Opinion
NUMBER 13-16-00364-CR
05-03-2018
THE STATE OF TEXAS, Appellant, v. BRANDON OZUNA, Appellee.
On appeal from the 319th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellee Brandon Ozuna currently awaits trial for intoxication assault, a third-degree felony. See TEX. PENAL CODE ANN. § 49.07 (West, Westlaw through 2017 1st C.S.). Following his arrest, Ozuna filed a motion to suppress: (1) statements he made in response to police questioning; and (2) the result of a blood draw taken under a warrant. The trial court suppressed both pieces of evidence. This is the State's appeal from the trial court's ruling as to both items. We affirm in part and reverse and remand in part.
I. SUPPRESSION HEARING
The following evidence was presented at the suppression hearing. On April 4, 2014, at approximately 12:00 a.m., Officer Cortney Daggett responded to the scene of a two-car accident involving a motorcycle and a Toyota Tundra. The accident occurred on Interstate 37 in Corpus Christi. The motorcyclist was promptly transported to the hospital to be treated for a broken leg. Before approaching Ozuna, who was standing next to the Toyota Tundra, Officer Daggett completely closed off the highway as a safety precaution. Officer Daggett suspected that Ozuna was intoxicated, so he testified that he "placed" Ozuna in the backseat of his patrol unit and drove to a convenience store to conduct field sobriety testing under better lighting.
The record does not reveal the amount of time that elapsed between Officer Daggett arriving to the accident scene and making contact with Ozuna, what Officer Daggett told Ozuna before placing him in his patrol unit, whether Ozuna was handcuffed in the back of the police unit while en route to the convenience store, or exactly how far away from the accident scene the convenience store was located.
At 12:31 a.m., Officer Daniel Guajardo met Officer Daggett in the parking lot of the convenience store, as shown by the time-stamp on the dash-cam of his police unit. The dash-cam footage showed that, between 12:31 a.m. and 12:34 a.m., Officer Daggett briefed Officer Guajardo regarding information he obtained up to that point. The briefing occurred only a few feet away from Officer Daggett's police unit. Ozuna was sitting in the back seat of the police unit. The back door to the police unit was closed. However, the police unit's front door was conspicuously open for the entire duration of the briefing—apparently within earshot of Ozuna. Officer Daggett, gesturing toward his police unit, then stated:
[A]ccording to a number of witnesses . . . ., this guy was driving a Toyota Tundra. Apparently there was another truck and they were racing and somehow this guy clipped the guy in the motorcycle. His story (gesturing toward the police unit) is that . . . he got cut off, which is B.S., because . . .Officer Daggett then explained why he did not believe Ozuna's version of the accident, which indicates that Officer Daggett communicated with Ozuna at some point before Officer Guajardo took over the investigation.
At 12:34 a.m., Officer Guajardo opened the back door to the police unit and ordered Ozuna to step outside. Ozuna complied with Officer Guajardo's order and stepped out of the vehicle. Ozuna was not in handcuffs, but he can be seen using one hand to apply an ice pack to a laceration on his face. Before questioning Ozuna about the accident, Officer Guajardo stated: "We just wanted to get you off the highway man because . . . [its] dangerous . . . I don't think you want to get smacked and neither do I. . . We'd be in pieces on the highway. . . . What happened, [Ozuna]?" In response to Officer Guajardo's question, Ozuna explained that his vehicle hit a motorcycle on the highway while he attempted to avoid colliding with another truck that allegedly cut him off. After listening to Ozuna's version of what happened, Officer Guajardo stated: "You weren't racing anybody? We got witnesses that say you might have been racing another truck, [Ozuna]." After Ozuna denied the racing allegation, Officer Guajardo asked "How much have you had to drink tonight?" to which Ozuna responded "Three beers." Officer Guajardo continued to question Ozuna about what he drank and then performed a horizontal gaze nystagmus test (HGN).
