Longoria v. State
| Decision Date | 25 October 2018 |
| Docket Number | NO. 03-16-00804-CR,03-16-00804-CR |
| Parties | Robert Wayne Longoria, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
NO. CR2015-514, THE HONORABLE GARY L. STEEL, JUDGE PRESIDING
A jury found appellant Robert Wayne Longoria guilty of felony driving while intoxicated, see Tex. Penal Code §§ 49.04; 49.09, and retaliation, see id. § 36.06(a). Appellant pled true to the enhancement paragraph of the indictment, and the jury assessed his punishment, enhanced pursuant to the repeat offender provision of the Penal Code, see id. § 12.42(a), at confinement for 20 years in the Texas Department of Criminal Justice and a $4,000 fine for the DWI and confinement for ten years and a $4,000 fine for the retaliation. In six points of error on appeal, appellant complains about the denial of his pretrial motion to suppress, error in the jury charge, the admission of punishment evidence, the denial of his motion to dismiss for lack of a speedy trial, and clerical error in the judgment. Finding no reversible error, we affirm the trial court's judgment of conviction for felony DWI. To correct clerical error, we modify the trial court's judgment of conviction for retaliation and, as modified, affirm the judgment.
BACKGROUND1
Kristopher Greenhill, a patrol officer with the Bulverde Police Department, initiated a traffic stop of appellant's pickup truck after observing several traffic violations. On making contact with appellant, Officer Greenhill smelled the odor of alcohol and observed several signs of intoxication. Consequently, the officer initiated a DWI investigation.
When questioned about his drinking that night, appellant said that he had "six or seven" drinks and had stopped drinking "just now." Appellant admitted that he was "already drunk" and asked the officer to "cut him a break and give him a ride." When Officer Greenhill informed appellant that he was going to proceed with the investigation, appellant said, "I'm intoxicated." The officer then attempted to conduct field sobriety tests. He administered the HGN test, and appellant exhibited six of six clues. Appellant refused to perform any further tests. Based on his observations of and interaction with appellant, Officer Greenhill concluded that appellant was intoxicated and arrested him for driving while intoxicated.
After the officer placed appellant in handcuffs, appellant became "quite belligerent" and cussed at the officer and called him several inappropriate names. Specifically, appellant called Officer Greenhill "a bitch, a pussy and a cunt" and told him that he would "fuck [his] bitch ass up." Subsequently, when the officer searched appellant, appellant resisted and repeatedly pulled away. Throughout the entire search, appellant continuously threatened the officer:
I guarantee you if you do me one on one, this Marine Corps will fuck your bitch ass up. I got you, dude. . . . You know what? When we're done, I got you're [sic] fucking name already. I guarantee you half of San Antonio will come after you. I got your fucking name and your fucking -- and you're a fucking mother fucker and I got your -- I'll take care of you, your mother and your daughter. I'm going to break their hearts.
Eventually, when the officers succeeded in placing appellant in the backseat of the patrol car,2 appellant said,
Officer Greenhill read appellant the requisite statutory warning before requesting a sample of his breath. Appellant did not respond to the officer's request, which the officer considered a refusal to provide a breath sample. Officer Greenhill then completed, on the scene, an affidavit for a search warrant for appellant's blood.3 Officer Escobel notarized the affidavit. Then, Officer Greenhill transported appellant to the hospital in New Braunfels. On the way, he contacted a magistrate by telephone, who agreed to review the officer's search-warrant affidavit. Officer Greenhill also contacted the New Braunfels Police Department to request that officers be sent to the hospital to assist with appellant.
At the hospital, appellant continued to threaten Officer Greenhill, threatening to find him when he was off duty. He also threatened the nursing staff and the assisting New Braunfels police officers. Officer Greenhill faxed his search-warrant affidavit to the magistrate, who faxedback a signed search warrant to obtain a sample of appellant's blood along with a court order for a nurse to assist in the process. While the emergency room nurse was attempting to draw appellant's blood, appellant threatened her, saying that he was going to "fuck her up."4 He also repeated that threat to Officer Greenhill and the assisting officers. Because of his belligerent behavior and resistance, appellant was placed on a gurney on his stomach and held down while the nurse drew his blood.5 Subsequent lab testing of the sample showed that appellant's blood alcohol concentration was 0.212.
