                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-13-00146-CR
                                 ________________________

                            THE STATE OF TEXAS, APPELLANT

                                                 V.

                                  JESSE CASTRO, APPELLEE



                                On Appeal from the County Court
                                      Hale County, Texas
                  Trial Court No. 2011C-750; Honorable Bill Coleman, Presiding


                                        September 23, 2014

                                MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, the State of Texas, appeals the trial court’s order suppressing

statements and actions by Appellee, Jesse Castro, at the time of and subsequent to his

arrest for driving while intoxicated, 2nd offense.1          The State asserts the trial court

abused its discretion by (1) requiring direct evidence of a driving while intoxicated

offense rather than probable cause prior to the issuance of a search warrant and (2)

interpreting the officer’s affidavit in support of the search warrant in a hyper-technical
      1
          See TEX. PENAL CODE ANN. §§ 49.04(a) and 49.09(a) (West Supp. 2014).
manner.      We reverse the trial court’s order and remand for further proceedings

consistent with this opinion.


                                            BACKGROUND


        In November 2011, an information issued alleging Appellee operated a motor

vehicle in a public place while intoxicated by not having the normal use of mental or

physical faculties by reason of the introduction of alcohol into the body. The information

also alleged Appellee had previously been convicted of a driving while intoxicated

offense. In January 2012, Appellee filed a motion to suppress evidence related to any

statements he made to law enforcement, field sobriety tests results and all laboratory

reports related to Appellee’s blood, which was drawn pursuant to a search warrant.

Specifically, Appellee alleged his blood was seized by an invalid search without

probable cause pursuant to a probable cause affidavit that contained inaccurate

statements or falsehoods by the affiant.2 Following a hearing on Appellee’s motion to

suppress, the trial court found the affidavit in support of the search warrant contained

“errors in fact” concerning (1) whether Appellee had operated a motor vehicle in a public

place and (2) whether Appellee had performed any field sobriety tests, because those

facts were “not supported by personal observation.” Based on those findings, the trial

court granted Appellee’s motion to suppress.




        2
          Appellee’s Motion to Suppress Evidence does not contest the facts of the original encounter and
does not contend that the encounter required reasonable suspicion. An encounter is a consensual
interaction between a citizen and a police officer that does not require reasonable suspicion and does not
implicate constitutional rights. See Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d
229 (1983).

                                                    2
                         AFFIDAVIT IN SUPPORT OF SEARCH WARRANT


       The affidavit in question was offered by Officer Matt Brightbill to Magistrate Karen

Davis in Hale County. The affidavit is on a printed form3 with blanks filled in by hand

(italic portions hereinbelow). The affidavit states, in pertinent part, as follows:


       There is in HALE County, Texas, a suspect person described and located
       as follows: Castro, Jesse; . . . presently in custody at Abernathy P.D.,
       located at 811 Avenue D, Abernathy, Texas.

                                            *    *   *

       3. It is the belief of Affiant that said suspected party has possession of
       and is concealing the following property: human blood.

       Said property constitutes evidence that the offense described in paragraph
       4 below was committed and that said suspected party committed the
       offense described.

       4. It is the belief of the Affiant, and he/she [he circled] hereby charges and
       accuses that on or about the 3rd day of October, 2010, that the above
       described suspected party did then and there operate a motor vehicle in a
       public place while intoxicated by not having the normal use of mental or
       physical faculties by reason of the introduction of alcohol, controlled
       substance, drug, or a dangerous drug into the body.

       5. On the 3rd day of October, 2010, I made a traffic stop on a a (sic) Gold
       Chevy S-10 truck-2 door which was being driven by Castro, Jesse the
       same person identified in paragraph 1 above, for _____ [reason for stop
       not described]. While talking to the suspected party, I detected alcohol on
       his breath and suspect refused any field sobriety tasks. Suspect had
       glassy eyes and slurred speech.

       I then asked the suspected party to submit to certain field sobriety tests,
       and he/she [he circled] refused/agreed [refused circled]. Marc Owen
       conducted the horizontal gaze nystagmus test, and I/he/she observed
       _____ [nothing circled; nothing in affidavit filled in for horizontal gaze
       nystagmus test, walk and turn test or one-legged stand test] . . . .