Believing Ozuna to be intoxicated, Officer Guajardo arrested Ozuna for intoxication assault using handcuffs that he pulled from his police duty belt. The record shows that Ozuna was also arrested for reckless driving. Officer Guajardo requested Ozuna's consent for a blood specimen, and Ozuna refused. After Ozuna refused to give a blood specimen, Officer Guajardo applied for and obtained a blood search warrant, relying on some of the information he acquired while questioning Ozuna outside the convenience store.
As relevant here, Ozuna filed a motion to suppress two items: (1) his statements to Officer Guajardo—because they were made in response to police questioning while he was in custody and not preceded by warnings required under Miranda; and (2) the result of the blood draw—because the affidavit Officer Guajardo used to apply for the search warrant contained a false statement dubiously attributed to a supposed witness to the accident named "Steve Harris," and because it relied on statements Ozuna made during allegedly improper police questioning.
The trial court heard evidence in support of Ozuna's motion to suppress, including the dash-cam video and testimony from both Officer Daggett and Officer Guajardo. After the hearing, the trial court suppressed Ozuna's statements and the result of the blood draw. The trial court made the following findings and conclusions to support its ruling:
FINDINGS OF FACT
1. Specifically, the Court finds credible Officer Cortney Daggett's testimony that [he] was dispatched to a traffic accident on Interstate 37 on April 4, 2014.
2. The Court further finds credible Officer Cortney Daggett's testimony that [he] immediately had the highway shut down completely for safety before approaching Ozuna.
3. The Court further finds credible Officer Cortney Daggett's testimony that Ozuna was standing next to a Toyota Tundra when Officer Daggett first encountered him.
4. The Court further finds credible Officer Cortney Daggett's testimony that [he] did not observe Ozuna driving the Toyota Tundra.
5. The Court further finds credible Officer Cortney Daggett's testimony that [he] did not observe anyone inside the Toyota truck when [he] arrived at the scene.
6. The Court further finds credible Officer Cortney Daggett's testimony that [he] was not aware if there were multiple people inside the Toyota Tundra at the time of the accident.
7. The Court further finds credible Officer Cortney Daggett's testimony that [he] drove Ozuna to a nearby convenience store to have better lighting and conduct sobriety tests.
8. The Court further finds credible Officer Cortney Daggett's testimony that when [he] transported Ozuna to the convenience store he was not free to leave and was being detained.
9. The Court further finds credible Officer Daniel Guajardo's testimony that he first contacted Ozuna at the convenience store.
10. The Court further finds credible Officer Daniel Guajardo's testimony that Ozuna was detained and not free to leave when Ozuna was taken to the convenience store, before any questions began.
11. The Court further finds credible Officer Daniel Guajardo's testimony that he never read Ozuna his Miranda Warnings.
12. The Court further finds credible Officer Daniel Guajardo's testimony that he began investigating a crime and questioning Ozuna despite not reading Ozuna his Miranda warnings.
13. The Court further finds credible Officer Daniel Guajardo's testimony that the only standard field sobriety test administered to Ozuna was the horizontal gaze nystagmus field sobriety test.
14. The Court further finds credible Officer Daniel Guajardo's testimony that he then arrested Ozuna for intoxication assault and reckless driving.
15. The Court further finds credible Officer Daniel Guajardo's testimony that Officer Guajardo obtained a search warrant for a specimen of Ozuna's blood, which included his personal affidavit.
16. The Court further finds credible Officer Daniel Guajardo's testimony that Officer Guajardo did not have personal knowledge that Mr. Ozuna was driving a vehicle at the time of the accident.
17. The Court further finds credible Officer Daniel Guajardo's testimony that Officer Guajardo listed witness "Steve Harris" on the blood warrant affidavit, as the person who witnessed Mr. Ozuna driving.
18. The Court further finds credible Officer Daniel Guajardo's testimony that Officer Guajardo believed "Steve Harris" to be the name of the victim's father.
19. The Court further finds credible Officer Daniel Guajardo's testimony that Officer Guajardo did not speak to "Steve Harris" to determine if he had been a witness of Mr. Ozuna driving.
20. The Court further finds credible Officer Daniel Guajardo's testimony that he does not know if "Steve Harris" in fact witnessed Mr. Ozuna driving the vehicle, but indicated otherwise on his sworn affidavit to obtain a blood draw warrant.
