                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00399-CR


JASMYNE DONOSKY                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                     STATE


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      FROM COUNTY CRIMINAL COURT NO. 3 OF DENTON COUNTY
               TRIAL COURT NO. CR-2016-00372-C

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                           MEMORANDUM OPINION1

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      Appellant Jasmyne Donosky was arrested for driving while intoxicated

(DWI), see Tex. Pen. Code Ann. § 49.04 (West Supp. 2016), and after she

refused to provide a breath or blood sample, a magistrate issued a warrant for

the search and seizure of her blood. After the trial court denied Appellant’s

motion to suppress her blood test results, she pled guilty to DWI pursuant to a

      1
          See Tex. R. App. P. 47.4.
plea bargain, and the trial court convicted her and sentenced her to serve

150 days’ confinement in the Denton County Jail and to pay a fine of $500,

suspending imposition of confinement and placing her on community supervision

for eighteen months.

      Appellant preserved her right to appeal the denial of her motion to

suppress, and in her sole issue, she contends that the trial court erred by

denying her motion to suppress the blood test results because the affidavit in

support of the warrant was insufficient to establish probable cause. Because we

hold that the affidavit sufficiently established probable cause, we affirm the trial

court’s judgment.

                              I. Statement of Facts

A. Facts of the Offense Found in Officer Wilcock’s Affidavit

      The following information appears in the affidavit at issue. On the morning

of June 22, 2015, at 2:54 a.m., Officer Simon Wilcock, a peace officer with The

Colony Police Department, was dispatched to the scene of a minor hit-and-run

accident in The Colony, Texas, of Denton County. When he arrived, Officer

Wilcock first found a damaged Infiniti FX35 at 6745 Davidson Street and then

followed black tire markings on the concrete roadway to a silver Kia Sorrento at

5900 Arbor Hills Way.2     Inside the Sorrento, Officer Wilcock found Appellant


      2
      We take judicial notice of the facts that the two streets intersect and the
two addresses are approximately .2 miles apart. See Tex. R. Evid. 201.



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slumped over in the driver’s seat. When Officer Wilcock instructed Appellant to

unlock the door, she woke up and first attempted to unlock the door by pushing

the rearview mirror attached to the front windshield. Officer Wilcock then shined

his flashlight toward the door handle, where the button to unlock the door was

located. Appellant reached for the center console with her right hand. Officer

Wilcock again used his flashlight to highlight the area on the door where the

button to unlock the door was located. Appellant finally unlocked the car door.

      When questioned by Officer Wilcock, Appellant stated that she had been

driving, had consumed “two or three” drinks, and was driving from a friend’s

house when she hit a vehicle. She then pulled over and stopped. In response to

Officer Wilcock’s request that she “rate her own level of intoxication on a scale of

1 to 10, with 1 being completely sober and 10 being very intoxicated and about to

pass out,” Appellant rated her level of intoxication as a “three (3).”

      When Appellant exited her car at Officer Wilcock’s instruction, he noticed

that she was unsteady on her feet and swayed while walking. He also observed

several signs of intoxication, including glassy eyes, thick-tongued speech, and

the odor of an alcoholic beverage.       Officer Wilcock conducted standard field

sobriety tests during which he recorded numerous clues of intoxication, and he

ultimately concluded that Appellant failed the horizontal gaze nystagmus test, the

walk-and-turn test, and the one-leg stand test. Officer Wilcock arrested Appellant

for DWI and requested blood and breath samples from her. She refused.

      Officer Wilcock then sought a warrant to take a sample of her blood.


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B. The Warrant, the Denial of the Motion to Suppress, and the Plea Bargain

      At 6:29 a.m., about three and a half hours after Officer Wilcock was

dispatched to the accident scene, a magistrate of The Colony issued the search

warrant. The trial court denied Appellant’s motion to suppress the blood test

results, and she later pled guilty to DWI pursuant to a plea bargain. Appellant

timely appealed.

