first two blood draws but not the third. In support of its ruling, the
trial court made the following relevant conclusions of law:

       The fact that a warrantless blood draw had already been obtained was
       not a material fact that needed to be included in the affidavit for the
       second legal blood draw.
       If the fact that a warrantless blood draw had already been performed
       had been included in the affidavit for the second legal blood draw it
       would have had no legal bearing on the Magistrate’s decision as to
       whether to issue the warrant in this case.

       1
        There is no evidence in the record that the State obtained toxicology results on the blood
samples drawn before the warrant was executed.

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      Appellant waived a jury trial and pleaded guilty to intoxication manslaughter
without an agreed recommendation as to punishment. After a punishment hearing
before the trial court, the trial court found that appellant used or exhibited a deadly
weapon during the commission of the offense. The trial court sentenced appellant
to ten years of confinement in the Institutional Division of the Texas Department of
Criminal Justice. Having retained his right to appeal, Islas now appeals the trial
court’s denial of his motion to suppress evidence obtained in the third blood draw.

                                   II.    ANALYSIS

A.    Standard of review

      When reviewing a trial court’s ruling on a motion to suppress, we generally
apply a bifurcated standard of review, giving almost total deference to the trial
court’s determinations of fact and reviewing de novo the trial court’s application of
the law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). However,
where the motion to suppress is based upon a magistrate’s decision to issue a
warrant, there are no credibility determinations to which we must defer because the
trial court is constrained to the four corners of the affidavit. Id.

      When we review the magistrate’s decision to issue a warrant, we apply a
highly deferential standard because of the constitutional preference for searches to
be conducted pursuant to a warrant as opposed to a warrantless search. Id.; see
Illinois v. Gates, 462 U.S. 213, 236 (1983). “As long as the magistrate had a
substantial basis for concluding that probable cause existed, we will uphold that
magistrate’s probable cause determination.” McLain, 337 S.W.3d at 271; see State
v. Dugas, 296 S.W.3d 112, 115 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d)
(explaining that review of magistrate’s issuance of search warrant is “not de novo”
and that “great deference is given to the magistrate’s determination of probable


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cause”). Under this highly deferential review—which the Texas Court of Criminal
Appeals calls the “substantial basis” standard—the reviewing court’s duty is simply
to ensure the magistrate had a substantial basis for concluding that probable cause
existed. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (citing W.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.7(c) at 452
(4th ed. 2004 & Supp. 2009–2010)).

B.    Probable cause required for blood samples

      The United States and Texas Constitutions provide that no search warrant
shall issue except upon probable cause as supported by an oath or affirmation. See
U.S. Const. amend. IV; Tex. Const. art. I, § 9. Similarly, the Texas Code of Criminal
Procedure provides that no search warrant shall issue except upon an affidavit
establishing probable cause. See Tex. Code Crim. Proc. art. 18.01(b) (West 2018).
A search warrant may be obtained from a magistrate only after submission of an
affidavit setting forth facts establishing probable cause. State v. Jordan, 342 S.W.3d
565, 568 (Tex. Crim. App. 2011); see Tex. Code Crim. Proc. art. 18.01(b).

      Probable cause exists if, under the totality of the circumstances in the affidavit,
there is a “fair probability” that contraband or evidence of a crime will be found in
a particular place at the time the warrant is issued. Jordan, 342 S.W.3d at 568–69;
Flores, 319 S.W.3d at 702; see Gates, 462 U.S. at 238. In other words, probable
cause exists when a magistrate has “a substantial basis for concluding that a search
would uncover evidence of wrongdoing.” Dugas, 296 S.W.3d at 116.

      Where the search warrant sought is for blood evidence to prove intoxication,
the magistrate typically must determine probable cause exists that a blood test would
provide evidence showing appellant was intoxicated. See Thom v. State, 437 S.W.3d
556, 561 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Whether the facts stated
in the affidavit establish probable cause depends on the totality of the circumstances.
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Dugas, 296 S.W.3d at 116. Evidence of intoxication may include, for example,
slurred speech, bloodshot eyes, or the odor of alcohol on the breath. Harris v. State,
204 S.W.3d 19, 25 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (citing Cotton
v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985)).