21. The Court further finds credible Officer Daniel Guajardo's testimony that he did not indicate the address or phone number of "Steve Harris" in the spaces required on the sworn affidavit to obtain a blood draw warrant.
22. The Court further finds credible Officer Daniel Guajardo's testimony that the purpose of putting the witnesses' full information on the sworn affidavit is so that they may be contacted; yet he failed to provide that information.
23. The Court further finds credible Officer Daniel Guajardo's testimony that he provided the sworn affidavit to a magistrate, who relied upon it to issue the search warrant.
CONCLUSIONS OF LAW
1. The Court concludes that Brandon Ozuna was being detained and was not free to leave, yet had not been read his Miranda Warnings, at the time he was asked questions by the police which were designed to elicit an incriminating response, and that his answers to those questions were illegally obtained.
2. The Court concludes the blood results were illegally obtained because the blood draw warrant was invalid.
3. The Court further concludes that any evidence obtained after Mr. Ozuna's rights were violated, including statements, sobriety tests, obtaining a blood sample, and the blood test results, are fruit of the poisonous tree and should be suppressed.This State's appeal followed.
The trial court used the pronoun "she" to identify Officer Daggett throughout its factual findings. However, at the suppression hearing, the prosecutor referred to Officer Daggett as "sir."
We understand the trial court to be referring to Ozuna's Miranda rights.
The only sobriety test performed in this case was the HGN. However, the result of an HGN test is considered nontestimonial evidence for Fifth Amendment purposes and Miranda. See Clement v. State, 499 S.W.3d 153, 157 (Tex. App.—Fort Worth 2016, pet. ref'd); Campbell v. State, 325 S.W.3d 223, 233 (Tex. App.—Fort Worth 2010, no pet.). Therefore, to the extent that the trial court suppressed the result of the HGN test because of a Miranda violation, we reverse.
II. STATEMENTS
The State contends that the trial court erred in suppressing statements Ozuna made to Officer Guajardo because Ozuna was not in custody when he made them, and therefore, no right to be read Miranda warnings attached.
A. Applicable Law and Standard of Review
Statements made by a suspect during a custodial interrogation are inadmissible unless the suspect was given and validly waived his Miranda rights. See Herrera v. State, 241 S.W.3d 520, 537 (Tex. Crim. App. 2007). Here, the record undisputedly shows that Ozuna was not Mirandized before Officer Guajardo questioned him about racing and intoxication. Accordingly, Ozuna's statements are inadmissible if Ozuna was in custody at the time Officer Guajardo questioned him outside the convenience store. See id.
"A person is in custody only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest." See State v. Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013). Whether a person has been detained to the degree associated with an arrest is determined on an ad hoc, or case-by-case, basis. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). The Texas Court of Criminal Appeals has outlined at least four general situations that may constitute custody:
1. when the suspect is physically deprived of his freedom of action in any significant way,Saenz, 411 S.W.3d at 496.
2. when a law enforcement officer tells the suspect that he cannot leave,
3. when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted,
4. when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave.
With respect to the first three scenarios listed above, the restriction upon freedom of movement "must amount to the degree associated with an arrest as opposed to an investigative detention." Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). The distinction between an "arrest" and an "investigative detention" will often depend upon several factors, including "the amount of force displayed by the officer, the duration of a detention, the efficiency of the investigative process and whether it is conducted at the original location or the person is transported to another location, the officer's expressed intent—that is, whether he told the detained person that he was under arrest or was being detained only for a temporary investigation, and any other relevant factors." State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008). "If the degree of incapacitation appears more than necessary to simply safeguard the officers and assure the suspect's presence during a period of investigation, this suggests the detention is an arrest." Id. Furthermore, "[w]hat begins as a noncustodial detention . . . may become a custodial arrest as a result of police conduct during the encounter." Rodriguez v. State, 191 S.W.3d 428, 477 (Tex. App.—Corpus Christi 2006, pet. ref'd).
In the fourth scenario listed above, the officer's knowledge of probable cause must be communicated or otherwise manifested to the suspect. Id. Custody is then established "if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest." Id.
