Ivory v. State
| Decision Date | 06 January 2023 |
| Docket Number | 06-22-00037-CR |
| Parties | MACK CURTIS IVORY, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
MACK CURTIS IVORY, Appellant
v.
THE STATE OF TEXAS, Appellee
No. 06-22-00037-CR
Court of Appeals of Texas, Sixth District, Texarkana
January 6, 2023
Do Not Publish
Date Submitted: November 14, 2022
On Appeal from the 76th District Court Camp County, Texas Trial Court No. CF20-02023
Before Stevens, C.J., van Cleef and Morriss, [*] JJ.
MEMORANDUM OPINION
Scott E. Stevens Chief Justice
After a Bowie County jury found Mack Curtis Ivory guilty of intoxication manslaughter, he was sentenced to ten years' confinement in prison. See Tex. Penal Code Ann. § 49.08. Ivory appeals, asserting that (1) the trial court erred when it denied his motion to suppress the blood draw evidence, (2) the evidence was legally insufficient to support the jury's verdict of guilt, (3) the trial court erred when it assessed a $100.00 "EMS fee" that was not authorized by statute, (4) the trial court erred when it assessed peace officer service fees for summoning witnesses, (5) the trial court erred when it assessed the fees for Ivory's court-appointed attorney, and (6) the trial court erred when it assessed a time payment fee.
For the reasons below, we affirm the trial court's judgment of conviction, but we modify the clerk's bill of costs by deleting the $100.00 EMS fee, the $400.00 in attorney fees, and the $15.00 time payment fee and by amending the assessed $195.00 in officer service fees to reflect fees in the amount of $85.00.
I. The Trial Court Did Not Err When It Denied Ivory's Motion to Suppress the Blood-Draw Evidence
In his first point of error, Ivory contends that the trial court erred by denying his motion to suppress blood evidence. "Under both the Texas and the United States constitutions, a search warrant for the extraction of blood from a person who the police believe to have committed an intoxication offense must be based on probable cause that evidence of that offense will be found through the execution of a blood-draw search warrant." Hyland v. State, 574 S.W.3d 904, 910 (Tex. Crim. App. 2019) (citing U.S. Const. amend. IV; Tex. Const. art. I, § 9).
"Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a [person] of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found." Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005) (quoting McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991), abrogated in part on other grounds by Turrubiate v. State, 399 S.W.3d 147 (Tex. Crim. App. 2013)). Prior to the issuance of a search warrant, a sworn affidavit must be filed by a peace officer setting forth sufficient facts to show probable cause
that (1) a specific offense has been committed; (2) the specifically described property or items to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense; and (3) the property or items constituting such evidence are located at or on the particular person, place, or thing to be searched
State v. Dugas, 296 S.W.3d 112, 116 (Tex. App.-Houston [14th Dist.] 2009, pet. ref'd) (citing Tex. Code Crim. Proc. Ann. art. 18.01(c)).
"In determining whether a warrant sufficiently establishes probable cause, [a] Court is bound by the four corners of the affidavit." State v. Elrod, 538 S.W.3d 551, 556 (Tex. Crim. App. 2017) (citing Lagrone v. State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987); Lopez v. State, 535 S.W.2d 643, 647 (Tex. Crim. App. 1976)). "[I]n interpreting affidavits for search warrants[,] courts must do so in a common sense and realistic manner." Id. (first alteration in original) (quoting Lopez, 535 S.W.2d at 647). "Whether the facts alleged in a probable cause affidavit sufficiently support a search warrant is determined by examining the totality of circumstances." Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996) (citing Illinois v. Gates, 462 U.S. 213, 228-29 (1983)). "The magistrate is permitted to draw reasonable
inferences from the facts and circumstances alleged." Id. at 363 (citing Cassias v. State, 719 S.W.2d 585, 587-88 (Tex. Crim. App. 1986)). An appellate court "should accord great deference to the magistrate's determination." Id. (citing Bower v. State, 769 S.W.2d 887, 902 (Tex. Crim. App. 1989), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991)). We review a trial court's denial of a motion to suppress under an abuse of discretion standard of review. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).
A. The Search Warrant Affidavit Was Supported by Probable Cause
Ivory first argues that the search warrant affidavit, on its face, did not support the magistrate's finding of probable cause. We disagree.
