IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT DALLAS, TEXAS. ROBERT JACKSON CRIDER Appellant APPEAL NUMBER VS CR

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1 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT DALLAS, TEXAS ROBERT JACKSON CRIDER Appellant APPEAL NUMBER VS CR STATE OF TEXAS (ORAL ARGUMENT REQUESTED) Appellee On Appeal from County Court Number Five of Collin County, Texas No Appellant s Brief RONALD L. GORANSON 2828 Routh Street Suite 850 Dallas, Texas (214) (214) (fax) State Bar No ATTORNEY FOR APPELLANT

2 Identity of Parties and Counsel Appellant Appellant s Counsel Appellant s Trial Counsel State of Texas Trial Attorneys Robert Jackson Crider RONALD L. GORANSON 2828 Routh Street Suite 850 Dallas, Texas (214) (214) (fax) State Bar No MS. DEBORAH HARRISON State Bar No MS. ANGELA TUCKER State Bar No Daniel, Tucker & Harrison, PLLC 1515 Heritage Drive, Suite 104 McKinney, Texas75069 (214) (214) (fax) Collin County District Attorneys Office MS. KERRIE E. WALKER Assistant District Attorney State Bar No MS. SHANNON EDWARDS Assistant District Attorney State Bar No North Graves Street, Suite 200 McKinney, Texas (972) (972) (fax) Appellate Attorney JOHN ROLLATER, Assistant District Attorney, Appellant Division Collin County District Attorney s Office 2100 Bloomdale Road, Suite 324 McKinney, Texas (972) (972) (fax) Appellant Crider s Brief Page ii

3 Table of Contents STATEMENT OF THE CASE...1 POINTS OF ERROR STATEMENT OF THE FACTS...2 SUMMARY OF THE ARGUMENT POINT OF ERROR 1 The officer s affidavit for a search warrant does not state the time of the arrest or any of the observed facts used as grounds for probable cause. Without the times, there can be no determination of recent probable cause, a requirement for a valid search warrant CONCLUSION...25 CERTIFICATE OF SERVICE...26 CERTIFICATE OF COMPLIANCE...27 EXHIBIT #1.28 Appellant Crider s Brief Page iii

4 Index of Authorities CASES: Bagheri v. State, 87 S.W.3d 657 (Tex.App.-San Antonio 2002) Blumenstetter v. State, 135 S.W.3d 234, 243 (Tex. App. Texarkana 2004, no pet.) Burke v. State, 27 S.W.3d 651, 654 (Tex. App.--Waco 2000, pet. ref'd) Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000) Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1984)... 16, 20 Comeaux, 818 S.W.2d 46, 53 (Tex. Crim. App. 1991) Dees v. State, 722 S.W.2d 209, 215 (Tex. App.--Corpus Christi 1986, pet. ref'd) Escamilla v. State, 556 S.W.2d 796, 799 (Tex. Crim. App. 1977) Guerra v. State, 860 S.W.2d 609, 611 (Tex. App. Corpus Christi 1993, pet. ref d) Guerra v. State, 860 S.W.2d 609, 611 (Tex. App. Corpus Christi 1993, pet. ref'd) Guevara v. State, 152 S.W.3d 45 (Tex.Crim.App. 2004) Hafford v. State, 989 S.W.2d 439, 440 (Tex. App. Houston [1st Dist.] 1999, pet. ref d)... 16, 17 Heredia v. State, 468 S.W.2d 833, 835 (Tex. Crim. App. 1971) Hughes v. State, 843 S.W.2d 591, 593 (Tex. Crim. App. 1992) Imo v. State, 816 S.W.2d 474, 478 (Tex. App.--Texarkana 1991, pet. ref'd) Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992) Keen v. State, 626 S.W.2d 309, 312 (Tex. Crim. App. 1981) Lockett v. State, 879 S.W.2d 184, 189 (Tex. App. Houston [14th Dist.] 1994, pet. ref d) Lopez v. State, 535 S.W.2d 643, 648 (Tex. Crim. App. 1976) Appellant Crider s Brief Page iv