The ultimate legal determination of whether Ozuna was in custody requires this Court to take the facts, as assessed for weight and credibility by the trial court, and then to make a legal determination as to whether those facts amount to custody under the law. Saenz, 411 S.W.3d at 494.
B. Analysis
In view of the foregoing authority, the question is whether Ozuna was in custody at the convenience store. More specifically, the issue is whether a reasonable person in Ozuna's position would have believed, prior to the time he was formally arrested by Officer Guajardo, that his freedom of movement was restrained to the degree associated with a formal arrest as opposed to a mere investigative detention. To resolve this issue, we must determine whether the evidence, as assessed for weight and credibility by the trial court, triggered any of the four custody scenarios listed above.
Initially, we observe that the second custody scenario is simply not triggered on these facts because no officer expressly told Ozuna he was not free to leave. See id. at 496 (observing that a suspect is in custody when a law enforcement officer tells the suspect that he cannot leave). However, we conclude that the facts triggered the first, third, and fourth custody scenarios, as explained below.
1. First and Third Custody Scenarios—i.e., Physical or Officer-Created Restriction on Freedom of Movement
Here, Officer Daggett testified that he "placed" Ozuna in the backseat of his police unit and transported him away from the accident scene. This testimony supports a finding that Ozuna was forced, either physically or in deference to Officer Daggett's authority, to be transported away from the original location where Officer Daggett encountered him—a factor relevant to the custody determination. See Sheppard, 271 S.W.3d at 29 (observing that transporting the suspect away from the original location is a factor relevant to custody determination). Moreover, at the point when questioning commenced, Ozuna had been subject to Officer Daggett's supervision for approximately thirty-four minutes—another factor relevant to the custody determination. See id. (observing that the duration of the detention is relevant to custody determination). Ozuna also apparently overheard Officer Daggett say that witnesses saw Ozuna racing on the highway and that Ozuna's version as to how the accident occurred was "B.S." Then, prior to questioning about alcohol, Officer Guajardo told Ozuna that witnesses saw him racing on the highway. In our view, the sum total of these facts—placing Ozuna in the backseat of a police unit and transporting him away from the accident scene, waiting thirty-four minutes to engage in questioning about the accident, calling Ozuna's version of the accident "B.S.," and finally confronting Ozuna with information that witnesses saw him racing on the highway—supports a finding that Officers Daggett and Guajardo physically restrained Ozuna's freedom of movement to the degree associated with an arrest or, at the very least, created a situation in which Ozuna reasonably believed that his freedom of movement had been significantly restrained. See id.
The State points out that Ozuna was not handcuffed prior to or during questioning. While it is true that Ozuna was not handcuffed, the State provides no authority indicating that handcuffs are necessary to a finding of custody when the facts otherwise trigger a custody scenario, and we find none. Instead, the determination of custody turns on the totality of the objective circumstances surrounding the interrogation. See Stansbury v. California, 511 U.S. 318, 323 (1994).
We further note that this Court's precedent in Rodriguez v. State supports our decision today to uphold the trial court's ruling. 191 S.W.3d at 444. In Rodriguez v. State, this Court held that the investigative detention of an intoxication assault suspect escalated into a custodial interrogation, for purposes of Miranda, when an officer transported him away from the accident scene to the police station for field sobriety testing even though testing could have been performed just as safely at the accident scene. Id. Although the destination in this case was a convenience store rather than a police station, the salient fact common to both cases is that a suspect was transported away from an accident scene to another location when testing or further investigation could have been safely performed at the scene. See id. Here, Officers Daggett and Guajardo proffered safety as the reason for transporting Ozuna away from the accident scene, but, as in Rodriguez v. State, "there was no evidence in the record that conducting a field sobriety test at the scene would have presented a significant safety risk." Rodriguez, 191 S.W.3d at 444. To the contrary, the trial court specifically found that Officer Daggett "immediately had the highway shut down completely for safety before approaching Ozuna." This uncontroverted fact is legally significant to the custody determination because, by transporting Ozuna away from an already safe scene, officers restrained Ozuna's freedom of movement to a degree that appeared more than necessary to safeguard themselves and to assure Ozuna's presence during the period of investigation. See Sheppard, 271 S.W.3d at 291 (observing that "[i]f the degree of incapacitation appears more than necessary to simply safeguard the officers and assure the suspect's presence during a period of investigation, this suggests the detention is an arrest"); Rodriguez, 191 S.W.3d at 444.
