Hogan v. State

• Decision Date: 18 November 2010
• Docket Number: No. 02-09-00387-CR.,02-09-00387-CR.
• Citation: 329 S.W.3d 90
• Parties: John Dan HOGAN, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

329 S.W.3d 90

John Dan HOGAN, Appellant,
v.
The STATE of Texas, State.

No. 02-09-00387-CR.

Court of Appeals of Texas,
Fort Worth.

Nov. 18, 2010.

329 S.W.3d 92

Matthew McConahay, The Myers Law Firm, Aledo, G. Alan Steele, Fort Worth, for Appellant.

Joe Shannon, Jr., Crim. Dist. Atty., Charles M. Mallin, Asst. Crim. Dist. Atty., Chief of Appellate Section, Tanya S. Dohoney, Jon Michael O'Toole & Carl J. Lazarus, Asst. Crim. Dist. Attys., Tarrant County, Fort Worth, for State.

PANEL: LIVINGSTON, C.J.; McCOY and MEIER, JJ.

OPINION

TERRIE LIVINGSTON, Chief Justice.

In three related issues, appellant John Dan Hogan appeals his conviction for driving while intoxicated (DWI).¹ He contends that the trial court erred by denying his motion to suppress evidence that the police obtained after arresting him. We affirm.

Background Facts

On an early fall morning in 2008, Fort Worth Police Department Officer C.D. Harris was on patrol when he heard another officer, who was on a bike, say on the radio that a car was driving dangerously and going the wrong way on a one-way street. Officer Harris found a car that matched the description that he had been given; the car had just been stopped because of another patrol officer's command. As appellant stepped out of the car, Officer Harris placed handcuffs on him.² Officer Harris noticed that appellant smelled like alcohol, had bloodshot and watery eyes, had slurred speech, and was swaying and unsteady. Appellant failed three field sobriety tests; he showed six clues of intoxication on the horizontal-gaze-nystagmus test, six clues on the walk-and-turn test, and three clues on the one-leg-stand test.³

329 S.W.3d 93

Officer Harris placed appellant in the patrol car and took him to jail. Officer Harris then read the statutory warning to appellant about providing a breath specimen, and appellant refused to give one. After giving appellant the walk-and-turn and one-leg-stand tests again in an intoxilyzer room, Officer Harris placed appellant in a holding cell while he typed a search warrant affidavit to draw appellant's blood because appellant had refused the breath test. A municipal magistrate read the affidavit and signed the warrant, and Officer Harris took appellant to a hospital, where a medical professional took appellant's blood sample.⁴

The State charged appellant with DWI. Appellant filed a motion to suppress evidence related to his blood draw and statements that he made to the police after his arrest. After an evidentiary hearing, the trial court granted the suppression of appellant's statements but denied appellant's motion relating to the blood draw. About a month later, under a plea agreement, appellant pled nolo contendere. The trial court sentenced him to 365 days' confinement, but it suspended the sentence and placed him on two years' community supervision. Appellant preserved his right to bring this appeal.

The Denial of Appellant's Motion to Suppress

In three related issues, appellant argues that (1) the search warrant issued to obtain his blood specimen was not supported by probable cause and therefore violated the United States and Texas constitutions, and (2) the affidavit supporting the warrant did not comply with article 18.01 of the code of criminal procedure because it did not contain sufficient facts showing probable cause that an offense had been committed.⁵

Standard of review and applicable law

The police may obtain a defendant's blood for a DWI investigation 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) (Vernon Supp.2010); State v. Johnston, 305 S.W.3d 746, 750 (Tex.App.-Fort Worth 2009, pet. granted). A search warrant cannot issue unless it is based on probable cause as determined from the four corners of an affidavit. U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex.Code Crim. Proc. Ann. art. 18.01(b) ("A sworn affidavit ... establishing probable cause shall be filed in every instance in which a search warrant is requested."); Nichols v. State, 877 S.W.2d 494, 497 (Tex.App.-Fort Worth 1994, pet. ref'd). When reviewing a magistrate's decision to issue a warrant, we apply a highly deferential standard in keeping with the constitutional preference for a warrant. Rodriguez v. State, 232 S.W.3d 55, 59-60 (Tex.Crim.App.2007) ( "[E]ven in close cases we give great deference to a magistrate's determination of probable cause to encourage police officers to use the warrant process rather than making a warrantless search

329 S.W.3d 94

and later attempting to justify their actions by invoking some exception to the warrant requirement."); Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex.Crim.App.2004); Emenhiser v. State, 196 S.W.3d 915, 924-25 (Tex.App.-Fort Worth 2006, pet. ref'd).

Under the Fourth Amendment and the Texas constitution, an affidavit supporting a search warrant is sufficient if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed. Swearingen, 143 S.W.3d at 810-11; Nichols, 877 S.W.2d at 497. Probable cause exists to issue an evidentiary search warrant if the affidavit shows facts and circumstances to warrant a person of reasonable caution to believe that the criteria set forth in article 18.01(c) of the code of criminal procedure have been met. 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 that (1) a specific offense has been committed, (2) the item to be seized constitutes evidence of the offense or evidence that a particular person committed the offense, and (3) the item is located at or on the person, place, or thing to be searched. See Tex.Code Crim. Proc. Ann. art. 18.01(c); Tolentino, 638 S.W.2d at 501.

A reviewing court should not invalidate a warrant by interpreting the affidavit in a hypertechnical manner. See Rodriguez, 232 S.W.3d at 59; Tolentino, 638 S.W.2d at 501 (explaining that "[n]o magical formula exists" for an affidavit's explanation of probable cause); Nichols, 877 S.W.2d at 498. Rather, when a court reviews an issuing magistrate's determination, the court should interpret the affidavit in a commonsense and realistic manner, recognizing that the magistrate may draw reasonable inferences. See Rodriguez, 232 S.W.3d at 61 ("When in doubt, we defer to all reasonable inferences that the magistrate could have made."); Davis...