5 Mata v. State, 46 S.W.3d 902 (Tex.Crim.App. 2001) McKissick v. State, 209 S.W.3d 205, 214 (Tex. App. Houston [1st Dist.] 2006, pet. ref'd) Morris v. State, 63 S.W.3d 817, 822 (Tex. App.--Waco 2001, no pet.) Muniz v. State, 264 S.W.3d 392, 396 (Tex. App. Houston [1st Dist.] 2008, no pet.) Oubre v. State, 542 S.W.2d 875, 877 (Tex. Crim. App. 1976) Peltier v. State, 626 S.W.2d 30, 32 (Tex. Crim. App. 1981) Ramos v. State, 124 S.W.3d 326, 331 (Tex. App. Fort Worth 2003, pet. ref'd) Robuck v. State, 40 S.W.3d 650, 654 (Tex. App.--San Antonio 2001, pet. ref'd) Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) Rowell v. State, 14 S.W.3d 806, 809 (Tex. App. Houston [1st Dist.] 2000), aff d, 66 S.W.3d 279 (Tex.Crim.App. 2001)... 16, 17 Sanders v. State, 191 S.W.3d 272 (Tex. App. Waco 2006)(cert. denied 549 U.S. 1167, 127 S.Ct. 1141, 166 L.Ed.2d 893 (2007) Schmerber v. California, 384 U.S. 757, 767 (1966) Schmerber v. Calilfornia, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834 (1966) Schmidt v. State, 659 S.W.2d 420, 421 (Tex. Crim. App. 1983) Serrano v. State, 123 S.W.3d 53, 60 (Tex. App. Austin 2003, pet. ref'd) Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed State v. Dugas, (Tex. App. Houston 14 th, # decided 07/28/09) State v. Johnston, S.W.3d (Tex. App. - Ft. Worth, # CR, 11/05/09) State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002) State v. Stone, 137 S.W.3d 167, 178 (Tex. App. Houston [1st Dist.] 2004, pet. ref d) Appellant Crider s Brief Page v

6 Tolentino v. State, 638 S.W.2d 499, 501 (Tex. Crim. App. 1982) United States v. Spikes, 158 F.3d 913, 923 (6th Cir.1998) Wachter v. State, 961 S.W.2d 598, 600 (Tex. App.--San Antonio 1997, pet. ref'd) Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) Wynn v. State, 996 S.W.2d 324, 326 (Tex. App.--Fort Worth 1999, no pet.) STATUTES: Article 1, 9 of the Texas Constitution... 2, 20 Article of the Code of Criminal Procedure... 2, 10 Fourth Amendment of the United States Constitution... 2, 10 Rule 44.2(b) of the Rules of Appellate Procedure Tex. Code Crim. Proc. Ann. art (c) (Vernon Supp. 2007) Tex. Code Crim. Proc. Ann. art (10) (Vernon 2005) Tex. Code Crim. Proc. Ann. arts. 1.06, 18.01(b) (West 1977 & Supp. 2003) Tex. Const. art. I, Tex. Penal Code, 49.04(a)... 1 U.S. Const. amends. IV, XIV Appellant Crider s Brief Page vi

7 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT DALLAS, TEXAS ROBERT JACKSON CRIDER Appellant APPEAL NUMBER VS CR STATE OF TEXAS (ORAL ARGUMENT REQUESTED) Appellee On Appeal from County Court Number Five of Collin County, Texas No Statement of the Case: Appellant s Brief On July 14, 2008, an information was filed charging the Appellant ROBERT JACKSON CRIDER with the offense commonly called DWI. (R. 04). See Tex. Penal Code, 49.04(a), a class B misdemeanor. A hearing was held on October 24, 2008 on a Motion to Suppress. The motion was denied on November 18, (R. 01 Docket Sheet, 18). The Appellant pled not guilty. A jury trial was held May 6, 7 and 8, (R Docket Sheet). On May 8, 2009 the jury convicted Appellant. The trial court assessed punishment at 90 days in jail probated for 12 months and a fine of $ (and other conditions of probation standard in DWI cases). (R. 02 Docket Sheet and 157; SF Vol. 5, p. 34). A Motion for New Trial

