                                          COURT OF APPEALS
                                       EIGHTH DISTRICT OF TEXAS
                                            EL PASO, TEXAS

                                                         §
    PAMELA PATTERSON,                                                      No. 08-12-00289-CR
                                                         §
                             Appellant,                                         Appeal from
                                                         §
    v.                                                                County Criminal Court No. 4
                                                         §
    THE STATE OF TEXAS,                                                  of Denton County, Texas
                                                         §
                             Appellee.                                  (TC # CR-2010-04993-D)
                                                         §


                                                 OPINION

          Pamela Patterson appeals her conviction of driving while intoxicated. A jury found

Appellant guilty and the court assessed her punishment at confinement for 180 days, probated for

sixteen months, and a $500 fine. The Texas Supreme Court transferred the appeal from the

Second Court of Appeals to the Eighth Court of Appeals pursuant to a docket equalization

order.1 We affirm.

                                           FACTUAL SUMMARY

          On June 7, 2010, a civilian, Don Hensley, called 911 to report that a black Range Rover

was swerving in and out of her lane and had almost hit him. Hensley stayed on the phone with

the 911 operator and followed the SUV until it came to a stop in someone’s yard. The driver,

later identified as Appellant, was slumped over the steering wheel. Police officers with the

1
    We will decide the case in accordance with the precedent of the Second Court of Appeals. See TEX.R.APP.P. 41.3.
Flower Mound Police Department arrived within three to four minutes. John Burns, the first

officer who made contact with Appellant, observed that she had a strong odor of alcoholic

beverage on her breath although she claimed to have only had one beer or one glass of wine.

Appellant did not know what street she was on. Appellant told Burns she had been at a sushi

restaurant and was on her way home to Argyle, Texas. Burns had Appellant exit the vehicle.

       A rookie police officer, Benjamin White, and his field training officer, Ronnie Medeiros,

arrived on the scene and White took over the DWI investigation. White first attempted to

conduct HGN testing but he could not complete it because Appellant kept moving her head.

White had Appellant perform two standardized field sobriety tests, the walk and turn and the

one-legged stand. Appellant’s poor performance on these tests indicated that she was intoxicated

and White placed Appellant under arrest for DWI. White asked Appellant to provide a specimen

of her breath or blood for blood alcohol concentration (BAC) testing, but she refused. White

prepared a search warrant affidavit, signed it before a notary, and faxed it to a magistrate. The

magistrate issued a warrant for a specimen of Appellant’s blood and faxed it back to White.

White took Appellant to a clinic and a nurse drew blood from Appellant. Testing showed

Appellant’s BAC was .17 grams of alcohol per 100 ml of blood. Appellant filed a motion to

suppress the blood and blood test results because the search warrant was not supported by

probable cause. At trial, she additionally objected on the ground that the warrant named Officer

Medeiros as the affiant but it was signed by Officer White. The trial court denied the motion to

suppress and admitted the evidence over Appellant’s objections.




                                              -2-
                                         MOTION TO SUPPRESS

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

suppress because the named affiant, Officer Medeiros, did not sign the affidavit. Alternatively,

she argues that if the affiant is deemed to be Officer White, then the magistrate issued a warrant

based on the affidavit of an unidentified affiant.

                                              Factual Background

        The search warrant affidavit begins as follows:

        The undersigned Affiant, being a peace officer under the laws of Texas and being
        duly sworn, on oath makes the following statements and accusations:

        My name is Ronnie Medeiros. I am a peace officer employed by the following
        law enforcement agency: Flower Mound Police Department.

The affidavit identifies Appellant as the suspect and alleges she committed the offense of driving

while intoxicated. In the section of the affidavit titled “Probable Cause,” the affiant states, in

pertinent part, that:

        On 06/07/2010 at approximately 2155 a concerned citizen, Hensley, Don
        (xx/xx/xxxx)2 called in a possible drunk driver. Hensley observed a black Range
        Rover swerve into the left hand lane that forced him to swerve and brake. As the
        vehicle headed westbound on FM 1171 (which at this point becomes a two lane
        undivided highway) Hensley observed the vehicle swerve off the road twice and
        also into the oncoming traffic lane. A written statement was obtained from
        Hensley who followed the suspects [sic] vehicle to the location where she turned
        off the vehicle and sat until officers arrived.

        Officers Medeiros 215 and I, Officer White 286, were dispatched to the scene at
        [sic] we arrived at approximately 2205.

At the conclusion of the affidavit, the affiant requests the issuance of a search warrant to


2
  The affidavit includes Henley’s date of birth but we have intentionally redacted it from the opinion. Likewise, we
have redacted Appellant’s date of birth.
                                                       -3-
authorize him or an agent to search the person of the suspect for the blood evidence described in

the search warrant and seize the same. Officer White signed the affidavit as the affiant and his

signature is notarized by a notary public.

        White testified that he used the Law Enforcement Advanced DUI/DWI Reporting System

(“LEADRS”) system to prepare the search warrant affidavit. White did not yet have a LEADRS

account so he used Officer Medeiros’s account. Because White used Medeiros’s account, the

LEADRS software automatically inserted Medeiros’s name at the beginning of the search

warrant, but the probable cause paragraph reflects that White is the affiant. The magistrate

concluded that probable cause existed and issued a search warrant for Appellant’s blood.

