                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00030-CR


SAMUEL DAVID FARHAT                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE


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      FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

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                                   OPINION
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                                I. INTRODUCTION

      Appellant Samuel David Farhat appeals his conviction for the Class B

misdemeanor offense of driving while intoxicated (DWI). In a single point, Farhat

argues that the trial court erred by denying his motion to suppress blood

evidence seized with a warrant. Farhat argues that the affidavit underlying the

search warrant is insufficient because it did not provide the magistrate with a
substantial basis for concluding that probable cause existed that he was

intoxicated. We will reverse and remand.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      On January 11, 2008, at approximately 12:50 a.m., Corporal Patrick Finley

of the Highland Village Police Department was traveling eastbound on Justin

Road in Denton County, Texas, when he observed Farhat‘s vehicle traveling in

the opposite direction at ten miles per hour below the posted speed limit of forty

miles per hour.    Corporal Finley made a u-turn, followed Farhat‘s vehicle for

approximately one-half mile, and observed the vehicle weave from side to side

and signal a right-hand turn before turning left into a KFC restaurant‘s parking lot.

The officer initiated a stop in the KFC parking lot.

      When Corporal Finley approached the driver‘s window, he noticed two pill

bottles in the center console. Farhat refused to perform any sobriety tests, so

Corporal Finley placed him under arrest. Corporal Finley then prepared a sworn

affidavit for a blood-draw search warrant, and the magistrate subsequently

signed a search warrant based on the affidavit.

      The affidavit in support of the blood warrant states, in total,

      On 01-11-2008 at approximately 0050 hours, I, Cpl. Finley #516 was
      driving eastbound in the 1900 block of Justin road and visually
      observed a vehicle turning from Sellmeyer onto Justin road. I turned
      around at the light and started westbound when I could see a vehicle
      driving very slow approximately 30 miles an hour in a 40 mile per
      hour zone. I pulled my patrol vehicle behind the vehicle a silver
      BMW with dealer plates. The vehicle was weaving from sided [sic]
      to side and continued for about a half a mile in the left lane. As the
      vehicle approached the KFC parking lot the vehicle turned on the


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      right turn signal and crossed over the left lane into the parking lot. I
      activated my overhead lights and conducted a traffic stop in the
      parking lot at 2180 Justin road KFC. I noticed two pill bottles in the
      center console and asked where the driver later identified as Farhat,
      Samuel David, A/M DOB 05-04-1966 the defendant [sic]. I asked
      the defendant to step out of the vehicle to check to see if he was ok
      to drive. The defendant refused to do any road side test and was
      placed in double locked properly spaced handcuffs.

      Farhat was charged by information with DWI. He filed a pretrial motion to

suppress the blood evidence, alleging that the affidavit supporting the search

warrant was legally insufficient. After a hearing, the trial court denied Farhat‘s

motion. Farhat pleaded no contest. The trial court sentenced him to 160 days‘

confinement, probated for eighteen months, and a fine of $600.

      Farhat requested that the trial court make findings of fact and conclusions

of law concerning its suppression ruling; the trial court entered the following:

                               FINDINGS OF FACT

      At about 12:50AM on January 11, 2009, Corporal Patrick Finley of
      the City of Highland Village Police Department was [traveling]
      westbound in the 1900 block of Justin Road in Denton County,
      Texas when he observed a vehicle traveling at 30 MPH in a 40 MPH
      zone. He further observed that the vehicle weaving from side to side
      and travelled in the left lane of traffic (a reasonable interpretation
      being that he was driving in the wrong lane, to wit: the oncoming
      lane) for approximately one-half a mile. The Officer stopped the
      vehicle, identified as a BMW with dealer plates, in a parking lot at
      2180 Justin Road. Upon contacting the driver, the Officer observed
      two pill bottles in the console, and asked the driver, identified as
      Samuel David Farhat to step out of the vehicle. The driver refused
      to participate in roadside tests to determine intoxication. The Officer,
      suspecting the driver may be intoxicated, based on the erratic driving
      behavior, the pills in the console, and the Officer‘s opportunity to
      personally observe the driver, subsequently placed the driver under
      arrest. Corporal Finley further sought and obtained a search warrant
      for the driver‘s blood from a qualified magistrate.


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                            CONCLUSIONS OF LAW

      Viewing the issuing magistrate‘s determination in a reasonable,
      commonsense, and realistic manner, the four corners of the affidavit
      provided sufficient probable cause to issue a warrant for seizure of
      the defendant‘s blood.

