                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00154-CR


GREGORY BLAINE SCHEIDEMAN                                             APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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      FROM COUNTY CRIMINAL COURT NO. 2 OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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                                   Introduction

      Appellant Gregory Blaine Scheideman negotiated a plea bargain with the

State and pleaded guilty to driving while intoxicated (DWI) after the trial court

denied his motions to suppress evidence. Then he appealed, claiming in three

points that the trial court erred by denying his motions to suppress and by not

granting his request to file findings of facts and conclusions of law. In a separate

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       See Tex. R. App. P. 47.4.
order, we sustained the latter point, abated this case, and remanded it to the trial

court to file findings of fact and conclusions of law, which the trial court has now

provided in a supplemental clerk’s record.          After considering Appellant’s

remaining points in light of the complete record, we affirm.

                  Background Facts and Procedural History

      University of North Texas Police Officer S. Williamson stopped Appellant

for running a red light and noticed that Appellant’s breath and person smelled of

an alcoholic beverage, that Appellant’s eyes were bloodshot and watery, and that

Appellant’s speech was slurred. Appellant admitted that he had had a couple of

drinks at a bar, but he refused to perform field sobriety tests or to submit to a

breath test. Williamson took Appellant to jail and turned him over to the DWI

officer on duty, Officer C. Bounds. Williamson and Bounds discussed the facts

that had led Williamson to believe that Appellant had committed DWI, and

Bounds included those facts in an affidavit for a warrant to permit drawing a

specimen of Appellant’s blood for alcohol testing. Williamson filled out a form

DWI offense report. Bounds’s affidavit included Williamson’s observation that

Appellant’s speech was slurred, whereas Williamson’s report indicated that

Appellant’s speech was normal.

      A sample of Appellant’s blood was drawn and tested, and Appellant moved

to suppress the results in two motions, alleging that the warrant was not

supported by probable cause and that the statement in the affidavit that Appellant

slurred his speech was false.


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      The trial court denied both motions after a hearing at which only Officer

Bounds testified. Appellant then negotiated a plea-bargain agreement with the

State, retaining his right to appeal the trial court’s rulings on the motions to

suppress.

                                Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.     Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      When the trial court makes explicit fact findings, as the trial court did in this

case, we determine whether the evidence, when viewed in the light most

favorable to the trial court’s ruling, supports those fact findings. State v. Kelly,

204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006). We then review the trial court’s

legal ruling de novo unless its explicit fact findings that are supported by the

record are also dispositive of the legal ruling. Id. at 818.




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                           Sufficiency of the Affidavit

      In his second point, Appellant challenges the sufficiency of the warrant

affidavit to show probable cause, claiming that it does not because even though

the affidavit states that Appellant’s speech was slurred and Officer Bounds

testified that Officer Williamson reported that Appellant slurred his speech,

Officer Williamson’s report, admitted as Defense Exhibit 1, indicates that

Appellant’s speech was ―normal.‖ Appellant contends that the trial court should

have redacted the reference to slurring in the affidavit and that the redacted

version would be insufficient to show probable cause.

      With one exception that applies to Appellant’s next point, but not to this

one, review of a trial court’s denial of a suppression motion challenging the

sufficiency of an affidavit to set out probable cause is limited to the four corners

of the affidavit. Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App.), cert.

denied, 543 U.S. 944 (2004); Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim.

App. 1992), cert. denied, 507 U.S. 921 (1993); Nicol v. State, 470 S.W.2d 893,

894 (Tex. Crim. App. 1971); Davis v. State, 144 S.W.3d 192, 201 (Tex. App.—

Fort Worth 2004, pet. ref’d). In other words, unless the exception applies, we do

not stray beyond the four corners of the affidavit.         So, regardless of what

evidence may exist beyond the four corners of the affidavit, if the affidavit sets

out facts that are sufficient to establish probable cause, the affidavit is sufficient

to support issuance of a warrant.




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      The affidavit in this case stated that Appellant ran a red light, admitted to

having ―a couple of drinks‖ at a bar, smelled of alcohol, had watery, bloodshot

eyes and slurred speech, and refused to perform field sobriety tests or submit to

a breath test. Those facts are sufficient to show probable cause to believe that

Appellant was DWI, regardless of what facts may exist beyond the four corners

of the affidavit. See Tex. Dep’t of Pub. Safety v. Gilfeather, 293 S.W.3d 875,

880–81 (Tex. App.—Fort Worth 2009, no pet.) (en banc op. on reh’g) (holding

that there was substantial evidence to show probable cause for DWI when the

appellee was stopped for speeding, had bloodshot eyes, swayed, smelled like

alcohol, and refused field sobriety tests).

      Appellant relies on Torres v. State, 182 S.W.3d 899 (Tex. Crim. App.