       After observing the suspected party during this traffic stop and his/her [his
       circled] performance on the field sobriety tests, I determined that he/she
       [he circled] was intoxicated, and I placed him/her [him circled] under arrest
       for Driving While Intoxicated. I then transported the suspected party to
       3
         The use of form affidavits has been criticized by the Texas Court of Criminal Appeals. See
Faulkner v. State, 537 S.W.2d 742, 744 (Tex. Crim. App. 1976).
                                                3
       Hale County Jail where I requested a sample of his/her [his circled] breath
       which suspect refused to provide.

       Wherefore, Affiant asks for a search warrant that will authorize Affiant of
       his/her [his circled] agent to search the person of the suspected party for
       the property described above and seize the same as evidence that the
       offense described was committed and that suspected party committed
       said offense.

       Further, Affiant asks for issuance of an order to appropriate third parties
       directing them to assist Affiant in the execution of said warrant.

       Based upon this affidavit, Magistrate Davis issued a search warrant. The search

warrant authorized Officer Brightbill to transport Appellee to a hospital for the purpose of

a blood draw by qualified medical personnel.


       SUPPRESSION HEARING


       At the suppression hearing, Marcus Owen, an officer with specialized driving

while intoxicated training, testified that, on October 3, 2010, he was off-duty when he

stopped and approached Appellee to assist him with changing a flat tire. Appellee was

outside his pickup attempting to get a spare tire out of the truck bed. When Officer

Owen approached Appellee, he smelled alcohol.           He also observed Appellee was

stumbling, having a hard time maneuvering around the pickup, slurring his speech, had

bloodshot/watery eyes, and emitted a strong odor of alcoholic beverage from his mouth

and person. There was an open container in the driver’s compartment of the pickup.

Officer Owen asked Appellee to perform field sobriety tests and Appellee refused.


       Owen also observed Appellee’s pickup had left the roadway, travelled into an

open field and struck a tree. He testified the damage to Appellee’s windshield was

consistent with his having struck the tree. When he attempted to perform a horizontal

gaze nystagmus (HGN) test, Appellee had a hard time following the stimulus and was
                                             4
uncooperative. Owen then called for other officers to perform a driving while intoxicated

investigation, and when Officer Brightbill arrived, he informed Officer Brightbill of his

observations and interactions with Appellee.


       Officer Brightbill testified that when he arrived at the scene of the accident, no

one was present except Officer Owen and Appellee. There was no evidence to suggest

anyone but Appellee was driving the pickup or had left the scene. The pickup had been

driven over a curb and struck a tree. Officer Brightbill testified he noticed wood fibers in

the windshield. He also testified Appellee was unsteady on his feet and attempting to

retrieve his spare tire.   He detected a strong odor of alcoholic beverage on Appellee’s

breath and person. Appellee’s speech was slurred and his eyes bloodshot/watery. He

noticed there was damage to Appellee’s pickup, i.e., a baseball size hole in his front

right tire, a missing passenger side mirror and his windshield along the door frame was

completely shattered. Appellee refused to perform any field sobriety tests.           Officer

Brightbill arrested Appellee for driving while intoxicated. At jail, Appellee refused to give

a breath test. Thereafter, Officer Brightbill obtained a warrant from Magistrate Davis,

transported Appellee to a hospital and obtained a blood draw.


       Officer Brightbill testified he did not make a traffic stop and did not perform any

field sobriety tests as represented in the affidavit. He indicated the affidavit form was a

standard form and it was routine to fill out the form indicating the driver performed field

sobriety tests. He testified he tried to get Appellee in the position to perform an HGN

test but he refused.


       At the hearing’s conclusion, the trial court granted Appellee’s motion to suppress

noting there was no direct evidence or testimony Appellee operated the pickup, field

                                             5
sobriety tests were not completed and there was no traffic stop.                     The trial court

concluded the information in the affidavit was sufficiently inaccurate so as to negate

probable cause for the issuance of a search warrant.


               FINDINGS OF FACT AND CONCLUSIONS OF LAW


       In its Findings of Fact and Conclusions of Law, the trial court determined there

was insufficient probable cause to arrest Appellee for a driving while intoxicated

violation because there was no evidence Appellee had been driving the pickup. The

trial court also found that Officer Brightbill’s testimony during the suppression hearing

failed to substantiate the facts in his affidavit, i.e., he failed to state he observed

Appellee operate a motor vehicle, heard Appellee admit to driving the pickup, spoke

with someone who witnessed Appellee drive the pickup, or performed field sobriety

tests. The trial court concluded that, based on Officer Brightbill’s testimony, there were

insufficient facts to support the issuance of a search warrant to obtain a sample of

Appellee’s blood and granted Appellee’s motion to suppress. This appeal followed.