We conclude that the evidence, as assessed for weight and credibility by the trial court, triggered the first and third custody scenarios. However, the trial court could have just as correctly found that the facts triggered the fourth custody scenario, as explained below.
2. Fourth Custody Scenario—i.e., Knowledge of Probable Cause is Manifested to a Suspect Who is Not Told that He is Free to Leave
Neither Officer Daggett nor Officer Guajardo ever told Ozuna that he was free to leave. The question is whether the officers ever manifested to Ozuna knowledge of probable cause to arrest him.
As heard and seen on the dash-cam video, Officer Daggett told Officer Guajardo—apparently within Ozuna's earshot—that witnesses saw Ozuna racing, and Officer Guajardo then directly confronted Ozuna with this information prior to questioning about alcohol. This information was manifested to Ozuna after he had already been transported away from the accident scene. Furthermore, in its fourteenth finding, the trial court specifically found that Ozuna was arrested for, among other offenses, "reckless driving." Based on this evidence, we conclude that Officers Daggett and Guajardo manifested to Ozuna knowledge of probable cause to arrest him for racing on a highway, see TEX. TRANSP. CODE ANN. § 545.420(a) (West, Westlaw through 2017 1st C.S.), and reckless driving, see id. § 545.401(a)—thus triggering the fourth custody scenario.
State v. Ortiz, 382 S.W.3d 375 (Tex. Crim. App. 2012) (observing that because the officer announced, within the appellee's earshot, that the officer found "something" that might implicate appellee in a crime, it could properly constitute an objective factor in the custody determination).
We need not consider whether Officers Daggett or Guajardo manifested knowledge of probable cause to arrest Ozuna for any intoxication-related offense because the record shows that they, by word and by deed, had already manifested probable cause to arrest Ozuna for racing on a highway and reckless driving. See TEX. TRANSP. CODE ANN. § 545.420(a) (West, Westlaw through 2017 1st C.S.); see also id. § 545.401(a).
3. Summary
We hold that the facts trigger the first, third, and fourth custody scenarios. Because Ozuna was not read his Miranda rights prior to questioning, the trial court was correct to suppress his statements to Officer Guajardo at the convenience store. The State's issue on appeal is overruled to the extent that the trial court suppressed Ozuna's unwarned statements.
III. BLOOD DRAW WARRANT
We next consider the State's argument that the trial court erred in suppressing the result of the blood draw.
A. Applicable Law and Standard of Review
The Texas Code of Criminal Procedure provides that a search warrant must be supported by a "sworn affidavit setting forth substantial facts establishing probable cause . . . ." TEX. CODE CRIM. PROC. ANN. art. 18.01(b) (West, Westlaw through 2017 1st C.S.). Probable cause exists when, under the totality of the circumstances, there is a fair probability or substantial chance that contraband or evidence of a crime will be found at the specified location. Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013) (noting that probable cause "is a flexible and nondemanding standard"). To establish probable cause, an officer can rely on information gained through other officers over the course of an investigation. See Gonzales v. State, 481 S.W.3d 300, 312 (Tex. App.—San Antonio 2015, no pet.).
In evaluating whether an affidavit establishes probable cause for a search warrant, the trial court "is constrained to the four corners of the affidavit" and makes no credibility determinations. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). In reviewing the decision to issue a warrant, "we apply a highly deferential standard because of the constitutional preference for searches to be conducted pursuant to a warrant as opposed to a warrantless search." Id. "As long as the magistrate had a substantial basis for concluding that probable cause existed, we will uphold the magistrate's probable cause determination." Id.