                             III. MOTION TO SUPPRESS

      In his sole point, Farhat argues that the trial court erred by denying his

motion to suppress because Corporal Finley‘s affidavit did not provide a

substantial basis for the magistrate to conclude that probable cause existed to

support the issuance of the blood-draw search warrant.

          A. Standard of Review and Law on Search Warrant Affidavits

      The police may obtain a defendant‘s blood for a DWI investigation through

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

see Tex. Code Crim. Proc. Ann. art. 18.01(j) (Vernon Supp. 2010); State v.

Johnston, 305 S.W.3d 746, 750 (Tex. App.—Fort Worth 2009, pet. stricken). A

search warrant cannot issue unless it is based on probable cause as determined

from the four corners of an affidavit. U.S. Const. amend. IV; Tex. Const. art. I, §

9; Tex. Code Crim. Proc. Ann. art. 18.01(b) (―A sworn affidavit . . . establishing

probable cause shall be filed in every instance in which a search warrant is

requested.‖); Nichols v. State, 877 S.W.2d 494, 497 (Tex. App.—Fort Worth

1994, pet. ref‘d).

      Under the Fourth Amendment and the Texas constitution, an affidavit

supporting a search warrant is sufficient if, from the totality of the circumstances



                                         4
reflected in the affidavit, the magistrate was provided with a substantial basis for

concluding that probable cause existed. Swearingen v. State, 143 S.W.3d 808,

810–11 (Tex. Crim. App. 2004); Nichols, 877 S.W.2d at 497. Article 18.01(c)

requires an affidavit to set forth facts establishing that (1) a specific offense has

been committed, (2) the item to be seized constitutes evidence of the offense or

evidence that a particular person committed the offense, and (3) the item is

located at or on the person, place, or thing to be searched. Tex. Code Crim.

Proc. Ann. art. 18.01(c); see Tolentino v. State, 638 S.W.2d 499, 501 (Tex. Crim.

App. [Panel Op.] 1982). Probable cause for a search warrant exists if, under the

totality of the circumstances presented to the magistrate in an affidavit, there is at

least a ―‗fair probability‘‖ or ―‗substantial chance‘‖ that contraband or evidence of

a crime will be found at the specified location. Flores v. State, 319 S.W.3d 697,

702 (Tex. Crim. App. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 238, 257

n.13, 103 S. Ct. 2317, 2332, 2342 n.13 (1983)).          The affidavit must contain

―sufficient information‖ to allow the issuing magistrate to determine probable

cause because the magistrate‘s action ―cannot be a mere ratification of the bare

conclusions of others.‖ Gates, 462 U.S. at 239, 103 S. Ct. at 2333. In order to

ensure that such an abdication of the magistrate‘s duty does not occur, courts

are to ―conscientiously review the sufficiency of affidavits on which warrants are

issued.‖ Id.

      When reviewing a magistrate‘s decision to issue a warrant, we apply a

deferential standard in keeping with the constitutional preference for a warrant.


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Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007); Swearingen, 143

S.W.3d at 810–11; Emenhiser v. State, 196 S.W.3d 915, 924–25 (Tex. App.—

Fort Worth 2006, pet. ref‘d). No magical formula exists for determining whether

an affidavit provides a substantial basis for a magistrate‘s probable cause

determination. Tolentino, 638 S.W.2d at 501. Instead, when a court reviews an

issuing magistrate‘s determination, the court should interpret the affidavit in a

commonsense and realistic manner, recognizing that the magistrate may draw

reasonable inferences. See Rodriguez, 232 S.W.3d at 61 (―When in doubt, we

defer to all reasonable inferences that the magistrate could have made.‖); see

also Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006); Nichols, 877

S.W.2d at 498.    Nevertheless, a magistrate should not read into an affidavit

material information that does not otherwise appear on its face. Cassias v. State,

719 S.W.2d 585, 590 (Tex. Crim. App. 1986); State v. Jordan, 315 S.W.3d 660,

664 (Tex. App.—Austin 2010, pet. granted). A magistrate should not have to

resort so much to inferences and ―common sense‖ conclusions that skirt the

boundaries of what constitutes a substantial basis; when too many inferences

must be drawn, the result is a tenuous rather than a substantial basis for the

issuance of a warrant. Davis, 202 S.W.3d at 157.