                                             Standard of Review

        We review a trial court’s ruling on a motion to suppressing by using a bifurcated standard

of review. See e.g., Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010); Guzman v.

State, 955 S.W.2d 85, 87-91 (Tex.Crim.App. 1997).3 An appellate court must give almost total

deference to the trial court’s assessments of historical fact and conclusions of law with respect to

mixed questions of law and fact that turn on credibility and demeanor. State v. Saenz, 411

S.W.3d 488, 494 (Tex.Crim.App. 2013); State v. Ortiz, 382 S.W.3d 367, 372 (Tex.Crim.App.

2012). In contrast, an appellate court engages in a de novo review of mixed questions of law and

fact that do not turn on credibility and demeanor. Saenz, 411 S.W.3d at 494; Ortiz, 382 S.W.3d
3
    We are aware the bifurcated standard of review does not apply when determining whether there is probable cause
to support the issuance of a search warrant because there are no credibility determinations and the court is
constrained to the four corners of the affidavit. See State v. McLain, 337 S.W.3d 268, 271 (Tex.Crim.App. 2011).
In such a case, we would apply the deferential standard of review articulated by the United States Supreme Court in
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Swearingen v. State, 143 S.W.3d 808, 811
(Tex.Crim.App. 2004). This deferential standard of review does not apply in a case where the question is whether
the affiant swore to the truthfulness of the statements in the affidavit. See Smith v. State, 207 S.W.3d 787, 790
(Tex.Crim.App. 2006).
                                                       -4-
at 372.

                                          Applicable Law

          The Fourth Amendment to the United States Constitution guarantees people the right to

be “secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures.”    U.S. CONST. amend. IV.        The involuntary taking of a blood sample by law

enforcement officers is a search and seizure within the meaning of the Fourth Amendment to the

United States Constitution and Article I, Section 9 of the Texas Constitution. Schmerber v.

California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Smith v. State, 557 S.W.2d

299, 301 (Tex.Crim.App. 1977). Law enforcement personnel may obtain a defendant’s blood for

a DWI investigation by 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)(West Supp. 2014). A search warrant may

not issue “unless sufficient facts are first presented to satisfy the issuing magistrate that probable

cause does in fact exist for its issuance.” TEX.CODE CRIM.PROC.ANN. art. 18.01(b). Further,

Article 18.01(b) provides that: “A sworn affidavit setting forth substantial facts establishing

probable cause shall be filed in every instance in which a search warrant is requested.” Id. It has

long been the law in Texas that before a written statement in support of a search warrant will

constitute a “sworn affidavit,” the necessary oath must be administered before a magistrate or

other qualified officer. Clay v. State, 391 S.W.3d 94, 99 (Tex.Crim.App. 2013).

          Our decision in this case is also informed by Smith v. State, 207 S.W.3d 787

(Tex.Crim.App. 2006) which addresses the validity of a search warrant affidavit which had not

been signed by the affiant. The evidence showed that the officer had appeared before the


                                                -5-
magistrate and had sworn to the truth of the affidavit, but he mistakenly forgot to sign the

affidavit. Id. at 788. The Court held that Article 18.01(b) statute requires an oath, but it does not

specifically require a signature. Id. at 792. The Court explained that the purpose of this oath is

to call upon the affiant’s sense of moral duty to tell the truth and to instill in him a sense of

seriousness and responsibility. Id. The purpose of the written affidavit is to memorialize the

affiant’s recitation of the facts, conclusions, and legal basis for the issuance of the search

warrant. Id. The affiant’s signature is to memorialize the fact that he took the oath but it is not

an oath itself. Id. The Court held that the affiant’s failure to sign the warrant affidavit did not

invalidate the warrant because other evidence proved that the affiant personally swore to the

truth of the facts in the affidavit before the issuing magistrate. Id. at 792-93.

                                               Analysis

       Citing Smith v. State, Appellant first argues that the search warrant affidavit is defective

because Officer Medeiros is the named affiant and he did not sign or swear to the affidavit. The

affiant, however, is the person who swears to the truth of the statements in the affidavit. It is

undisputed that Officer White swore to the statements in the affidavit as evidenced by his

notarized signature. Thus, Appellant’s first argument is without merit. Appellant also argues

that if Officer White is the affiant, then the magistrate issued a warrant based on the affidavit of

an unidentified affiant. When the affidavit is examined as a whole, it is apparent that Officer

Medeiros is mistakenly identified as the affiant in the first sentence of the affidavit, but the

probable cause paragraph and signature line reflects that Officer White is the affiant. The

affidavit complies with Article 18.01(b) because Officer White took the oath required by Article


                                                 -6-
18.01(b) and placed his signature and badge number on the affidavit as the affiant thereby

memorializing the fact that he had taken the required oath. This satisfies Article 18.01(b)’s

requirement of a “sworn affidavit.” Accordingly, we conclude that the erroneous statement at

the beginning of the affidavit identifying the affiant as Officer Medeiros does not invalidate the

affidavit or the search warrant. The sole issue presented on appeal is overruled and the judgment

of the trial court is affirmed.


October 31, 2014
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Rivera, J., not participating)

(Do Not Publish)




                                              -7-
