                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-10-00342-CR


MARY CRAWFORD STANLEY                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


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       FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      The trial court denied Appellant Mary Crawford Stanley‘s motion to

suppress after it concluded that a police officer‘s affidavit requesting a warrant to

obtain Stanley‘s blood sample established sufficient probable cause that she was

driving while intoxicated. In one point, Stanley argues that the arresting officer‘s


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       See Tex. R. App. P. 47.4.
search warrant affidavit failed to establish probable cause that Stanley was

driving while intoxicated. We will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      On the night of November 29, 2008, Stanley was involved in a collision

with a car. Flower Mound Police Officer Thomas Cox responded to the accident,

observed Stanley‘s appearance and behavior, performed three standardized field

sobriety tests, and arrested Stanley for driving while intoxicated.       Because

Stanley refused to give a breath or blood specimen, the arresting officer

completed an affidavit requesting a magistrate judge to issue a search warrant

for Stanley‘s blood. In the early morning of November 30, 2008, the magistrate

judge signed the search warrant, and Stanley‘s blood was drawn.

      Stanley was subsequently charged by information with driving while

intoxicated, and she moved to suppress the evidence obtained by the

magistrate‘s search warrant, arguing that Officer Cox‘s affidavit lacked probable

cause. At the hearing, the State entered the search warrant and affidavit into

evidence, but neither party entered any other exhibit or testimony. The trial court

denied Stanley‘s motion, and in August 2010, Stanley pleaded nolo contendere

to driving while intoxicated. The trial court imposed a $600 fine and sentenced

Stanley to 180 days in jail, probated for eighteen months. In accordance with her

plea bargain, Stanley preserved her right to appeal the denial of her motion to

suppress. This appeal followed.




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                           III. SUFFICIENCY OF AFFIDAVIT

      In her only point, Stanley argues that Officer Cox‘s search warrant affidavit

failed to establish probable cause that Stanley was driving while intoxicated.

      During a DWI investigation, law enforcement may obtain a defendant‘s

blood 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) (West Supp.

2010). Under the Fourth Amendment and the Texas constitution, a magistrate

must find probable cause within the four corners of an affidavit in order to issue a

search warrant. U.S. Const. amend. IV; Tex Const. art. I, § 9; Tex. Code. Crim.

Proc Ann. art. 18.01(b); Nichols v. State, 877 S.W.2d 494, 497 (Tex. App.—Fort

Worth 1994, pet. ref‘d).     When reviewing an affidavit‘s sufficiency and a

magistrate‘s determination of probable cause, we limit our review to the totality of

the circumstances within the four corners of the affidavit and defer to the

magistrate‘s probable cause determination ―so long as the magistrate had a

‗substantial basis for . . . conclud[ing]‘ that a search would uncover evidence of

wrongdoing.‖ Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983)

(quoting Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736 (1960),

overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 100 S. Ct.

2547 (1980)); Swearingen v. State, 143 S.W.3d 808, 810 (Tex. Crim. App. 2004);

Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied, 507

U.S. 921 (1993)); see also Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App.




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2010). Probable cause is established if a person of reasonable caution would be

warranted in believing that the affidavit includes facts and circumstances which

meet the criteria in article 18.01(c) of the code of criminal procedure. Hogan v.

State, 329 S.W.3d 90, 94 (Tex. App.—Fort Worth 2010, no pet.) (citing Tolentino

v. State, 638 S.W.2d 499, 501 (Tex. Crim. App. [Panel Op.] 1982)); see Tex.

Code. Crim. Proc. Ann. art. 18.01(c).       The affidavit must set forth facts

establishing (1) that a specific offense has been committed, (2) that the item to

be seized constitutes evidence of that offense or evidence that a particular

person committed that offense, and (3) that the item is located at or on the

particular person, place, or thing to be searched. See Tex. Code Crim. Proc.

Ann. art. 18.01(c); Tolentino, 638 S.W.2d at 501; Hogan, 319 S.W.2d at 94.