                                       STANDARD OF REVIEW


       The Fourth Amendment to the United States Constitution requires that “no

warrants shall issue, but upon probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.” U.S. CONST.      AMEND.   IV; TEX. CONST.    ART.   I, § 9. See TEX. CODE CRIM. PROC.

ANN. art. 18.01(j) (West Supp. 2014).4 Under article 18.01, a search warrant may be


       4
          Because neither party has explained to this Court how the Texas constitution provides greater
protection regarding search warrants than the United States Constitution, we examine the State’s issues
together. Hogan v. State, 329 S.W.3d 90, 93 n.5 (Tex. App.—Fort Worth 2010, no pet.).

                                                  6
obtained from a magistrate only after submission of an affidavit setting forth substantial

facts establishing probable cause. Art. 18.01(b). Probable cause exists if, under the

totality of circumstances set forth in the affidavit before the magistrate, 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. Moreno v. State, 415 S.W.3d 284, 287 (Tex. Crim. App.

2013). “The probable cause standard is not technical, it is practical, and deals with

probabilities, not hard certainties.” State v. Cantu, 785 S.W.2d 181, 183 (Tex. App.—

Houston [14th Dist.] 1990, pet. ref’d) (emphasis in original).


       The magistrate’s sole concern should be probability when making a probable

cause determination as “[the] magistrate is not bound by such finely tuned standards as

proof beyond a reasonable doubt or by a preponderance of the evidence . . . .”

Rodriquez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2003).                    The standard in

determining whether an affidavit established probable cause is “flexible and

nondemanding.” Id.


       The   magistrate may interpret the affidavit in a non-technical, common-sense

manner and may draw reasonable inferences from the facts and circumstances

contained within its four corners. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App.

2010). Although in a particular case it may not be easy to determine when an affidavit

demonstrates the existence of probable cause, the resolution of doubtful or marginal

cases in this area should be largely determined by the preference to be accorded

warrants. Id.




       In addition, the Texas Code of Criminal Procedure will be cited as “art. _____” throughout the
remainder of this memorandum opinion.
                                                 7
          Reviewing courts give great deference to a magistrate’s determination of

probable cause and consider reasonable inferences that provide a substantial basis for

the magistrate’s probable cause determination. State v. Jordan, 342 S.W.3d 565, 568-

69 (Tex. Crim. App. 2011).         There are no credibility determinations to be made in

examining the sufficiency of an affidavit to establish probable cause because our review

is confined to only the four corners of the affidavit.         State v. Five Thousand Five

Hundred Dollars, 296 S.W.3d 696, 705 (Tex. App.—El Paso 2009, no pet.).                  Thus

statements made in a suppression hearing do not factor into the probable cause

determination. State v. Hill, 299 S.W.3d 240, 243 (Tex. App.—Texarkana 2009, no

pet.).


          We conduct a de novo review and apply the same standard that the trial court

applied when it evaluated the magistrate’s decision to issue the search warrant on the

basis of the affidavit. Burke v. State, 27 S.W.3d 651, 654 (Tex. App.—Waco 2000, pet.

ref’d).    “The issue is not whether there are other facts that could have, or even should

have, been included in the affidavit; we focus on the combined logical force of facts that

are in the affidavit, not those that are omitted from the affidavit.” Rodriguez v. State,

232 S.W.3d 55, 62 (Tex. Crim. App. 2007) (quoting United States v. Ventresca, 380

U.S. 102, 108-09, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)).


                                            ANALYSIS


          While Officer Brightbill’s affidavit could have provided greater detail, in according

deference to the magistrate’s determination, we cannot agree with the trial court that it

failed to establish a substantial basis for the magistrate’s probable cause determination

that Appellee committed the offense of driving while intoxicated and that his blood could

                                                8
provide evidence of that offense.            The magistrate could reasonably infer from the

statements in the affidavit that Appellee was detained on a public roadway for a driving

while intoxicated investigation.5 The affidavit indicates Appellee was, at the least, in the

presence of a vehicle that had been operated in a public place when the investigation

was undertaken. Appellee smelled of alcoholic beverage, his eyes were glassy and his

speech was slurred. In addition, he refused to participate in any field sobriety tests, and

after he was arrested and transported to jail, he refused to give a blood sample.