Appellant was charged by indictment with felony DWI and two counts of retaliation—one for threats made against Officer Greenhill; the other for threats made against the emergency room nurse. The jury convicted appellant of the DWI (Count I) and the retaliation against Officer Greenhill (Count II) but acquitted him of the retaliation against the nurse (Count III). After appellant pled true to the enhancement paragraph of the indictment, the jury assessed his punishment at 20 years' imprisonment and a $4,000 fine for the felony DWI and ten years' imprisonment and a $4,000 fine for the retaliation. The trial court imposed sentence in accordance with the jury's verdicts, ordering the sentences to be served concurrently.
DISCUSSION
Appellant raises six points of error in this appeal. In his first two points of error, he challenges the trial court's denial of his motion to suppress. In his third point of error, appellantcomplains about error in the jury charge. In his fourth point of error, appellant contends that the trial court erred by admitting punishment evidence relating to prior bad acts. In his fifth point of error, he complains about the denial of his motion to dismiss for lack of speedy trial. Finally, in his last point of error, appellant seeks modification of the judgment of conviction for retaliation to correct clerical error.
Motion to Suppress
In his first and second points of error, appellant contends that the trial court erred by denying his motion to suppress. Specifically, he maintains that the search warrant for the blood draw from appellant was not supported by a "sworn affidavit" in violation of article 18.01(b) of the Code of Criminal Procedure and both the Texas and United States constitutions.6 Thus, he argues, the evidence of the blood alcohol analysis, reflecting a blood alcohol concentration of 0.212 grams of alcohol per 100 milliliters of blood, should have been suppressed.
We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We apply a bifurcated standard of review, State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App. 2017); Weems v. State, 493 S.W.3d 574, 577 (Tex. Crim. App. 2016), giving almost total deference to a trial court's findings of historical fact and credibility determinations that are supported by the record, but reviewing questions of law de novo,Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016); Weems, 493 S.W.3d at 577. We view the evidence in the light most favorable to the trial court's ruling, Furr, 499 S.W.3d at 877; State v. Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011), and overturn the ruling only if it is arbitrary, unreasonable, or "outside the zone of reasonable disagreement," State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); Dixon, 206 S.W.3d at 590. In our review, "[t]he prevailing party is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from it." Matthews v. State, 431 S.W.3d 596, 601 n.5 (Tex. Crim. App. 2014). Further, we will uphold the ruling if it is correct on any theory of law applicable to the case, Weems, 493 S.W.3d at 577; Absalon v. State, 460 S.W.3d 158, 162 (Tex. Crim. App. 2015), even if the trial judge made the ruling for a wrong reason, Story, 445 S.W.3d at 732.
It is well established that article 18.01(b) of the Code of Criminal Procedure requires a "sworn affidavit." Clay v. State, 391 S.W.3d 94, 98 (Tex. Crim. App. 2013); Smith v. State, 207 S.W.3d 787, 789-90 (Tex. Crim. App. 2006); Greer v. State, 437 S.W.2d 558, 562 (Tex. Crim. App. 1969); Vaughn v. State, 177 S.W.2d 59, 61-62 (Tex. Crim. App. 1943); see Tex. Code Crim. Proc. art. 18.01(b) (). Further, both the United States and Texas constitutions provide that a search warrant must be based on probable cause supported by oath or affirmation. See U.S. Const. amend. IV (); Tex. Const. art. I, § 9 (). To qualify as a sworn affidavit, the declaration of facts contained within the affidavit must be confirmed by oath. See Vaughn, 177 S.W.2d at 61. "The purpose of this oath is to call upon the affiant's sense of moral duty to tell the truth and to instill in him a sense of seriousness and responsibility." Smith, 207 S.W.3d at 790. In the context of a...
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