      In this case, the magistrate’s role was to determine whether there was a
substantial basis to believe that evidence of driving while intoxicated, i.e., an illegal
concentration of blood alcohol, would be found in appellant’s blood.                The
observations described in Perales’s affidavit—appellant’s running a red light, hitting
another vehicle, the odor of alcohol emitting from appellant’s breath, his slurred
speech and cyclic mood swings, as well as the clues obtained from the horizontal
gaze nystagmus test—provided a substantial basis to support the magistrate’s
determination of probable cause that appellant had been driving while intoxicated.
Defendant’s admission that he had one alcoholic drink prior to the collision also
supported this determination.       Considering the totality of the circumstances
recounted within the four corners of the affidavit in this case, the magistrate had a
substantial basis for concluding probable cause existed.

C.    Franks v. Delaware

      Appellant argues that the affidavit failed to state probable cause because the
affiant omitted any reference to the prior warrantless blood draws. Appellant asserts
that the affidavit used to obtain the search warrant was therefore misleading, and the
evidence obtained in the third blood draw should have been suppressed under Franks
v. Delaware, 438 U.S. 154 (1978). Appellant contends that once an adequate sample
of blood had been obtained, the State could not seek a warrant to obtain more blood
without informing the magistrate that the blood had already been obtained and
providing some reason that an additional blood sample would provide additional
material evidence. Appellant asserts that allowing a warrant for the State to take

                                           6
another blood draw where no facts showed the previous blood draw was inadequate
or ineffective is unreasonable per se under the Texas Code of Criminal Procedure.

      In Franks v. Delaware, the Supreme Court of the United States held that if
there is an affirmative misrepresentation in the warrant affidavit and the
misrepresentation is material and necessary to establishing probable cause, then the
warrant is invalid under the Fourth Amendment. 438 U.S. at 155–56; Aguirre v.
State, 490 S.W.3d 102, 109 (Tex. App.—Houston [14th Dist.] 2016, no pet.). This
court has extended this ruling to material omissions. Melton v. State, 750 S.W.2d
281, 284 (Tex. App.—Houston [14th Dist.] 1988, no pet.) (“Such omissions are
treated essentially the same as claims of material misstatements.”).

      Under Franks, if the defendant makes a substantial preliminary showing that
a warrant affidavit contains a false statement or omission made knowingly,
intentionally, or with reckless disregard for the truth and that statement is necessary
to the finding of probable cause, a hearing should be held at the defendant’s request.
438 U.S. at 155–56; Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007). At
the hearing, the defendant bears the burden by a preponderance of the evidence to
establish that a false statement was made—or a true statement was omitted—
intentionally, knowingly, or with reckless disregard for the truth. See Franks, 438
U.S. at 155–56; Melton, 750 S.W.2d at 284. If the defendant carries that burden,
then the false statement is removed from the affidavit, or the true statement is added,
and the reviewing court must determine whether probable cause for the warrant still
exists. Melton, 750 S.W.2d at 284. If it does not, then the warrant must be voided
and the evidence seized pursuant to the search must be suppressed. Id. (citing United
States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980)).

      Because we conclude the fact omitted was immaterial to the magistrate’s
probable-cause determination, we need not determine whether Perales’s omission

                                          7
was made intentionally, knowingly, or with reckless disregard for the truth. See Tex.
R. App. P. 47.1.2 Appellant has not cited, nor have we found, any case or statute
requiring that an affidavit in support of a warrant for a subsequent blood sample
must inform the magistrate of the prior blood draw and provide reasons why an
additional blood sample would provide additional material evidence.                     Further,
appellant cites no case or statute, nor have we found any, requiring that an affidavit
in support of a warrant for a subsequent blood sample must allege facts showing the
previous blood draw was inadequate or ineffective. We know of no authority
instructing that the failure to include this information in an affidavit should
invalidate a magistrate’s determination of probable cause. The magistrate needed
simply to determine whether there was a “fair probability” that evidence of an
offense, i.e., driving while intoxicated, would be found in appellant’s blood when
the warrant issued.