        The facts contained within Officer Brightbill’s affidavit, along with the reasonable

inferences from those facts, allowed the magistrate to conclude there was probable

cause to sign the search warrant. See Hogan v. State, 329 S.W.3d 90, 96 (Tex. App.—

Fort Worth 2010, no pet.) (probable cause where appellant smelled of alcohol, his eyes

were bloodshot/watery, he was unsteady, he refused a breath specimen and there was

no one other than appellant at the scene of the accident, i.e., no evidence to create

doubt whether appellant drove the car). See also Munoz v. State, No. 02-12-00513-CR,

2013 Tex. App. LEXIS 9912, at *10-12 (Tex. App.—Fort Worth Aug. 8, 2013, no pet.)

(mem. op., not designated for publication) (probable cause where appellant refused

breath test, smelled of alcohol, had watery/dilated eyes, was unsteady and refused to

perform field sobriety tests).


        Apparently, the trial court believed that, in the absence of direct evidence

Appellee was driving the pickup, probable cause could not exist to issue the warrant.

Direct evidence of driving is unnecessary here where there are sufficient facts in the



        5
            Detention and questioning by police officers during a driving while intoxicated investigation,
without more, is not custody. Rodriguez v. State, 191 S.W.3d 428, 440 (Tex. App.—Corpus Christi 2006,
pet. ref’d).
                                                    9
affidavit for the magistrate to infer Appellee was driving. 6 See Jordan, 342 S.W.3d at

567 n.8. Furthermore, that Officer Brightbill mistakenly indicated on the affidavit that he

had executed a traffic stop and performed sobriety tests when he further indicated

Appellee refused those tests was not fatal to the issuance of the search warrant. See

Five Thousand Five Hundred Dollars, 296 S.W.3d at 705 (“A misstatement in an

affidavit that is the result of simple negligence or inadvertence, as opposed to reckless

disregard for the truth, will not make a warrant invalid.”). See also Dancy v. State, 728

S.W.2d 772, 782-83 (Tex. Crim. App. 1987) (“A misstatement, as opposed to reckless

disregard for the truth, will not render invalid the warrant based on it.”); Kelly v. State,

413 S.W.3d 164, 174 (Tex. App.—Beaumont 2012, no pet.) (“While the assumption

exists that the evidence supporting a probable cause finding is truthful, the Fourth

Amendment does not mandate that every fact in a supporting affidavit be necessarily

correct.”). Here, the trial court did not find Officer Brightbill’s statements in the affidavit

evidenced a reckless disregard for the truth as opposed to being negligent or

inadvertent.


       Moreover, that Officers Owen and Brightbill arrived at the scene after the pickup

jumped the curb, entered an open field and struck a tree rather than making a traffic

stop, as stated in the affidavit, is of no moment. This case is about probable cause for a

blood draw, not whether Officers Owen and Brightbill had reasonable suspicion to

detain Appellee.     See Hughes v. State, 334 S.W.3d 379, 387 (Tex. App.—Amarillo

2011, no pet.) (“The failure to detail the operative facts of the initial stop is not fatal to

the magistrate’s overall determination that probable cause to issue the warrant existed


       6
         The issue whether Appellee was driving the pickup may be tested at trial where the State must
prove beyond a reasonable doubt each element of a driving while intoxicated offense, including the
operation of a motor vehicle in a public place.
                                                 10
because the issue is not reasonable suspicion to detain appellant, rather it is probable

cause to authorize the issuance of a search warrant following the detention.”). 7


        For these reasons, we hold that the facts contained in Officer Brightbill’s affidavit,

along with reasonable inferences from those facts, allowed the magistrate to conclude

there was probable cause to sign the search warrant. See Rodriguez, 232 S.W.3d at

61. The affidavit and warrant complied with the United States and Texas constitutions

and article 18.01, therefore, we find the trial court erred in granting Appellee’s motion to

suppress. The State’s first issue is sustained, and its remaining issue is pretermitted.

TEX. R. APP. P. 47.1.


                                              CONCLUSION


        The trial court’s order granting Appellee’s motion to suppress is reversed and this

case is remanded for further proceedings consistent with this memorandum opinion.




                                                          Patrick A. Pirtle
                                                              Justice


Do not publish.




        7
          Despite the fact that Appellee’s motion to suppress did not question the legality of his arrest and
the issue was not litigated at the hearing on Appellee’s motion, the trial court concluded in its Conclusions
of Law that Appellee’s arrest was illegal. Based upon the facts known to Officer Brightbill at the time of
Appellee’s arrest, we find Officer Brightbill had probable cause to arrest Appellee for driving while
intoxicated on October 3, 2010.
                                                     11