The State charged Ivory with intoxication manslaughter. The elements of intoxication manslaughter are, in part, as follows: (1) the individual was intoxicated, (2) while operating a vehicle in a public place, and (3) because of his intoxication, he caused the death of another person. Tex. Penal Code Ann. § 49.08(a). Clearly, proof of Ivory's intoxication was an element of the charged offense, and consequently, the State was required to present sufficient evidence for the jury to find that Ivory was intoxicated. The Texas Penal Code defines "intoxicated," in relevant part, as "not having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . into the body." Tex. Penal Code Ann. § 49.01(2)(A). At trial, the State intended to prove Ivory's intoxication via his blood alcohol concentration (BAC).[1]
Before trial, Ivory filed a written motion to suppress his blood specimen, arguing that the evidence seized was obtained without a valid search warrant. After the jury was seated but before the trial on the merits had commenced, the trial court held a hearing, outside the presence of the jury, on Ivory's motion. Without objection, the State offered, and the trial court admitted, the search warrant affidavit prepared by responding officer Brandon Love, a copy of Love's body-camera recording, and Love's testimony. After hearing the testimony and reviewing the evidence, the trial court denied Ivory's motion.[2]
On appeal, Ivory maintains that the facts contained within the four corners of the search warrant affidavit did not provide a substantial basis upon which the magistrate could have reasonably concluded that a blood alcohol test would likely uncover evidence that Ivory had been driving while intoxicated. In his sworn affidavit, Trooper Love averred that after arriving at the scene of the wreck, Ivory admitted that he had been the driver of the wrecked vehicle. Love reported a strong odor of alcohol on Ivory; that Ivory's eyes were bloodshot, glassy, and watery; and that Ivory mumbled when he spoke, was confused, and was disorderly in appearance. When Love attempted to perform horizontal- and vertical-gaze nystagmus tests on Ivory, he was unable to follow Love's instructions. Love was unable to attempt any of the physical tests at the hospital, such as the heel-to-toe and balancing tests, because he was transferred to a bed on arrival. Although there was no liquor found in Ivory's vehicle, Ivory admitted to Love that he had been drinking, specifically, two shots of liquor and one or two beers about three hours prior to the wreck.
In his brief, Ivory does not explain why he believes the factual bases in Love's search warrant affidavit were insufficient to justify the magistrate's issuance of the search warrant, nor does he direct the Court to any legal authority to support his contention. Yet, as the State points out, there are numerous cases that contain facts similar to those in this case and that support the magistrate's decision to issue a search warrant for blood evidence. See Cotton v. State, 686 S.W.2d 140, 142 (Tex. Crim. App. 1985) (evidence of intoxication may include bloodshot eyes, slurred speech, the odor of alcohol on a person's breath, unsteady balance, staggered gate); Campos v. State, 623 S.W.2d 657, 660 (Tex. Crim. App. [Panel Op.] 1981) (smell of beer on defendant and defendant's "thick-tongued" speech and unsteadiness on his feet sufficient to prove intoxication); see also Luckenbach v. State, 523 S.W.3d 849, 857-58 (Tex. App.- Houston (14th Dist.] 2017, pet. ref'd) (finding that driving wrong way on a one-way street, strong odor of alcohol on breath, glassy eyes, refusal to perform sobriety tests, and declined opportunity to provide sample of breath sufficient probable cause of driving while intoxicated (DWI)); Hogan v. State, 329 S.W.3d 90, 96 (Tex. App.-Fort Worth 2010, no pet.) (finding statements in affidavit that appellant "had a 'strong odor' of alcohol, 'bloodshot, watery[,] and heavy eyes,' a swayed and unsteady balance, and a staggered walk; and that he had refused to provide a breath specimen" sufficient probable cause of DWI (alteration in original)); Foley v. State, 327 S.W.3d 907, 912 (Tex. App.-Corpus Christi 2010, pet. ref'd) (concluding that following statements in affidavit, alone, were sufficient to establish probable cause: appellant was "geographically disoriented" and "smelled strongly of alcohol, had red and glassy eyes, slurred speech, poor balance, and . . . refused to provide a breath or blood sample"); Kennedy v. State,
797 S.W.2d 695, 697 (Tex. App.-Houston [1st Dist.] 1990, no pet.) (finding proof of "red and glassy eyes, slurred speech, and strong odor of alcohol on his breath" sufficient to prove intoxication and to establish fair probability that evidence of commission of DWI could be found in blood).
Based on Love's observations at the scene and the contents of his search warrant affidavit-Ivory's bloodshot and watery eyes, failed nystagmus tests, odor of alcohol on his person, mumbled speech, confused state, disorderly...
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