       The totality of the circumstances in the four corners of this affidavit shows
that there was, at the very least, a “fair probability” that evidence of intoxication
would be found in appellant’s blood when the warrant issued. See Jordan, 342
S.W.3d at 568–69; Flores, 319 S.W.3d at 702; see also Gates, 462 U.S. at 238. Even
assuming Perales excluded appellant’s prior blood draw from his probable-cause
affidavit intentionally, knowingly, or with reckless disregard for the truth, we cannot
conclude that inclusion of appellant’s prior blood draws in the affidavit would have
defeated a determination of probable cause for the warrant. Cf. Renteria v. State,
206 S.W.3d 689, 703–04 (Tex. Crim. App. 2006) (“assuming that Franks applies to
omissions, the magistrate would have had probable cause to issue the warrant even
with the inclusion of information” that prior search of van did not yield any


       2
         For the same reason, we need not address appellant’s argument that the State violated the
separation of powers between the executive and judicial branches of government.

                                                8
evidence).

      Probable cause to support a warrant is reviewed under a totality-of-the-
circumstances analysis. State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App.
2012). “Probable cause exists when, under the totality of the circumstances, there is
a ‘fair probability’ that contraband or evidence of a crime will be found at the
specified location.” Id. Here, the affidavit established that appellant had been
drinking prior to the collision, hit another vehicle, smelled of alcohol, had slurred
speech, and failed the horizontal gaze nystagmus test conducted on him shortly after
the collision. The fact that appellant had previously had his blood drawn does not
disprove probable cause. As such, the fact that appellant’s blood already had been
drawn was not material to the magistrate’s determination of probable cause.

D.    Schmerber v. California

      Appellant argues in his brief that the magistrate also should have considered
“whether there [was] probable cause that the search to be performed would be
reasonable under the totality of the circumstances — what Schmerber [v. California]
referred to as whether the intrusion was justified in the circumstances.” Appellant
asserts, “This must necessarily include the circumstance that the relevant blood
sample already in possession of the police was all the evidence useful for their
purposes.” At oral argument, appellant argued that whether a search is reasonable
and justified under the circumstances is an element of probable cause under
Schmerber. We disagree.

      Schmerber v. California is distinguishable from appellant’s case. Schmerber
did not involve review of a magistrate’s probable-cause determination.           See
generally 384 U.S. 757 (1966). In Schmerber, the Supreme Court of the United
States addressed the constitutionality of warrantless blood draws conducted for law-
enforcement purposes under the Fourth Amendment. See id. at 759, 766–72. This
                                         9
case does not involve the constitutionality of a warrantless blood draw.

      Even if Schmerber applied to the circumstances of this case (it does not),
Schmerber does not support appellant’s argument. Nothing in Schmerber suggests
that a probable-cause determination includes a reasonableness determination. See
generally id. The Court’s analysis of probable cause in Schmerber was separate and
distinct from its analysis of reasonableness. See id. at 768–72.

      The Schmerber Court identified a two-part analysis for determining the
legality of a warrantless blood draw: “(1) ‘whether the police were justified in
requiring [the defendant] to submit to a blood test;’ and, (2) ‘whether the means and
procedures employed in taking [the defendant’s] blood respected relevant Fourth
Amendment standards of reasonableness.’” State v. Johnston, 336 S.W.3d 649, 658
(Tex. Crim. App. 2011) (quoting Schmerber, 384 U.S. at 768). The Court then
evaluated whether the test was “justified” and whether it was “reasonable” as
independent components of the test. See Schmerber, 384 U.S. at 768–72.

      In determining whether the search was “justified,” the Court considered two
separate inquiries: the existence of probable cause and the existence of exigent
circumstances. Id. at 768–71. First, the Court determined probable cause existed
based on the officer’s observation of signs of intoxication:

      Here, there was plainly probable cause for the officer to arrest petitioner
      and charge him with driving an automobile while under the influence
      of intoxicating liquor. The police officer who arrived at the scene
      shortly after the accident smelled liquor on petitioner’s breath, and
      testified that petitioner’s eyes were ‘bloodshot, watery, sort of a glassy
      appearance.’ The officer saw petitioner again at the hospital, within
      two hours of the accident. There he noticed similar symptoms of
      drunkenness. He thereupon informed petitioner ‘that he was under
      arrest and that he was entitled to the services of an attorney, and that he
      could remain silent, and that anything that he told me would be used
      against him in evidence.’

