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holding that evidence was sufficient to support finding prior DWI conviction when, even though the judgment and order of probation contained no fingerprints, the order modifying probation contained the same cause number as the judgment and included a fingerprint that was identified as appellant's at trial, and the certified DPS driving packet referenced the conviction with a partial docket number that matched the last five digits and contained the driver's photograph, which the jury could compare to appellant
Summary of this case from Jordan v. StateOpinion
No. 02-09-00438-CR
Delivered: November 10, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
Appealed from the 16th District Court of Denton County.
PANEL: GABRIEL, GARDNER, and WALKER, JJ.
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Mino Turnbow appeals his conviction for felony driving while intoxicated (DWI). We affirm. On a Saturday night, Lake Dallas Police Officer William Soye pulled over a white pickup truck for the traffic offense of turning without signaling. Officer Soye approached the truck as Appellant exited its driver's side and stepped into a mud puddle. When the officer asked Appellant for his driver's license and proof of insurance, Appellant, leaning against the truck and smelling strongly of an alcoholic beverage, produced an expired license and a paper invoice. The officer pointed out that Appellant had handed him an invoice instead of proof of insurance, and he asked if Appellant was okay. Appellant replied that he was not okay, that he had been out with friends. The officer asked again for proof of insurance, to which Appellant replied, "I know I've been drinking, but I've been out with some friends." Suspecting that Appellant was intoxicated, Officer Soye administered the horizontal gaze nystagmus test (HGN). Appellant exhibited five out of six clues of intoxication on the HGN. The officer then had Appellant attempt the walk-and-turn test. On that test, Appellant displayed eight out of eight clues of intoxication. Because Appellant seemed unsteady on his feet — he had swayed during the HGN and had stumbled on the walk and turn — Officer Soye did not have him attempt the one-leg stand, fearing that it would be unsafe to do so. Instead, he asked Appellant to recite the alphabet from "E" to "X." Appellant started with the letter "A" and continued to the letter "Z." Finally, Officer Soye had Appellant perform the "Romberg test," an exercise that involves touching the thumb to each finger in sequence. Appellant was unable to perform this test according to the officer's instructions. Officer Soye concluded that Appellant had lost the normal use of his mental or physical capabilities due to having consumed alcohol, and he arrested him for DWI. During the book-in process at the jail, Officer Soye learned from dispatch that Appellant had prior DWI convictions, which raised the instant offense to a felony. He asked Appellant to submit a breath sample for testing, but Appellant refused. At that point, Officer Soye decided to get a warrant for a sample of Appellant's blood. After obtaining the warrant, Officer Soye drove Appellant to Denton Regional Medical Center, where phlebotomist Tara Okeola withdrew a sample of Appellant's blood for analysis. The sample was later forwarded to the Department of Public Safety Crime Lab in Garland, where chemist Andrew Macey measured its alcohol concentration at 0.26 grains of alcohol per 100 milliliters of blood — more than three times the legal limit. A grand jury indicted Appellant for felony DWI. Ten days before trial, Appellant requested technical documentation related to the DPS lab's analysis of his blood specimen. Six days before trial, the State responded by providing Appellant with approximately 280 pages of documents. On the day of trial, Appellant filed a written, unsworn motion for continuance asking for thirty more days to review the documents and to hire an expert to assist him. The trial court denied the motion for continuance; the trial went forward; the jury convicted and assessed punishment at thirty-eight years' confinement; and the trial court sentenced Appellant accordingly.
