Opinion
No. 05-09-00926-CR
Opinion issued April 6, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-84506-08.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
OPINION
Robert Jackson Crider was convicted by a jury of driving while intoxicated and sentenced by the trial court to 90 days in the county jail, probated for one year, and an $800 fine. In a single issue, appellant claims the trial court abused its discretion in denying his motion to suppress certain evidence. We affirm. Shortly before midnight on June 6, 2008, Sergeant Anthony Henderson of the Wylie Police Department saw a car turn left without using a turn signal. After pulling the car over, he approached and observed appellant seated in the driver's seat. Henderson detected a strong odor of alcohol and noticed appellant's speech was affected. He asked appellant to step out of the car and observed appellant swayed while walking, appellant's pants were unzipped, and his eyes were bloodshot. Henderson administered the horizontal gaze nystagmus test and noted four clues: lack of smooth pursuit in both eyes and distinct and sustained nystagmus at maximum deviation in both eyes. Appellant refused other testing. Henderson arrested appellant for driving while intoxicated and transported him to the Wiley Police Department intoxilyzer room. When appellant refused to give a breath specimen, Henderson prepared an affidavit for a search warrant to draw a blood specimen. Henderson signed the affidavit, and it was notarized on June 7, 2008. The affidavit was faxed to a judge who signed the warrant at 1:07 a.m. on June 7, 2008. Appellant was transported to the hospital where his blood was drawn. Appellant's blood sample contained 0.14 grams of alcohol per 100 milliliters of blood. After hearing this and other evidence, the jury convicted appellant of driving while intoxicated. In his sole issue, appellant claims the search warrant affidavit fails to establish recent probable cause in violation of the United States and Texas Constitutions and article 38.23 of the code of criminal procedure. Specifically, appellant contends the affidavit does not state the time of appellant's arrest or the observed facts used as grounds for probable cause and, therefore, does not establish the facts were "recent." When reviewing a trial court's ruling on a motion to suppress, we view all of the evidence in the light most favorable to the ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We afford almost total deference to a trial court's determination of the historical facts that the record supports, especially when the implicit factfinding is based on an evaluation of credibility and demeanor. Id. We review de novo the trial court's application of the law. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). Appellate review of an affidavit in support of a search warrant, however, is not reviewed de novo; rather, we give great deference to the magistrate's determination of probable cause. State v. Dugas, 296 S.W.3d 112, 116 (Tex. App.-Houston [14th Dist.] 2009, pet. ref'd) (citing Illinois v. Gates, 462 U.S. 213, 236-37 (1983)); McKissick v. State, 209 S.W.3d 205, 211 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd). Probable cause to support the issuance of a search warrant exists where the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued. Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006). A search warrant affidavit must be read in a common sense and realistic manner. Id.; Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004). Reasonable inferences may be drawn from the facts and circumstances contained within the four corners of the affidavit. Davis, 202 S.W.3d at 154; Hankins, 132 S.W.3d at 388. The proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsed between the occurrence of the events set out in the affidavit and the time the search warrant was issued. McKissick, 209 S.W.3d at 212. Probable cause ceases to exist when, at the time the search warrant is issued, it would be unreasonable to presume the items remain at the suspected place. Dugas, 296 S.W.3d at 116; McKissick, 209 S.W.3d at 214. The duty of a reviewing court is simply to determine whether, considering the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed to support the issuance of the warrant when viewing the affidavit. McKissick, 209 S.W.3d at 212. Although appellant claims the affidavit does not contain sufficient information to support the finding of probable cause because Henderson failed to state the actual time he initiated the traffic stop or arrested appellant, we cannot agree. The uninterrupted sequence of events outlined in the affidavit provides that, on June 6, 2008, Henderson, a nine-year veteran police officer, initiated the traffic stop and, upon making contact, identified appellant as the driver. He detected a strong odor of alcoholic beverage, bloodshot eyes, and thick-tongued speech. Henderson administered the HGN and observed four clues. Appellant refused to perform other sobriety tests. While speaking with appellant, Henderson noticed he swayed heavily. Based on these observations, the officer arrested appellant for driving while intoxicated and requested a breath specimen which appellant refused. Henderson's signature swearing to the facts alleged in the affidavit was notarized on June 7, 2008, and the magistrate issued the search warrant at 1:07 a.m. on June 7, 2008. Viewing the facts and circumstances within the four corners of the affidavit, specifically the factual time-line given by the officer, interpreting the affidavit "in a common sense and realistic manner," and drawing all reasonable inferences, we conclude the June 7, 2008, 1:07 a.m. finding of probable cause by the magistrate was of reasonable proximity to the June 6, 2008 arrest of appellant. We cannot say it was unreasonable for the magistrate to presume some evidence of intoxication would be found in appellant's blood when the warrant was signed. We therefore conclude the trial court did not err in denying appellant's motion to suppress. We overrule appellant's sole issue. We affirm the trial court's judgment.