However, we do not apply this highly deferential standard when the defendant establishes that the person who prepared the affidavit intentionally, knowingly, or recklessly made false statements to procure the search warrant. In Franks v. Delaware, the United States Supreme Court held:
[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.438 U.S. 154, 155-56 (1978). Under Franks, a misstatement in an affidavit that is merely the result of simple negligence or inadvertence, as opposed to reckless disregard for the truth, will not render invalid the warrant based on it. Id. at 171. "To prove reckless disregard, a defendant must show that the affiant in fact entertained serious doubts about the truth of his allegations." Olivarri v. State, 838 S.W.2d 902, 904 n.1 (Tex. App.—Corpus Christi 1992, no pet.) (citing United States v. Williams, 737 F.2d 594, 602 (7th Cir. 1984)).
"When part of a warrant affidavit must be excluded from the [probable cause] calculus, . . . then it is up to the reviewing courts to determine whether 'the independently acquired and lawful information stated in the affidavit nevertheless clearly established probable cause.'" State v. Cuong Phu Le, 463 S.W.3d 872, 876-77 (Tex. Crim. App. 2015). A search warrant based in part on tainted information is nonetheless valid if it clearly could have been issued on the basis of the untainted information in the affidavit. Brown v. State, 605 S.W.2d 572, 577 (Tex. Crim. App. 1980), overruled on other grounds by Hedicke v. State, 779 S.W.2d 837 (Tex. Crim. App. 1989).
B. Analysis
A person commits the offense of driving while intoxicated (DWI) if he is "intoxicated while operating a motor vehicle in a public place." TEX. PENAL CODE ANN. § 49.04(a) (West, Westlaw through 2017 1st C.S.). The issue is whether Officer Guajardo's search-warrant affidavit supplied probable cause that Ozuna committed this offense. We discuss the driving element and intoxication element of DWI separately below.
We will assume, without deciding, that Ozuna's unwarned statements to Officer Guajardo at the convenience store—i.e., the subject of Part II of this opinion—must be removed from the affidavit in determining whether probable cause existed to issue the warrant. But see United States v. Patane, 542 U.S. 630, 643 (2004); Baker v. State, 956 S.W.2d 19, 22 (Tex. Crim. App. 1997); see also Lopez v. State, No. 13-13-00307-CR, 2015 WL 5602278, at *5 (Tex. App.—Corpus Christi June 25, 2015, pet. ref'd) (mem. op., not designated for publication). Thus, our review encompasses all factual assertions contained in Officer Guajardo's affidavit, minus those relating to what Ozuna said at the convenience store in response to police questioning.
1. Driving Element
It is undisputed that neither Officer Guajardo nor Officer Daggett witnessed the accident or saw Ozuna driving. To establish the driving element of DWI, Officer Guajardo stated in the affidavit that a witness named "Steve Harris" told him that Harris observed Ozuna operating a motor vehicle in a public place. The fact that a witness saw Ozuna operating a motor vehicle in a public place demonstrates probable cause to satisfy the driving element. See id.; see also Mack v. State, No. 14-03-00036-CR, 2004 WL 524879, at *2 (Tex. App.—Houston [14th Dist.] Mar. 18, 2004, no pet.) (mem. op., not designated for publication) (holding that the evidence was sufficient to prove driving-element of DWI based on witness who testified that he saw defendant driving).
This would be the end of the discussion if it were not for the fact that the trial court appears to have permitted Ozuna to conduct an impromptu Franks hearing while cross-examining Officer Guajardo about his reference to Steve Harris in the affidavit. Therefore, we must consider whether Ozuna proved a Franks violation with respect to Officer Guajardo's reference to Steve Harris. If Ozuna proved a Franks violation, then any reference to what Steve Harris allegedly saw cannot be used to satisfy the driving element of DWI.
