      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00530-CR




                                  The State of Texas, Appellant

                                                 v.

                                       Jed Jordan, Appellee



               FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
             NO. C-1-CR-08-210341, HONORABLE JAN BRELAND, JUDGE PRESIDING



                                           OPINION


                 The State appeals an order suppressing evidence in a prosecution for driving while

intoxicated. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 2009). On June 6, 2008,

a search warrant was issued authorizing the taking of a sample of appellee Jed Jordan’s blood

to test for alcohol concentration. See id. art. 18.02(10) (West 2005); see also Gentry v. State,

640 S.W.2d 899, 902 (Tex. Crim. App. 1982) (holding that blood is item of evidence for which

search warrant may issue); Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002) (holding

that implied consent law does not prohibit drawing blood pursuant to search warrant). Jordan moved

to suppress the test result on the ground that the search warrant affidavit failed to state probable

cause. After a hearing consisting of arguments by counsel, the motion was granted. We affirm

the order.
                A warrant to search for and seize items constituting evidence of an offense or tending

to show that a particular person committed an offense must be supported by an affidavit containing

facts sufficient to give the issuing magistrate probable cause to believe that: (1) a specific offense

has been committed, (2) the items to be searched for and seized constitute evidence of that offense

or that a particular person committed that offense, and (3) the items are located at or on the particular

person, place, or thing to be searched. Tex. Code Crim. Proc. Ann. art. 18.01(c) (West Supp. 2009).

A search warrant affidavit must be interpreted in a common sense and realistic manner, recognizing

that reasonable inferences may be drawn from the affidavit. Hespeth v. State, 249 S.W.3d 732, 737

(Tex. App.—Austin 2008, pet. ref’d). A reviewing court—which means in this case both the county

court at law and this Court—must give the issuing magistrate’s determination of probable cause great

deference, and the decision to issue the warrant will be sustained if the magistrate had a substantial

basis for concluding that probable cause was shown. Illinois v. Gates, 462 U.S. 213, 236-37 (1983);

Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004); State v. Davila, 169 S.W.3d 735,

738 (Tex. App.—Austin 2005, no pet.).

                The search warrant affidavit in this case was prepared by Sergeant K. Suitt of the

Austin Police Department. The affidavit states, in pertinent part:


                I am a peace officer of the State of Texas, to wit: a Police Officer for the City
        of Austin in Travis County, Texas, and I have good reason to believe that heretofore,
        on or about the 6th day of June, 2008 in the County of Travis and State of Texas,
        Jed Jordan White/Male born 06-14-1984, did then and there commit an offense
        relating to the operation of a motor vehicle while intoxicated namely:

                   DRIVING WHILE INTOXICATED—(OFFENSE LEVEL A)

        Affiant has probable cause for said belief by reason of the following facts:


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       My belief of the forgoing statement is based upon information provided to me
       by Officer R. Gilbert an officer working for Austin PD who personally observed
       such offense.

       Officer M. Forshee observed the aforesaid accused driving 2006 SCHW motorcycle
       upon 500 blk East 7th Street, a public place in Austin, Travis County, TX

       Officer M. Forshee stopped the said accused for the following reasons; drove wrong
       way on a one way (westbound on E 7th which is eastbound only).

       ...

       Officer R. Gilbert observed the said accused at the scene of said offense and formed
       the opinion the said accused was intoxicated based upon the following conditions
       exhibited by the said accused[:]

       [The affidavit describes Jordan’s general appearance and behavior and the results of
       the standard field sobriety tests, all of which were indicative of intoxication. It states
       that Jordan was not in possession of alcohol, but that he admitted drinking two
       bottles of beer. It also states that Jordan has a previous conviction in Harris County
       for driving while intoxicated.]

       Officer R. Gilbert has seen intoxicated persons on many occasion in the past. Based
       on all of the above and his experience and training, Officer R. Gilbert determined that
       the suspect did not have the normal use of mental or physical faculties by reason of
       the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a
       combination of two or more of those substances, or any other substance into the
       body, and placed the suspect under arrest for Driving While Intoxicated. Officer R.
       Gilbert requested a sample of the suspect’s breath and/or blood, which the suspect
       refused to provide.


The affidavit goes on to state that Jordan was being held at central booking and that his blood

would constitute evidence of the driving while intoxicated offense. The affidavit was signed on

June 6, 2008, at an unspecified time. The search warrant was signed and issued by the magistrate

at 3:54 a.m. on June 6, 2008. The blood sample was drawn at 4:20 a.m. that morning.1


  1
    The State’s brief states that the blood test showed a .23 alcohol concentration, but this fact does
not appear in the record. The information alleges intoxication in terms of impairment; it does not

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               Jordan has never contended that the facts stated in the affidavit were insufficient to

give the magistrate probable cause to believe that he had been driving while intoxicated. Jordan

argued below and continues to argue, however, that because the affidavit did not state the date and

time when those facts arose, the affidavit was not sufficient to give the magistrate probable cause

to believe that Jordan’s blood would constitute evidence of his guilt at the time the warrant issued.