Motion for Continuance
In his first issue, Appellant contends that the trial court abused its discretion by denying his motion for continuance filed on the day of trial. Ten days before trial, Appellant had requested discovery documents that the State supplied within four days of the request. On the day of trial, Appellant filed a written, but unsworn motion for continuance asking for a month to review the documents and to hire an expert to assist his review. The Texas Code of Criminal Procedure provides that all motions for continuance must be sworn to by a person having personal knowledge of the facts relied on for the continuance. Tex. Code Crim. Proc. Ann. art. 29.08 (Vernon 2009); Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000); see Montoya v. State, 810 S.W.2d 160, 176 (Tex. Crim. App.), cert. denied, 502 U.S. 961 (1991). Because Appellant's motion for continuance is unsworn, the trial court did not abuse its discretion by denying it. We overrule Appellant's first issue.Blood Test Results
In his next two issues, Appellant challenges the trial court's denial of his motions to suppress evidence of the blood test results. First, he claims that the results should have been suppressed because the blood-draw warrant was defective in that its supporting affidavit did not provide a substantial basis for the magistrate to find probable cause.Sufficiency of the Warrant Affidavit
When the government draws a blood specimen to determine a suspect's blood alcohol concentration, it performs a "search" under the Fourth Amendment. See Schmerber v. California, 384 U.S. 757, 770 (1966); Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002). A warrant satisfies the Fourth Amendment so long as its supporting affidavit provides the issuing magistrate with a substantial basis for finding probable cause. Illinois v. Gates, 462 U.S. 213, 238-39 (1983). An affidavit for a search warrant provides the magistrate with a substantial basis for finding probable cause when it recites facts and circumstances known by the officer from a trustworthy source that would justify a person of reasonable caution in the belief that a crime has been committed and that evidence of the crime may presently be located in the place to be searched at the time the warrant is issued. See Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986); Ferguson v. State, 573 S.W.2d 516, 520 (Tex. Crim. App. 1978), cert. denied, 442 U.S. 934 (1979). In assessing the sufficiency of a search warrant affidavit, we limit our review 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). We interpret the affidavit in a commonsense and realistic manner, recognizing that the magistrate was permitted to draw reasonable inferences. Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006); Hankins, 132 S.W.3d 388; see Rodriguez v. State, 232 S.W.3d 55, 61-64 (Tex. Crim. App. 2007). The affidavit in this case states:On Saturday 12/27/08 at approximately 2235 hours, I Officer Soye #249, observed a white Chevy pickup . . . fail to signal when turning off E Hundley Dr on to Gotcher. . . . After my light came on I observed the vehicle swerve, slow down[,] stop[,] and then pull ahead again to another location farther down Gotcher. I made contact with the driver, identified by TX DL . . . [as Appellant]. . . . While talking to [Appellant] I could smell a strong odor of an alcoholic beverage emitting for [sic] his breath and/or person. I asked him if [he] was drinking and he said "Yes I had three or four beers at the American Legion.["] I performed the Standardized Field Sobriety Test's. [sic] I observed 5 out of 6 clues in [HGN]. I performed the Nine Step Walk and Turn and I observed 8 out of 8 clues. I attempted to perform the One Leg Stand but was unable to due to his unstableness. I performed the ABC's and he could not recite from letter E to X. I performed the finger count and he could not perform. I read the DIC 24 to [Appellant] and he refused to provide a specimen. I determined [Appellant] was operating a motor vehicle in a public place while intoxicated.Appellant contends that nothing within the four corners of the affidavit established that he might have been intoxicated. Read in a commonsense and realistic manner, however, the officer's observations reported in the affidavit — Appellant's truck's swerving, strong odor of alcohol on his breath, admission that he had consumed "three or four beers," performance on the field sobriety tests, and refusal to submit to breath testing — would lead a person of reasonable caution to infer that Appellant had been driving while intoxicated and that his blood would contain evidence to that effect. See Davis, 202 S.W.3d at 154; Cassias, 719 S.W.2d at 587; Tex. Dep't of Pub. Safety v. Cortinas, 996 S.W.2d 885, 888-89 (Tex. App.-Houston [14th Dist.] 1998, no pet.). We hold, therefore, that the affidavit provided the magistrate with a substantial basis for finding probable cause and that the trial court did not err by denying Appellant's motion to suppress on the ground that the warrant was defective. See Gates, 462 U.S. at 238, 103 S. Ct. at 2332; Cortinas, 996 S.W.2d at 888-89. Accordingly, we overrule Appellant's second issue.