We note that Ozuna's written motion to suppress did not expressly reference Franks as a basis to suppress the blood draw. However, the record shows that the issue was litigated at the suppression hearing without any objection from the State. The record also shows that the trial court considered arguments by both sides on the Franks issue before suppressing the blood draw. Finally, on appeal, the State addresses the substance of the Franks issue without arguing that relief under Franks could not have been granted on the basis that Ozuna failed to specifically allege a Franks violation in his written motion to suppress. Under these circumstances, it is only appropriate to conclude that Franks constitutes a theory of law applicable to the case, the substance of which we must address to determine whether the trial court's ruling as to the blood draw may be affirmed based on it. See State v. Esparza, 413 S.W.3d 81, 85 (Tex. Crim. App. 2013) (recognizing that an appellate court must uphold a trial court ruling that is reasonably supported by the record and is correct under any theory of law applicable to the case); see also Taylor v. State, 863 S.W.2d 737, 738 (Tex. Crim. App. 1993); McKinney v. State, No. 05-05-01584-CR, 2007 WL 49668, at *14 (Tex. App.—Dallas Jan. 9, 2007, pet. ref'd) (mem. op., not designated for publication).
a. Franks
To establish a Franks violation in this case, Ozuna had the burden to prove: (1) a person named Steve Harris did not actually see Ozuna driving; and (2) Officer Guajardo acted intentionally or with reckless disregard for the truth when he stated otherwise in his affidavit. See Franks, 438 U.S. at 155-56. To make this showing, Ozuna elicited the following testimony from Officer Guajardo on cross-examination:
Q. [You] name a witness who you say saw Mr. Ozuna by the name of Steve Harris?
A. Right.
Q. Who is Steve Harris?
A. The—
Q. I mean, I—I'm sorry, go ahead.
A. I think that's the Defendant—I mean, the—the victim's father.
Q. Did you speak to Mr. Harris?
A. No, I did not.
Q. Okay. So you don't know if Mr. Harris was a witness to the accident, do you?
A. I was—I was told that he was.
Q. So, were you—so this is based on something somebody told you?
A. Right.
Q. Not based on your investigation?
A. No. I mean, through the investigation they said a witness was also following the victim—
Q. Okay.
A. —that witnessed the accident.
Q. But would you agree with me that not only do you not have personal knowledge of Mr. Ozuna driving the vehicle, but you don't have any personal knowledge of Mr. Harris having personal knowledge of Mr. Ozuna driving the vehicle?
A. What was the last part again?
Q. You don't know with certainty, you can't testify here today that you know that Mr. Harris observed the accident, because you didn't speak to Mr. Harris; is that correct?
A. Right, I didn't speak to Mr. Harris.
Q. But you indicated otherwise on your affidavit; is that correct?
A. Yes, I did.
The trial court did not specifically find that a Franks violation occurred. More subtly, the trial court purported to address the Franks issue in findings seventeen through twenty, in which the court states:
(17) [Officer Guajardo] listed witness 'Steve Harris' on the blood warrant affidavit, as the person who witnessed Mr. Ozuna driving;
(18) [Officer Guajardo] believed 'Steve Harris' to be the name of the victim's father;
(19) [Officer Guajardo] did not speak to 'Steve Harris' to determine if he had been a witness of Mr. Ozuna driving; and
(20) [Officer Guajardo] [did] not know if 'Steve Harris' in fact witnessed Mr. Ozuna driving the vehicle, but indicated otherwise on his sworn affidavit to obtain a blood draw warrant.
Officer Guajardo's testimony excerpted above supports the trial court's findings, but that is the most we can say about the findings. Neither the trial court's findings nor Officer Guajardo's testimony address the dispositive issues for purposes of establishing a Franks violation in this case—i.e., whether Steve Harris in fact saw Ozuna drive and, if not, whether Officer Guajardo's statement to the contrary in his affidavit was at least made with reckless disregard for the truth. In fact, none of the evidence adduced at the suppression hearing responds to these issues. For example, Ozuna did not introduce evidence establishing that Steve Harris could not have witnessed the accident, nor did Ozuna question Officer Guajardo as to the identity of the person who told him about Steve Harris, whether Officer Guajardo believed the source to be reliable, or whether Officer Guajardo "entertained serious doubts" that Steve Harris witnessed the accident. See Olivarri, 838 S.W.2d at 904 n.1.