      Our highly ―deferential standard of review is appropriate to further the

Fourth Amendment‘s strong preference for searches conducted pursuant to a

warrant,‖ which mitigates possible ―intrusion[s] upon‖ an individual‘s Fourth

Amendment-protected interests.     Davis v. State, 202 S.W.3d 149, 157 (Tex.

Crim. App. 2006).     Thus, ―‗courts should not invalidate . . . warrant[s] by

interpreting affidavit[s] in a hypertechnical . . . manner‘‖ but should instead

―interpret [affidavits] in a commonsense and realistic manner‖ and ―must allow for

any reasonably available inferences‖ drawn by a magistrate. Gates, 462 U.S. at

236, 103 S. Ct. at 2331 (emphasis added) (quoting United States v. Ventresca,

380 U.S. 102, 109, 85 S. Ct. 741, 746 (1965)); Davis, 202 S.W.3d at 157–58;




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Hogan, 329 S.W.3d at 94. Although a magistrate‘s ―action cannot be a mere

ratification of . . . bare conclusions‖ found in the affidavit, ―‗[t]he 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.‘‖ Gates, 462 U.S. at

239, 103 S. Ct. at 2333; Hogan, 329 S.W.3d at 94 (quoting Rodriguez v. State,

232 S.W.3d 55, 62 (Tex. Crim. App. 2007)).

      Here, the affidavit states that (1) ―[o]n or about the 29 day of November,

2008, [Stanley] . . . operate[d] a motor vehicle in a public place in Denton County,

Texas while intoxicated by not having the normal use of mental or physical

faculties by reason of the introduction of alcohol . . .‖; (2) ―human blood . . .

constitutes evidence that [Stanley] committed the offense‖; and (3) ―[Stanley] has

possession of and is concealing human blood.‖ Officer Cox explained that he

smelled a ―slight‖ alcoholic odor on Stanley‘s breath and that he heard Stanley

erroneously state that she was located in Lake Dallas. When Officer Cox asked

if she had been drinking, Stanley responded that she ―had one.‖ According to

Officer Cox, Stanley also stated prior to her arrest that she ―would rather go to jail

than let [her] [priest] father know the amount [that she] was drinking.‖ Officer

Cox‘s affidavit indicated that Stanley‘s balance was swayed and unsteady, her

walking was staggered, her speech was slurred, her eyes were red and watering,

and her attitude was cocky and uncooperative. In addition to these observations,




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the affidavit included results from three different field sobriety tests—the

horizontal gaze nystagmus (HGN) test, the walk and turn test, and the one leg

stand test. Officer Cox observed five clues of intoxication when he performed the

HGN test. He further noted that during the instruction phase of the walk and turn

test, Stanley could not keep her balance, started too soon, and ―almost fell.‖

During the test‘s walking stage, Stanley ―stopped on the ninth step‖ because,

according to her, she ―was cold.‖ Officer Cox commented that Stanley ―put [her]

foot down more than three times‖ during the one leg stand test.

       Stanley argues that her poor performance during the field sobriety tests

and her geographical disorientation were attributable to trauma rather than

intoxication and that in order for a magistrate to infer the opposite, he ―must base

the opinion on an officer [who is] clearly demonstrated to be trained and certified

to make that call.‖ Stanley challenges the officer‘s ability to ―make that call,‖

contending that ―[t]he officer‘s affidavit fails to detail his training and experience

which would lend a magistrate to rely on him.‖ Stanley takes specific issue with

the officer‘s ability to conduct the HGN test and argues that the only reference to

the officer‘s training is a conclusory statement that invalidates the supporting

affidavit.2



       2
        Stanley argues that the following statement provides no explanation or
affirmation that Officer Cox is trained to conduct HGN tests: ―Based on all of the
above and my experience and training, I determined that the suspect was
intoxicated . . . .‖