2005), to support his argument that the affidavit is insufficient to support the

magistrate’s issuance of the search warrant, particularly if the reference to

slurred speech is excised. Torres, however, is distinguishable. It involved a

warrantless arrest made by a Texas Department of Public Safety trooper. Id. at

901. Torres crashed his vehicle into the front porch of a rural residence. Id. at

900. Two sheriff’s deputies were the first to respond, and the trooper was later

called to the scene. Id. The deputies told the trooper that, in their opinion,

Torres was intoxicated when he drove into the porch. Id. at 901. The deputies

did not, however, articulate any supporting facts upon which they had based their

opinions. Id. at 903. Recognizing that probable cause could be based on facts

and circumstances of which the trooper had reasonably trustworthy information,


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the court of criminal appeals held that because the trooper in Torres had been

supplied with mere opinion and not with any supporting facts to support a finding

of probable cause, probable cause was not shown. Id. at 903.

      That is not the case here. Officer Williamson did not give Officer Bounds

his mere opinion that Appellant had been intoxicated. He relayed to her specific

factual observations that supported a reasonable belief that Appellant had been

intoxicated while driving.   With or without the statement in the affidavit that

Appellant’s speech was slurred, we hold that the affidavit is sufficient to support

the magistrate’s issuing the warrant. See State v. Garrett, 22 S.W.3d 650, 654

(Tex. App.—Austin 2000, no pet.) (officer’s observing traffic violation, smell of

alcohol, watery eyes, and unsteadiness held sufficient to support finding of

probable cause for DWI). Accordingly, we overrule Appellant’s second point.

                             The Franks Exception

      In Franks v. Delaware, the U.S. Supreme Court allowed courts to go

outside the four corners of a warrant affidavit when a defendant alleges that the

affidavit contains a statement that is materially false. 438 U.S. 154, 171, 98 S.

Ct. 2674, 2684 (1978); Cates v. State, 120 S.W.3d 352, 355 n.3 (Tex. Crim. App.

2003). In Appellant’s third point he invokes this exception to the general rule that

sufficiency review of a warrant affidavit is limited to the four corners of the

affidavit by contending that the statement in the affidavit that Appellant’s speech

was slurred was false.




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      We review a trial court’s decision on a Franks suppression issue under the

same standard that we review a probable cause deficiency, a mixed standard of

review, giving almost total deference to a trial court’s rulings on questions of

historical fact and application-of-law-to-fact questions that turn on an evaluation

of credibility and demeanor while reviewing de novo application-of-law-to-fact

questions that do not turn upon credibility and demeanor. Davis, 144 S.W.3d at

201 (citing Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002)).

      In a Franks hearing, the trial court may consider not only the probable

cause affidavit, but also the evidence offered by the party moving to suppress

because this attack on the sufficiency of the affidavit arises from claims that it

contains false statements. Franks, 438 U.S. at 155–56, 98 S. Ct. at 2676. Under

Franks, a search warrant affidavit must be voided, and any evidence obtained

pursuant to the search warrant excluded, if a defendant can establish by a

preponderance of the evidence at a hearing that the affidavit contains a false

statement made knowingly or intentionally, or with reckless disregard for the

truth. Id. Then, setting the false material aside, the movant must also show that

the affidavit’s remaining content is insufficient to establish probable cause. Id.;

see also Hinojosa v. State, 4 S.W.3d 240, 246 (Tex. Crim. App. 1999).

      At the Franks hearing, Officer Bounds explained that Officer Williamson

mistakenly indicated on his report that Appellant’s speech was normal:         ―He

messed up on the speech part.‖ She explained further that she relied on what

Officer Williamson verbally told her about his observations of Appellant. In its


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findings of fact, the trial court found that Officer Bounds was a ―credible witness‖

and that it was ―persuaded that Officer Williamson’s verbal account to Officer

Bounds [wa]s the accurate recitation of [Appellant’s] physical presentation on the

night in question: [Appellant’s] speech and balance were not normal. Officer

Williamson merely marked the wrong boxes when completing the score sheet,

which Officer Bounds explained at the suppression hearing.‖             Under the

appropriate standard of review we are to defer to the trial court’s determinations

of credibility and demeanor. See Davis, 144 S.W.3d at 201. Accordingly, we

hold that the trial court reasonably concluded that Appellant did not prove by a

preponderance of the evidence that Officer Bounds intentionally, knowingly, or

recklessly made a material false statement in her search warrant affidavit, and

we overrule Appellant’s final point. See Franks, 438 U.S. at 155–56, 98 S. Ct. at

2676.

                                   Conclusion

        Having overruled Appellant’s remaining points, we affirm the trial court’s

judgment.


                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

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

DELIVERED: September 8, 2011



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