                        B. Affidavit Did Not Provide
       Substantial Basis for Concluding that Probable Cause Existed

      The four corners of Corporal Finley‘s affidavit demonstrate that:

      (1) Farhat was driving thirty miles per hour in a forty-mile-per-hour zone at
          approximately 12:50 a.m.;


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      (2) he was weaving from side to side;

      (3) he continued in the left lane for about one-half mile;

      (4) he turned on his right-turn signal but turned left into a KFC restaurant‘s
          parking lot;

      (5) the officer, upon stopping Farhat, saw two pill bottles in the center
          console of Farhat‘s vehicle;

      (6) Farhat refused field sobriety tests; and

      (7) Corporal Finley believed that Farhat had committed DWI.

      For the reasons set forth below, we hold that the affidavit does not provide

the magistrate with a substantial basis to conclude that probable cause existed.

See Swearingen, 143 S.W.3d at 810–11; Tolentino, 638 S.W.2d at 501. In other

words, we hold that the meager facts contained within the four corners of the

affidavit did not provide the magistrate with a substantial basis to conclude that

there was a fair probability or substantial chance that Farhat had committed the

offense of DWI or that evidence of intoxication would be found in Farhat‘s blood.

See Tex. Code Crim. Proc. Ann. art. 18.01(c)(1); Flores, 319 S.W.3d at 702

(quoting Gates, 462 U.S. at 238, 257 n.13, 103 S. Ct. at 2332, 2342 n.13).

      The trial court‘s findings of fact state that Corporal Finley suspected Farhat

of DWI ―based on the erratic driving behavior, the pills in the console, and the

Officer’s opportunity to personally observe the driver.‖ [Emphasis added.] But

the affidavit contains no mention of what those personal observations were. Cf.,

e.g., Cotton v. State, 686 S.W.2d 140, 142 (Tex. Crim. App. 1985) (evidence of

intoxication may include the odor of alcohol on one‘s breath or body, bloodshot


                                         7
eyes, slurred speech, unsteady balance, and a staggered gait); Campos v. State,

623 S.W.2d 657, 660 (Tex. Crim. App. 1981) (smell of beer on defendant and

defendant‘s ―thick-tongued‖ speech and unsteadiness on his feet); Stratton v.

State, No. 09-09-00220-CR, 2010 WL 2696158, at *2 (Tex. App.—Beaumont

July 7, 2010, no pet.) (mem. op., not designated for publication) (defendant had

strong odor of alcohol on his breath, had red, glassy eyes, was heavy footed, and

was thick-tongued); State v. Dugas, 296 S.W.3d 112, 117 (Tex. App.—Houston

[14th Dist.] 2009, pet. ref‘d) (defendant smelled of alcohol, had slurred speech,

was unsteady on his feet, admitted to consuming alcohol, failed multiple field

sobriety tests, and became dazed and confused); Martin v. State, No. 02-08-

00128-CR, 2009 WL 2414294, at *3 (Tex. App.—Fort Worth August 6, 2009, no

pet.) (mem. op., not designated for publication) (defendant was involved in

automobile crash, fled the scene, walked and talked in a manner that led officers

to believe he was very intoxicated, and was combative toward officers).             ―It is

one thing to draw reasonable inferences from information clearly set forth within

the four corners of the affidavit . . . [but] it is quite another matter to read material

information into an affidavit that does not otherwise appear on its face.‖ Cassias,

719 S.W.2d at 590 (citation omitted); Jordan, 315 S.W.3d at 664. Because the

affidavit is totally devoid of any of the officer‘s specific personal observations of

Farhat, the affidavit contains no facts within its four corners from which the

magistrate could have reasonably inferred from Farhat‘s demeanor, behavior, or

appearance that there was fair probability or substantial chance that Farhat had


                                           8
committed the offense of DWI or that evidence of intoxication would be found in

Farhat‘s blood. See Rodriguez, 232 S.W.3d at 61; cf. Flores, 319 S.W.3d at 702

(quoting Gates, 462 U.S. at 238, 257 n.13, 103 S. Ct. at 2332, 2342 n.13). The

magistrate‘s probable cause determination cannot be a mere ratification of

Corporal Finley‘s conclusions. See Gates, 462 U.S. at 239, 103 S. Ct. at 2333.