Based on the record before us, we cannot say that Ozuna satisfied his burden to prove that Officer Guajardo's statement concerning Steve Harris was false, or that if false, it was the result of more than simple negligence on Officer Guajardo's part.
We are mindful of the fact that Officer Guajardo misstated the source of his knowledge regarding Steve Harris in his affidavit—that is, the affidavit states that he spoke directly to Steve Harris when, in fact, he admitted at the suppression hearing that someone else told him about Steve Harris. However, we cannot say that the record supports a finding that Officer Guajardo made this misstatement intentionally or with reckless disregard for the truth. Instead, the evidence showed that Officer Daggett briefed Officer Guajardo at the convenience store about possible witnesses to the accident, which may or may not have included mention of Steve Harris. See Gonzales v. State, 481 S.W.3d 300, 312 (Tex. App.—San Antonio 2015, no pet.) (finding no Franks violation when affiant-officer in a multiple-officer investigation misstated that he personally spoke to a witness because such misstatement could have reasonably been attributed to mere negligence, not reckless disregard for truth). Given the record before us, and the fact that more than one officer gathered information about the accident, we conclude that Ozuna failed to establish a Franks violation. See id.
b. Summary
We conclude that Ozuna failed to prove a Franks violation with respect to Officer Guajardo's reference to Steve Harris. Because no violation under Franks occurred, we need not remove Steve Harris from the probable cause equation. As stated above, the fact that Steve Harris allegedly saw Ozuna operating a motor vehicle in a public place demonstrates probable cause to satisfy the driving element of DWI. See TEX. PEN. CODE ANN. § 49.04(a); see also Mack, 2004 WL 524879, at *2.
Even if we were to find that Officer Guajardo made the challenged statement in the affidavit with at least reckless disregard for the truth, we would nevertheless conclude that the search warrant is valid because the remaining facts in the affidavit were clearly sufficient to establish probable cause. See Franks, 438 U.S. at 155-56. Specifically, the affidavit states the following facts to satisfy the driving element of DWI:
On 4/4/2014, at approximately 11:56, I, Guajardo was dispatched to 5100 IH 3 in reference to a major traffic accident. Dispatch advised that a vehicle struck a motorcycle on the highway. Officers detained (OF) Brandon Ozuna on scene. . . .We would conclude that it was reasonable for the magistrate to infer that Ozuna was the driver based on the fact that officers "detained" Ozuna at the scene of the accident.
2. Intoxication Element
We now review the four corners of the affidavit and ask whether the magistrate could have reasonably concluded that there was probable cause to satisfy the intoxication element of DWI. Regarding intoxication, the affidavit states: (1) Ozuna was detained at the scene of the accident; (2) Officer Guajardo's training includes "detection and recognition of persons who are intoxicated"; (3) Ozuna displayed "red glassy eyes," emitted a "strong" odor of alcohol, and "swayed" balance; and (4) Ozuna showed six out of a possible six clues of intoxication on the HGN test. Officer Guajardo's affidavit concludes by stating: "I have seen intoxicated persons on many occasions in the past. Based on all of the above and my experience and training, I determined that [Ozuna] was intoxicated." Mindful of the highly deferential standard applied in reviewing the sufficiency of an affidavit supporting a search warrant, we conclude that these facts were sufficient to establish probable cause that Ozuna was intoxicated. See, e.g., Foley v. State, 327 S.W.3d 907, 912 (Tex. App.—Corpus Christi 2010, pet. ref'd) (finding magistrate did not err in issuing a search warrant for a blood specimen, even disregarding results of field sobriety tests, where officer's affidavit established that appellant "smelled strongly of alcohol, had red and glassy eyes, slurred speech, poor balance, . . . refused to provide a breath or blood sample," and admitted to driving); see also McLain, 337 S.W.3d at 271.
The State's issue on appeal is sustained to the extent that the trial court suppressed the result of the blood draw.
IV. CONCLUSION
We affirm the trial court's decision to suppress Ozuna's statements to Officer Guajardo at the convenience store. However, we reverse the trial court's decision to suppress the result of the blood draw and HGN test. The case is remanded for further proceedings consistent with this opinion.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 3rd day of May, 2018.