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Id. at 768–69. The Court acknowledged, however, that probable cause alone would
not satisfy the “justified” prong of the test:

      Although the facts which established probable cause to arrest in this
      case also suggested the required relevance and likely success of a test
      of petitioner’s blood for alcohol, the question remains whether the
      arresting officer was permitted to draw these inferences himself, or was
      required instead to procure a warrant before proceeding with the test.
Id. at 770. The Court determined that the warrantless search of the defendant’s blood
was “justified” because in addition probable cause, exigent circumstances existed
which permitted an exception to the warrant requirement. Id. at 770–71. But see
Missouri v. McNeely, 569 U.S. 141, 165 (2013) (holding natural dissipation of
alcohol in bloodstream did not create per se exigency justifying warrantless blood
draw).   The Court then separately addressed the second prong of the test—
reasonableness. Schmerber, 384 U.S. at 771–72. At no point in the opinion did the
Court address reasonableness as a component of, or in relation to, probable cause.
We reject appellant’s argument that a reasonableness analysis should have been
played a part in the magistrate’s probable-cause determination or that it should play
a part in our Franks analysis.

E.    Reasonableness

      Even if reasonableness of a search were relevant to probable cause or a Franks
analysis, we are not persuaded by appellant’s arguments that the subsequent blood
draw was per se unreasonable.           Appellant argues that under Schmerber, a
reasonableness determination should have included “the circumstance that the
relevant blood sample already in possession of the police was all the evidence useful
for their purposes.” Schmerber does not support this contention. The reasonableness
prong of the Schmerber test contains two separate inquiries: (1) whether the test
chosen (the means) was reasonable and (2) whether the test was performed in a

                                           11
reasonable manner (the procedures).                Johnston, 336 S.W.3d at 658 (citing
Schmerber, 384 U.S. at 771).3 Appellant does not argue that the test chosen in his
case was unreasonable or that the test was performed in an unreasonable manner.4
Rather, appellant argues that in every case, a subsequent search would be “per se
unreasonable” where no facts show that “the first blood draw was inadequate or
ineffective.” In support of his argument, appellant relies on the Texas Code of
Criminal Procedure.

       Appellant first cites Texas Code of Criminal Procedure article 18.01(d) to
support the proposition that subsequent search warrants require special scrutiny;
however, as appellant acknowledges, this case does not involve a subsequent
warrant.

       Appellant next references Texas Code of Criminal Procedure article 18.01(j)
as providing that magistrates may issue a search warrant to collect a blood specimen
from a person who refuses to submit to a breath or blood alcohol test. Appellant
then argues that a person who voluntarily provided a blood or breath specimen
“cannot have a warrant issued ‘for another bite at the apple,’ without some reason to
believe the original blood draw was in some way defective[,]” and “the fact that the
first seizure was not consensual should not by itself affect whether a warrant may
issue for a second seizure.” Essentially, appellant argues that under Texas Code of

       3
         In Winston v. Lee, 470 U.S. 753 (1985), the Supreme Court of the United States further
explicated Schmerber’s reasonableness prong. The Winston Court pointed out that in Schmerber,
the Court considered “the extent to which the procedure may threaten the safety or health of the
individual” and “the extent of intrusion upon the individual’s dignitary interests in personal privacy
and bodily integrity.” Id. at 761–62. The Court also noted that these interests must be weighed
against “the community’s interest in fairly and accurately determining guilt or innocence.” Id. at
762.
       4
         We do not hold that repeated blood tests could never be unreasonable. In certain
circumstances, the extent of the intrusion upon the individual’s dignitary interests in personal
privacy and bodily integrity may outweigh the community’s interest in fairly and accurately
determining guilt or innocence. See Winston, 470 U.S. at 762.

                                                 12
Criminal Procedure article 18.01(j), magistrates may issue search warrants to collect
a blood specimen from a person who refuses to submit to a breath or blood alcohol
test unless the person’s blood has already been taken without a warrant. We reject
appellant’s attempt to inject this additional language, which does not appear in
article 18.01(j).

       We hold that omitting mention of the prior blood draws in the probable-cause
affidavit supporting the search warrant for appellant’s blood did not invalidate the
warrant.

       We overrule appellant’s issue.

                                  III.    CONCLUSION

       We affirm the judgment of the trial court.




                                         /s/    Marc W. Brown
                                                Justice



Panel consists of Justices Busby, Brown, and Jewell.
Publish — TEX. R. APP. P. 47.2(b).




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