      And contrary to the trial court‘s finding that the officer saw ―pills in the

console‖ of Farhat‘s vehicle, the affidavit states only that the officer saw two pill

bottles in the center console. The affidavit does not state that the bottles actually

contained pills, and even if a reasonable inference could be drawn that the

bottles did contain pills, the affidavit was silent as to the type of pill bottles,

whether they were prescription or over-the-counter medicine bottles, whether

Farhat admitted to consuming pills from the bottles, or whether Farhat‘s

demeanor or appearance suggested that he had consumed them.                   Cf., e.g.,

Bailey v. State, No. 10-06-00297-CR, 2008 WL 2687094, at *2 (Tex. App.—

Waco July 9, 2008, no pet.) (mem. op., not designated for publication) (holding

probable cause established when defendant wrecked her car into a ditch, had

several prescription pill bottles in the car, admitted to taking three pills, and failed

three sobriety tests); Dennis v. State, No. 08-01-00207-CR, 2002 WL 1301577,

at *4 (Tex. App.—El Paso June 13, 2002, no pet.) (not designated for publication)

(holding that sufficient evidence of intoxication existed when appellant‘s speech

was slurred, balance was unsteady, and reactions were slow, and when fifteen to

twenty prescription pill bottles were found in his car). The naked assertion of


                                           9
―two pill bottles,‖ without other facts and circumstances pointing to intoxication,

cannot support an inference that the bottles contained intoxicating pills or that

Farhat had consumed them, causing intoxication. See Jordan, 315 S.W.3d at

664 (holding that even though affidavit supported conclusion that defendant had

been driving while intoxicated on some date, affidavit‘s missing date left no fact

from which magistrate could infer date).

      Farhat‘s driving behavior—driving ten miles per hour below the forty miles-

per-hour speed limit, weaving from side to side, and turning on his right-turn

signal before turning the opposite direction into the parking lot—and his refusal to

perform field sobriety tests are part of the totality of the circumstances to

consider in determining whether the magistrate had a substantial basis for

concluding probable cause existed. See, e.g., Maxwell v. State, 253 S.W.3d

309, 314 (Tex. App.—Fort Worth 2008, pet. ref‘d) (considering defendant‘s

refusal to perform field sobriety tests, weaving within lane, failing to use turn

signal, and speeding as part of totality of circumstances for probable cause to

arrest); State v. Garrett, 22 S.W.3d 650, 654–55 (Tex. App.—Austin 2000, no

pet.) (considering defendant‘s unlawful and erratic driving behavior and refusal to

perform field sobriety tests, along with other facts, in determining that officers had

probable cause to arrest). We cannot agree with the trial court‘s finding that a

reasonable interpretation of Corporal Finley‘s statement in his affidavit that

Farhat ―continued for about a half a mile in the left lane‖ was that Farhat ―was

driving in the wrong lane, to wit: the oncoming traffic.‖ Why would an officer


                                         10
follow a vehicle that is driving into oncoming traffic for half a mile without

immediately turning on his patrol vehicle‘s overhead lights and executing a stop?

The affidavit clearly demonstrates that Corporal Finley did not activate his

overhead lights during that one-half mile; he waited until after Farhat turned into

the KFC parking lot to initiate a stop.       Thus, the magistrate could not have

reasonably inferred from or read into the affidavit that ―continu[ing] for about a

half a mile in the left lane‖ meant ―driving in the wrong lane, to wit: the oncoming

traffic.‖ See Davis, 202 S.W.3d at 157; Cassias, 719 S.W.2d at 590.

      The remaining facts contained in the affidavit show that Farhat was driving

ten miles below the speed limit shortly before 1:00 a.m., that he ―was weaving

from sided [sic] to side,‖ that he turned on his right-turn signal before turning the

opposite direction into the parking lot, and that he refused field sobriety tests.

We do not know from the affidavit the extent of Farhat‘s weaving or whether he

was weaving outside of his lane or into oncoming traffic nor is it reasonable to

infer such facts.   Cf., e.g., Hernandez v. State, 983 S.W.2d 867, 870 (Tex.

App.—Austin 1998, pet. ref‘d) (holding that defendant‘s slow swerve into another

same-direction lane did not give rise to lower standard of reasonable suspicion to

stop for suspicion of DWI); State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.—

Waco 1998, pet. ref‘d) (―Although mere weaving in one‘s own lane of traffic can

justify an investigatory stop when that weaving is erratic, unsafe, or tends to

indicate intoxication or other criminal activity, there is nothing in the record to

show that Hill believed any of the above to be the case.‖). This case is about


                                         11
probable cause for a blood draw, not whether Corporal Finley had reasonable

suspicion to stop Farhat, and we cannot see how the facts contained within the

affidavit, and reasonable inferences therefrom, establish that there was a fair

probability or substantial chance that evidence of intoxication would be found in

Farhat‘s blood. Cf. Flores, 319 S.W.3d at 702 (quoting Gates, 462 U.S. at 238,

257 n.13, 103 S. Ct. at 2332, 2342 n.13). Too many inferences must be drawn

and too many facts must be read into the affidavit in this case, which result in at

most ―a tenuous rather than a substantial basis‖ for the issuance of a warrant.