C. Findings of Fact and Conclusions of Law

      We abated and remanded this case to the trial court to prepare and issue

findings of fact and conclusions of law that Appellant requested in the trial court

regarding the denial of the motion to suppress. The trial court found as follows:

      1.     Officer Simon Wilcock of The Colony Police Department
      applied for a search warrant to obtain a sample of [Appellant’s] blood
      on or about June 22, 2015 based on his belief that [she] committed
      the offense of operating a motor vehicle while intoxicated.
       ....
      5.    . . . Officer Wilcock was dispatched to a minor accident/hit&
      run traffic accident at 2:54 AM on June 22, 2015 in the City of
      Colony, Denton County, Texas.
      6.   . . . Officer Wilcock personally observed [Appellant] at the
      scene of the accident in a silver Kia Sorrento.
      7.   . . . Officer Wilcock also observed a second vehicle, an Infiniti
      FX35, at the scene and that it had “left rear quarter panel damage.”
      ....
      13. . . . [B]ased on Officer Wilcock’s training, personal
      observations and the totality of the facts and circumstances
      contained in the affidavit he had sufficient reason to believe that
      [Appellant] was intoxicated and to place her under arrest for DWI.
      ....


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      19. . . . [A] Denton County magistrate signed the search warrant at
      6:29 AM on June 22, 2015 and . . . the verified information contained
      in the blood search warrant affidavit provided the magistrate with the
      existence of proper grounds to issue the blood search warrant.
The trial court concluded:
      1.     Officer Wilcock’s affidavit set forth sufficient facts establishing
      probable cause that (1) [Appellant] committed driving while
      intoxicated, (2) [her] blood[]sample constituted evidence of that
      offense, and (3) the sample was located at or on [Appellant;] . . .
      [and]
      2.    The magistrate who signed the warrant had a substantial
      basis for concluding that [Appellant’s] blood[]sample would probably
      provide evidence of intoxication because the affidavit supporting the
      warrant described significant signs of intoxication and supported the
      inference that [she] drove approximately three-and-a-half hours
      before the warrant issued. . . .
[Citations omitted.]
                                  II. Discussion

A. Appellant’s Issue

      In her sole issue, Appellant contends that the trial court erred by denying

her motion to suppress blood test results because the affidavit in support of the

warrant was insufficient to establish probable cause. Specifically, she argues

that the affidavit does not state what time the DWI occurred, so the magistrate

had no way of knowing the length of time that had expired between Appellant’s

last minute of driving and the magistrate’s signing of the warrant.                Thus,

Appellant reasons, the magistrate had no basis for concluding that evidence of

intoxication would still be found in Appellant’s blood. The State argues that the

trial court’s denial of the motion to suppress was proper because the magistrate




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could reasonably infer that the offense occurred just before Officer Wilcock was

dispatched at 2:54 a.m. We agree.

B. Standard of Review and Affidavit Requirements

As this court has previously explained in a DWI blood-draw case,

             The police may obtain a defendant’s blood for a DWI
      investigation through a search warrant. A search warrant cannot
      issue unless it is based on probable cause as determined from the
      four corners of an affidavit.
             Under the Fourth Amendment and the Texas constitution, an
      affidavit supporting a search warrant is sufficient if, from the totality
      of the circumstances reflected in the affidavit, the magistrate was
      provided with a substantial basis for concluding that probable cause
      existed. Article 18.01(c) [of the code of criminal procedure] 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. 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. 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. 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.
             When reviewing a magistrate’s decision to issue a warrant, we
      apply a deferential standard in keeping with the constitutional
      preference for a warrant. No magical formula exists for determining
      whether an affidavit provides a substantial basis for a magistrate’s
      probable cause determination. 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. Nevertheless, a
      magistrate should not read into an affidavit material information that
      does not otherwise appear on its face. A magistrate should not have
      to resort so much to inferences and “common sense” conclusions

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      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.
Farhat v. State, 337 S.W.3d 302, 305–06 (Tex. App.—Fort Worth 2011, pet.

ref’d) (citations and internal quotation marks omitted).