See Mata v. State, 46 S.W.3d 902, 909 (Tex. Crim. App. 2001) (describing how body absorbs and

eliminates alcohol). The trial court concluded that it was reasonable to infer that the facts arose on

June 6, 2008, but agreed with Jordan that the affidavit was inadequate because it did not state the

time when the critical observations were made. The State argues that because the warrant issued at

3:54 a.m. on June 6, the maximum amount of time that could have elapsed between the stop and the

issuance of the warrant was three hours and fifty-four minutes. The State urges that it was therefore

reasonable for the issuing magistrate to infer that appellant’s blood would still contain some

evidence of intoxication when the warrant issued.

               The State relies on the opinion in State v. Dugas, 296 S.W.3d 112 (Tex.

App.—Houston [14th Dist.] 2009, pet. ref’d). In that case, also a prosecution for driving while

intoxicated, the search warrant affidavit stated as a fact that the traffic offense giving rise to

the defendant’s arrest took place on March 15, 2008. Id. at 114. The search warrant was issued at

6:03 a.m. that day. Id. at 115. The court of appeals concluded that because no more than six hours

elapsed between the offense and the issuance of the warrant, “it was [not] unreasonable for the




allege intoxication per se. See Tex. Penal Code Ann. § 49.01(2) (West 2003).

                                                  4
magistrate to presume that there still would be some evidence of intoxication found in [the

defendant’s] blood when the warrant was signed.” Id. at 118.

                The State’s argument is premised on the assertion in its brief that “it is undisputed

that both the offense and the issuance of the warrant occurred on the same day, June 6.” But this fact

is disputed. Jordan has consistently argued that the affidavit did not give the magistrate a substantial

basis for concluding that he was stopped and arrested on June 6. We are compelled to agree

with Jordan.

                Suitt’s statement in his affidavit that “I have good reason to believe that heretofore,

on or about the 6th day of June, 2008 in the County of Travis and State of Texas, Jed Jordan . . . did

then and there commit” the offense of driving while intoxicated was not a statement of fact; it was

merely a statement of the officer’s belief. A police officer’s conclusion that a crime has been

committed does not give a magistrate a substantial basis for determining that probable cause exists.

See Gates, 462 U.S. at 239; Davila, 169 S.W.3d at 739-40. It is the facts giving rise to the officer’s

suspicion that are determinative, and the affidavit in this case was completely silent as to the date

and time when Jordan was stopped by Forshee and observed by Gilbert, and when Gilbert passed

on his information to Suitt. Therefore, although the facts contained in the affidavit were sufficient

to warrant the conclusion that Jordan had been driving while intoxicated on some date, the affidavit

contained no facts from which a reasonable inference could be drawn as to what that date was. In

what is a critical distinction from Dugas, the affidavit in this case did not state that the offense took

place on June 6. Nor can it be reasonably inferred that the offense occurred on June 6 from the mere




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fact that the warrant was requested that date. Thus, there is no basis for the State’s argument that

the warrant was sought less than four hours after the offense was committed.2

                The affidavit in this case is analogous to the search warrant affidavit held insufficient

in Schmidt v. State, 659 S.W.2d 420 (Tex. Crim. App. 1983). The affiant in that case, a police

officer, stated that he believed, based on information received from an informer, that the suspect

possessed cocaine on or about a certain date. Id. at 421. The affidavit failed to state, however, when

the incident described by the informer took place. Id. The court of criminal appeals held that the

facts stated in the affidavit did not give the magistrate a basis for concluding that the information was

still fresh, and thus the affidavit did not support the magistrate’s conclusion that probable cause

existed at the time the warrant was sought. Id. The opinion in Schmidt contradicts any argument

that a police officer’s statement that he believes that events occurred on or about a certain date,

without any facts to support that belief, is sufficient to support an inference that the events did occur

on that date.

                Although the officers involved in this case may well have acted promptly to

obtain the search warrant, we cannot ignore the affidavit’s silence regarding the crucial matter of

date and time. “It is one thing to draw reasonable inferences from information clearly set forth

within the four corners of an affidavit. . . . It is quite another matter to read material information into

an affidavit that does not otherwise appear on its face.” Cassias v. State, 719 S.W.2d 585, 590 (Tex.


     2
        We express no opinion as to whether the warrant would have been timely under those
circumstances. We also express no opinion as to whether a statement that the pertinent events took
place “on or about” a certain date is sufficient to warrant an inference that the events actually took
place on that date. We agree with the trial court that when an affiant is seeking a warrant to take
blood for the purpose of testing for alcohol concentration, a precise statement of the relevant times
is advisable.

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Crim. App. 1986). The magistrate could not infer that Jordan had been stopped and arrested on

June 6 merely because the warrant was being sought on June 6.

                Even under the deferential standard applied when reviewing a magistrate’s probable

cause finding, the affidavit in this case did not warrant the conclusion that Jordan’s blood would

constitute evidence of the driving while intoxicated offense because there were no facts from which

the magistrate could reasonably infer that the time that had elapsed was sufficiently short to justify

the belief that alcohol would still be in Jordan’s blood. The trial court’s order suppressing the result

of the blood test is affirmed.




                                                __________________________________________

                                                J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: June 17, 2010

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