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         Although Stanley is correct that a magistrate cannot issue a search

warrant based on conclusory statements alone, see Gates, 462 U.S. at 239, 103

S. Ct. at 2333, she incorrectly asserts that an affidavit requires some explanation

to a magistrate of the officer‘s specific training and ability to interpret the

observations and that an affidavit is fatally undermined by its failure to detail the

officer‘s training and experience. See Hogan, 329 S.W.3d at 96 (holding that an

affidavit‘s omission of an officer‘s detailed experience with DWI cases does not

invalidate the affidavit‘s sufficiency). Moreover, while the ―[b]est practice is for

the affiant expressly to include an officer‘s experience, background information,

and previous association with [intoxicated drivers and field sobriety tests] so that

little is left to inference, . . . the law requires that we defer to a magistrate‘s

reasonable, common sense conclusions.‖ Davis, 202 S.W.3d at 157–58. Thus,

we agree with the State that a magistrate may reasonably infer from the affidavit

that Officer Cox was trained to administer and interpret all three field sobriety

tests.    The affidavit in this case states that Officer Cox is a peace officer

employed by a law enforcement agency (the Flower Mound Police Department),

that he has seen intoxicated persons on many occasions in the past, and that

based on his training and experience, Stanley was intoxicated. The affidavit also

states that Officer Cox recorded results and observations of Stanley‘s

performance of the field sobriety tests, and it lists and identifies the various clues

associated with the HGN test and outlines the phases of the walk and turn test.




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Without reading additional facts into the affidavit, the magistrate could have

reasonably concluded that Officer Cox‘s assertion that he observed five clues

while performing the HGN test was based on his training and experience with

intoxicated persons.

      To the extent Stanley argues that equally conflicting inferences could be

drawn from the affidavit (e.g., Stanley‘s trauma, instead of intoxication, accounts

for her behavior), this does not destroy the affidavit‘s sufficiency. See Rodriguez,

232 S.W.3d at 64 (―It is not necessary to delve into all of the facts that were

omitted by the affiant, facts that could have been included in the affidavit, or

contrary inferences that could have been made by the magistrate.‖).           Such

conflicting inferences, as argued here, underscore this court‘s duty to defer to the

magistrate‘s probable cause determination when supported by a substantial

basis. See Davis, 202 S.W.3d at 157–58. Our decision is consistent with the

desire to encourage future police officers to use the warrant process, which

consequently helps preserve an individual‘s fundamental Fourth Amendment

rights. See id. at 157.

      Stanley also asks us to consider how the trial court‘s factual findings here

compare to the factual findings of other cases, all of which established probable

cause. See State v. Dugas, 296 S.W.3d 112 (Tex. App.—Houston [14th Dist.]

2009, pet ref‘d); Thurman v. State, 861 S.W.2d 96 (Tex. App.—Hous. [1st Dist.]

1993, no pet.); Martin v. State, No. 02-08-00128-CR, 2009 WL 2414294 (Tex.




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App.—Fort Worth Aug. 6, 2009, no pet.) (mem. op., not designated for

publication). Apparently, Stanley seeks to distinguish her case from these cases

by highlighting facts found in the above cases that are not found in her case. For

example, in Martin, the appellant fled the scene of an accident, was combative

towards officers, and slurred his speech.     Martin, 2009 WL 2414294, at *3.

Stanley argues that she was neither combative nor uncooperative and that no

evidence indicates that she slurred her speech or was slow to respond.

However, the officer noted in his affidavit that Stanley was both cocky and

uncooperative and that her speech was slurred.        Not only does the affidavit

foreclose Stanley‘s argument, her attempts to parse the language and somehow

distinguish her case from other probable cause cases reflects a hypertechnical

approach to reviewing affidavits, which is contrary to the law‘s approach. See

Gates, 462 U.S. at 236, 103 S. Ct. at 2331. ―No magical formula exists‖ for

finding probable cause, and we base our decision on the totality of the

circumstances within the affidavit. See Tolentino, 638 S.W.2d at 501.

      Accordingly, deferring to the magistrate‘s determination of probable cause,

we hold that the affidavit in its entirety establishes sufficient facts, along with

reasonable inferences from those facts, to provide the magistrate judge with a

substantial basis for concluding that obtaining Stanley‘s blood would probably aid

in proving that she committed the offense of driving while intoxicated.        We

overrule Stanley‘s only point.




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                                 IV. CONCLUSION

      Having overruled Stanley‘s sole point, we affirm the trial court‘s judgment.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

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

DELIVERED: July 28, 2011




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