C. Substantive Law on Staleness of Blood Alcohol Content

      Staleness of the facts supporting a search warrant is properly determined

by looking at the lapse of time between the occurrence of the events detailed in

an affidavit and the issuance of the search warrant. Crider v. State, 352 S.W.3d

704, 707 (Tex. Crim. App. 2011). Whether the evidence sought is still where it

was and available for taking depends on the type of offense, the type of suspect,

the nature of the evidence, and the place to be searched. Id. at 708. The Crider

court explained,

            Alcohol in a person’s bloodstream disappears quite rapidly,
      thus the facts cited to support probable cause to search for alcohol
      in a DWI suspect’s bloodstream become stale quite rapidly. . . .
              Assuming that a suspect did not drink after being stopped by
      an officer, at least “some” evidence of alcoholic “intoxication”
      (defined as 0.08 BAC) should still be in his blood system four hours
      later . . . .
            The higher the level of intoxication at the time of the stop, the
      longer some evidence of alcoholic intoxication would remain in the
      blood. . . . [I]t would be exceedingly unlikely that a person who was
      tested some 24 hours after he ceased drinking would register any
      detectable level of alcohol in his blood.
Id. at 708–09 (citations omitted).

      In Crider, the officer’s affidavit stated that he stopped Crider on June 6,

2008 after seeing him make a left-hand turn without signaling but provided no


                                          7
details about the time of the stop.        The magistrate signed the warrant at

1:07 a.m. on June 7, 2008. The time gap could have been as great as twenty-

five hours. See id. at 710. The Texas Court of Criminal Appeals held that no fact

in the affidavit led to a reasonable inference that the stop was close enough to

the execution of the warrant that evidence of intoxication would still be in Crider’s

blood when the warrant was executed. Id. at 711.

      State v. Jordan had the opposite result. 342 S.W.3d 565 (Tex. Crim. App.

2011). In Jordan, the affidavit was subscribed and sworn to on June 6, and the

search warrant was issued at 3:54 a.m. that same day. Id. at 567–68. The

affidavit stated that the officer had probable cause to believe that Jordan

committed DWI on June 6, 2008 and described police observations of his driving

violations and clues of intoxication. Id. But the affidavit did not specifically state

that those observations were also made on June 6, 2008. Id. at 568. The Texas

Court of Criminal Appeals held that because the date of the offense was included

in the introductory statement of the affidavit and the warrant was issued at

3:54 a.m., then the magistrate who signed the warrant had a substantial basis to

infer that the driving violations and intoxication clues described in the affidavit

were observed on that same date. Id. at 571. The Jordan court also held,

“Given the symptoms of intoxication described in the affidavit, . . . the magistrate

had a substantial basis to determine that evidence of intoxication would probably

be found in [Jordan’s] blood within four hours of the stop.” Id. at 572.




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D. Analysis

      This case is governed by Jordan.         While Appellant contends that the

magistrate needed to know specifically when the offense occurred to determine

the probability that alcohol would have been found in Appellant’s blood, enough

evidence was present in the affidavit to allow the magistrate to reasonably infer

that the offense occurred shortly before the dispatch. See id. at 570. After being

dispatched on June 22, 2015 at 2:54 a.m., Officer Wilcock found Appellant at the

scene of the accident, slumped over in the driver’s seat. Appellant admitted to

both drinking and driving; and Appellant, her car, and the car she hit were all still

at the scene of the accident.       Appellant also admitted to then having an

intoxication level of 3 on a scale of 1 to 10. Considering the facts provided in the

affidavit, the magistrate could properly infer that the accident occurred just prior

to 2:54 a.m.

      The magistrate also had a substantial basis for concluding that Appellant’s

blood would probably provide evidence of intoxication when the warrant was

signed at 6:29 a.m. The facts in the affidavit suggest the offense occurred just

before 2:54 a.m. The time lapse of less than four hours was sufficient for the

magistrate to have had a substantial basis to determine that evidence of

intoxication would likely be found in Appellant’s blood, especially in light of

Appellant’s admission at the scene (after 2:54 a.m.) that her current level of

intoxication was a 3 on a scale of 1 to 10.        See id. at 571.     We overrule

Appellant’s sole issue.


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                              III. Conclusion

      Having overruled Appellant’s sole issue, we affirm the trial court’s

judgment.



                                                /s/ Mark T. Pittman
                                                MARK T. PITTMAN
                                                JUSTICE

PANEL: SUDDERTH, C.J.; MEIER and PITTMAN, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 26, 2017




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