No. 05-10-01195-CR
Opinion Filed November 2, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the County Court at Law No. 1 Collin County, Texas, Trial Court Cause No. 001-89252-2009.
Before Justices MOSELEY, LANG, and MYERS.
Opinion By Justice MYERS.
Appellant, Roy Dewayne Gravitt, was convicted of class B misdemeanor driving while intoxicated (DWI) and sentenced to 120 days in jail, probated for fifteen months, and an $800 fine. In only one point of error, appellant argues the trial court erred by denying his motion to suppress. We affirm.
Discussion
Appellant argues the trial court erred in two ways by denying his motion to suppress: (1) the affidavit was not sworn to in the physical presence of the magistrate; (2) the search warrant affidavit was based on conclusory statements and did not provide a substantial basis for concluding probable cause existed to justify a search warrant for appellant's blood. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). Thus, we give almost total deference to the trial court's rulings on (1) questions of historical fact, even if the trial court's determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application of law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But when application of law-to-fact questions does not turn on the credibility and demeanor of the witnesses, we review the trial court's rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53. Beginning with appellant's first contention, we note that, after appellant was arrested for DWI and refused to provide a breath or blood specimen, Officer Billy McIntosh of the Wylie Police Department sought a warrant for appellant's blood from a magistrate in Collin County. The officer called the magistrate, who recognized the officer, and the officer told the magistrate he would be faxing a search warrant affidavit. Before faxing the affidavit, McIntosh swore an oath to Curtis Smith, a notary, who was also McIntosh's patrol sergeant. The face of the affidavit states that the officer "being duly sworn, on Oath makes the following statements and accusations." The affidavit is notarized by Curtis Smith under the heading "SUBSCRIBED and SWORN to before me by said AFFIANT on this 28 day of September, 2009." After McIntosh faxed the affidavit to the magistrate, the magistrate faxed the signed search warrant to the officer. The warrant was executed and the lab results showed appellant had a 0.19 percent blood alcohol concentration. The Texas Code of Criminal Procedure provides that, before a warrant may issue, a sworn affidavit .setting forth substantial facts establishing probable cause. must be filed. Tex. Code Crim. Proc. Ann. art. 18.01(b) (West Supp. 2011). The court of criminal appeals has observed that the purpose of the 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 v. State, 207 S.W.3d 787, 790 (Tex. Crim. App. 2006). A reasonable test to determine if a statement is a proper oath is whether the statement would subject the person to a charge of perjury. Vaughn v. State, 177 S.W.2d 59, 60 (Tex. Crim. App. 1943); see also Smith, 207 S.W.3d at 790 n. 13 (a proper oath "creat[es] liability for perjury"). Smith is an official authorized to administer oaths. See Tex. Gov't Code Ann. § 602.002(5) (West Supp. 2011) ("[a]n oath made in this state may be administered and a certificate of fact given by . . . a notary public"). Furthermore, so long as a document contains a recital that it was made under oath, the declarant is subject to perjury. See Tex. Pen. Code § 37.07(b) (West 2003). McIntosh's affidavit subjects him to perjury and is a properly sworn affidavit. The search warrant is not invalid merely because the affidavit was not sworn to in the physical presence of the magistrate. See Hughes v. State, 334 S.W.3d 379, 388 (Tex. App.-Amarillo 2011, no pet.) (affidavit need not necessarily be sworn to in presence of magistrate as long as sworn to before an officer authorized to administer oaths). Appellant also argues that the search warrant affidavit is deficient because McIntosh did not list his qualifications, and the allegations in the affidavit were conclusory. A search warrant affidavit 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. Illinois v. Gates, 462 U.S. 213, 238 (1983). In determining whether there was probable cause to issue the warrant, reviewing courts should consider whether there were sufficient facts, coupled with inferences from those facts, to establish a fair probability that evidence of a particular crime will likely be found at the specified location. Rodriguez v. State, 232 S.W.3d 55, 62 (Tex. Crim. App. 2007). The affidavit in the present case states that the affiant, McIntosh, is a police officer in Wylie and is assigned as a field training officer. It further states that McIntosh has five years of experience as a police officer. McIntosh attests that, "on or about" September 28, 2009, at approximately 0021 hours, he was sitting in a marked police vehicle at the 700 block of County Club Road, facing northbound, when he saw a black Nissan SUV traveling southbound that did not have a front license plate. The vehicle also made a "wide right turn" and then "sped up to 54 mph in a marked 45 mph zone." McIntosh initiated a traffic stop of the vehicle and approached the driver. As he approached the driver's side window of the vehicle, McIntosh noticed that a white male was the only occupant. McIntosh asked the driver for his driver's license and insurance. As the driver began to look for his insurance, McIntosh "detected a moderate odor of an alcoholic beverage emitting from the interior of the vehicle." McIntosh "waited as the driver fumbled for his insurance card for several seconds." The driver handed McIntosh his driver's license, which identified the driver as appellant. McIntosh asked appellant "how much he has had to drink" and appellant said "he had a couple of beers." McIntosh then informed appellant "of the multiple reasons for the traffic stop." After "checking [appellant] through TCIC/NCIC," McIntosh asked him to step out of the vehicle. As McIntosh spoke to appellant at the rear of the vehicle, he "detected a strong odor of an alcoholic beverage coming from [appellant's] breath and person." Appellant said "he had consumed two beers and a glass of wine at a business in Dallas." McIntosh administered "standardized field sobriety tests" on appellant and "observed 6 clues during Horizontal Gaze Nystagmus and zero vertical nystagmus." McIntosh also "observed 3 clues during Walk and Turn, and 1 clue during One Leg Stand." Based on these observations, McIntosh arrested appellant for DWI. Appellant "was asked to provide a specimen of his breath and blood, which he refused." We conclude appellant has not established a deficiency in the search warrant affidavit. The affidavit states that McIntosh had five years of experience as a police officer and was a field training officer. The affidavit does not explain appellant's particular scores on the standardized field sobriety tests, but it states that appellant did not perform those tests correctly. The fact that the affidavit does not detail McIntosh's training or experience in DWI cases, or the results of the standardized field sobriety tests, does not render the affidavit inadequate. Based on the facts and reasonable inferences derived from those facts, the magistrate was justified in concluding there was a fair probability appellant had operated a motor vehicle while intoxicated and evidence of that crime would be found through a sample of appellant's blood. See, e.g., Hogan v. State, 329 S.W.3d 90, 94.96 (Tex. App.-Fort Worth 2010, no pet.) (affidavit was sufficient to establish probable cause where it described defendant as smelling strongly of alcohol, having bloodshot, watery, and heavy eyes, unsteady balance, and staggered walk); Foley v. State, 327 S.W.3d 907, 912 (Tex. App.-Corpus Christi 2010, no pet.) (affidavit was sufficient to establish probable cause where it reported the suspect smelled strongly of alcohol, had red and glassy eyes, slurred speech, poor balance, and refused to provide a breath or blood sample). Accordingly, the trial court did not err by denying appellant's motion to suppress We overrule appellant's issue. We affirm the trial court's judgment.