And, some Texas appellate courts, including the Texas Court of Criminal Appeals and this court, have assumed, but not decided, that Franks applies to omissions of fact contained within a probable cause affidavit. SeeRenteria v. State, 206 S.W.3d 689, 704 (Tex.Crim.App.2006) (assuming application of Franks to omissions and concluding that even if the information omitted from the affidavit was included, sufficient probable cause existed to issue the search warrant); Thom v. State, 437 S.W.3d 556, 563–64 (Tex.App.–Houston [14th Dist.] 2014, no pet.) (explaining that even presuming Franks applies to material omissions, the appellant did not request a Franks hearing or make a preliminary showing); Emack v. State, 354 S.W.3d 828, 838–39 (Tex.App.–Austin 2011, no pet.) (assuming without deciding that Franks applies to omissions in an affidavit and holding that the appellant did not show the officer omitted material facts from the affidavit either deliberately or with a reckless disregard for the truth); Wise v. State, 223 S.W.3d 548, 557 (Tex.App.–Amarillo 2007, pet. ref'd) (assuming Franks applies to omissions and holding even if omissions had been concluded, there was probable cause to issue the warrant); Garza v. State, 161 S.W.3d 636, 640 (Tex.App.–San Antonio 2005, no pet.) (declining to extend Franks to omissions but addressing it in the alternative). Finally, it must be noted that in an unpublished opinion, this court did hold that Franks applied to material omissions in a probable cause affidavit:
Where the search warrant sought is for blood evidence to prove intoxication, the magistrate typically must determine probable cause exists that a blood test would provide evidence showing appellant was intoxicated. SeeThom v. State , 437 S.W.3d 556, 561 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Whether the facts stated in the affidavit establish probable cause depends on the totality of the circumstances.
A blood specimen is an item that may be searched for and seized under article 18.02(10). Clay v. State, 391 S.W.3d 94, 97 n.7 (Tex. Crim. App. 2013); Thom v. State, 437 S.W.3d 556, 560 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Only a judge of a municipal court of record who is an attorney licensed in this state, a county court judge who is a licensed Texas attorney, a statutory county court judge, a district court judge, a judge of the Texas Court of Criminal Appeals, a justice of the Supreme Court of Texas, or a magistrate with criminal jurisdiction serving a district court may sign an evidentiary warrant.
(Docket Entry No. 28-9 at 1-2). Because probable cause does not impose "a high bar," Kaley v. United States, 134 S. Ct. 1090, 1103 (2014), these facts, viewed together, amply provided the magistrate judge a basis to find a "fair probability" that a blood test would provide evidence that Forbes was driving while intoxicated, Gates, 462 U.S. at 238; see Thom v. State, 437 S.W.3d 556, 562 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ("Erratic driving as well as post-driving behavior, including slurring of speech, inability to perform field-sobriety tests, bloodshot eyes and admissions by the suspect concerning what, when, and how much he had been drinking, all constitute evidence that would raise an inference that appellant was intoxicated at the time of driving."). Even without the statement that Forbes refused to take a field sobriety test, the warrant-application affidavit contained enough information for the magistrate judge to find probable cause.
Standard of Review and Applicable LawThe United States Supreme Court held in Franks v. Delaware that if a defendant establishes by a preponderance of the evidence that the probable cause affidavit includes a false statement that was made knowingly, intentionally, or with reckless disregard for the truth, and the false statement is necessary to establish probable cause, the search warrant is invalid under the Fourth Amendment. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978); Thom v. State, 437 S.W.3d 556, 563 (Tex.App.--Houston [14th Dist.] 2014, no pet.). A misstatement in an affidavit that is the result of simple negligence or inadvertence, as opposed to reckless disregard for the truth, will not invalidate the warrant.
This exclusionary rule does not extend to instances in which the police are merely negligent in collecting the facts alleged in the affidavit. Id. at 170-71, 98 S.Ct. at 2683-84; Thom v. State, 437 S.W.3d 556, 563-64 (Tex. App.—Houston [14th Dist.] 2014, no pet.). 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 the warrant invalid.
Appellant's admission that she consumed three beers, along with the open container of beer in her car and her inability to answer basic questions about where she came from or what medication she had taken, were also significant indicators of intoxication. See Thom v. State, 437 S.W.3d 556, 563 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding that trial court did not err in determining probable cause existed to support warrant for defendant's blood sample when the defendant "displayed many classic signs of intoxication and admitted to having consumed six beers" in spite of a breath test that registered his BAC at 0.00). Similarly, a defendant's poor performance on standardized field sobriety tests is further evidence of intoxication.
Where the search warrant sought is for blood evidence to prove intoxication, the magistrate typically must determine probable cause exists that a blood test would provide evidence showing appellant was intoxicated. Islas v. State, 562 S.W.3d 191, 196 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Thom v. State, 437 S.W.3d 556, 561 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Whether the facts stated in the affidavit establish probable cause depends on the totality of the circumstances.
Standard of Review and Applicable LawThe United States Supreme Court held in Franks v. Delaware that if a defendant establishes by a preponderance of the evidence that the probable cause affidavit includes a false statement that was made knowingly, intentionally, or with reckless disregard for the truth, and the false statement is necessary to establish probable cause, the search warrant is invalid under the Fourth Amendment. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978); Thom v. State, 437 S.W.3d 556, 563 (Tex.App.--Houston [14th Dist.]. 2014, no pet.). A misstatement in an affidavit that is the result of simple negligence or inadvertence, as opposed to reckless disregard for the truth, will not invalidate the warrant.
We conclude that these facts sufficed to support a finding of probable cause that evidence of intoxication would be found in a search of appellant's blood. See Hyland, 574 S.W.3d at 916; Thom v. State, 437 S.W.3d 556, 562 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Foley v. State, 327 S.W.3d 907, 912 (Tex. App.—Corpus Christi 2010, pet. ref'd) (affidavit stating that defendant smelled strongly of alcohol, had red and glassy eyes, slurred speech, poor balance, and refused to provide breath or blood sample contained sufficient facts to support probable cause for requiring blood sample).