Davis, 202 S.W.3d at 157; see Cassias, 719 S.W.2d at 590.

      The State relies heavily on Rodriguez to argue that the combined logical

force of the facts actually contained in Corporal Finley‘s affidavit substantiates

the probable cause determination of the magistrate.        See 232 S.W.3d at 64

(holding that the only issue was whether the facts actually contained in the

affidavit were sufficient to establish a fair probability that evidence of a crime

would be found). However, Rodriguez turned on two simple and reasonable

inferences that did not distort common sense or require reading additional facts

into the affidavit. See id. (explaining that magistrate could infer (1) that package

of cocaine found in backseat of car belonging to appellant‘s uncle was the same

package that police saw appellant‘s uncle take from garage and throw in the

backseat and (2) that, based on this fact, more drugs were located in that

garage). In the instant case, the only way to make inferences that would support

a finding that a substantial basis existed to support a probable cause


                                        12
determination is to read additional facts into the affidavit and to then draw

inferences from those additional facts. We recognize that affidavits are often

drafted by nonlawyers, in the midst and haste of a criminal investigation, but that

does not excuse the affiant from the requirement that the facts set forth in the

four corners of the affidavit must show that there is probable cause to issue a

search warrant. See id. at 63–64.

      Based on the facts contained within the four corners of the affidavit and

any reasonable inferences therefrom, according deference to the magistrate‘s

probable cause determination, and conscientiously reviewing the totality of the

circumstances set forth in the affidavit, we hold that the magistrate did not have a

substantial basis for concluding that there was a fair probability or substantial

chance that Farhat had committed the offense of DWI or that evidence of

intoxication would be found in Farhat‘s blood. See Tex. Code Crim. Proc. Ann.

art. 18.01(c); Gates, 462 U.S. at 239, 103 S. Ct. at 2333; Rodriguez, 232 S.W.3d

at 60; Swearingen, 143 S.W.3d at 810–11; Tolentino, 638 S.W.2d at 501. That

is, focusing on the combined logical force of the facts that are contained in the

affidavit and the reasonable inferences therefrom, the affidavit did not provide the

magistrate with a substantial basis for concluding that probable cause existed.

See Tex. Code Crim. Proc. Ann. art. 18.01(c); Tolentino, 638 S.W.2d at 501.

Accordingly, we hold that the trial court erred by denying Farhat‘s motion to

suppress.




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                               C. Harm Analysis

      Having found error, we must conduct a harm analysis to determine

whether the error calls for reversal of the judgment.     Tex. R. App. P. 44.2.

Because the error involved is of constitutional magnitude, we apply rule 44.2(a)

and reverse unless we determine beyond a reasonable doubt that the error did

not contribute to Farhat‘s conviction or punishment. See Tex. R. App. P. 44.2(a);

Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001). The question is

whether the trial court‘s error in denying Farhat‘s motion to suppress was

harmless beyond a reasonable doubt. See Williams v. State, 958 S.W.2d 186,

194 (Tex. Crim. App. 1997). In applying the ―harmless error‖ test, our primary

question is whether there is a ―reasonable possibility‖ that the error might have

contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.

App. 1998) (op. on reh‘g), cert. denied, 526 U.S. 1070 (1999).

      The only evidence that Farhat was intoxicated came from the results of a

blood test, obtained in violation of Farhat‘s constitutional protection against

unreasonable search and seizure. We are thus unable to determine beyond a

reasonable doubt that the trial court‘s error in denying Farhat‘s motion to

suppress did not contribute to Farhat‘s conviction or punishment for DWI. See

Williams, 958 S.W.2d at 195. We sustain Farhat‘s sole point.




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                                 IV. CONCLUSION

      Having sustained Farhat‘s sole point, we reverse the trial court‘s order

denying his motion to suppress and remand to the trial court for further

proceedings consistent with this opinion.




                                                  SUE WALKER
                                                  JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

PUBLISH

DELIVERED: January 6, 2011




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