8 was filed timely on June 2, (R. 165). A hearing was set for July 17, (R. 166) The Motion for New Trial was overruled by operation of law on July 22, Notice of Appeal was timely filed on August 5, (R. 167). The cause is properly before this Court of Appeals. Point of Error: 1. The affidavit for the search warrant failed to establish recent probable cause, contrary to Article of the Code of Criminal Procedure, Article 1, 9 of the Texas constitution and the Fourth Amendment of the United States Constitution. Statement of Facts: Motion to Suppress Evidence State s Evidence Sgt. Anthony Henderson, Wylie Police Department testified that on June 6, 2008 he was a patrol sergeant (SF. Vol. 2, pp. 3-4). Just prior to midnight he was parked on East FM 544, just north of Vinson Road. (SF. Vol. 2, p. 5). He observed a white 4-door Lincoln Continental, traveling North on Vinson Road, approach the Y intersection of FM 544, Vinson Road and County Line Road (SF. Vol. 2, pp 5-6). The vehicle failed to use a turn signal as it turned left (onto Appellant Crider s Brief Page 2

9 FM 544) (SF. Vol. 2, p. 7). 1 Sgt. Henderson turned his vehicle around and made a traffic stop for not properly signaling a turn. (SF. Vol. 2, p. 7). The officer identified the appellant as the driver. (SF. Vol. 2, p. 8). He determined Appellant was intoxicated and placed him under arrest ((SF. Vol. 2, p. 13). He took Appellant to the Wylie Police Department (SF. Vol. 2, p. 13), where Appellant refused to take the breath test. (SF. Vol. 2, p. 14). The officer then typed up an affidavit for a blood warrant. The affidavit was identified and introduced as State s Exhibit 1 (Attached to this Brief as Exhibit 1, pp ). (SF. Vol. 2, p. 14, 18; State s Exhibit, tab 1). 1 The portion of the affidavit to establish probable cause stated: The affiant, Sgt A Henderson is currently employed as a police officer for the City of Wylie. Your affiant is assigned as a PATROL OFFICER. Your Affiant has been employed as a police officer for 9 years and states that: On or about , I, Sgt A Henderson was stationary at the three way intersection of s/b R FM 544, Vinson Rd. and County Line Rd. when I observed suspect vehicle make a left turn onto n/b E FM 544 from Vinson Rd. without signaling. I initiated a traffic stop at E FM 544 and Cedar Point. Upon making contact, the driver identified themselves verbally as CRIDER, ROBERT JACKSON II. I detected a strong odor of alcoholic beverage, bloodshot eyes and his speech was thick tounged. During Standardized field sobriety testing, I observed Defendant s Exhibit 1, attached to SF. Vol. 3 is a photo showing the intersection, an inverted Y in the photograph. FM 544 is the black road going from top to bottom. The officer was on the left side of the photo, facing the bottom. Vinson Road is the road on the left of the inverted Y. County line Road is on the right of the inverted Y. See also State s Exhibit 1 at R. 69). Appellant Crider s Brief Page 3

10 4 clues during Horizontal Gaze Nystagmus, and CRIDER, ROBERT JACKSON II, refused to perform the One Leg Stand Test and The Walk and Turn test. While speaking with CRIDER, ROBERT JACKSON II outside his vehicle I observed him swaying heavily. Based on these observations, the defendant CRIDER, ROBERT JACKSON II was arrested for driving while intoxicated. Defendant, CRIDER, ROBERT JACKSON II was asked to give a breath specimen, which they refused. I have good reason to believe and do believe that defendant, CRIDER, ROBERT JACKSON II in the City of Wylie, COLLIN county, Texas then and there did commit the offense of DRIVING WHILE INTOXICATED. Furthermore, I have good reason to believe and do believe that under the laws of the State of Texas, the following described property and items to wit: Blood from the person of said defendant will constitute evidence of the commission of the offense of DRIVING WHILE INTOXICATED. I am hereby requesting a warrant to obtain a blood specimen from said defendant. The blood specimen will be sent to an approved laboratory for analysis of blood alcohol concentration. Affiant s knowledge of the facts of this case was obtained by reviewing Wylie Police Department offense report # , filed by PATROL SERGEANT Sgt A Henderson and the statements of witness: and statements interview of the defendant, CRIDER, ROBERT JACKSON II and personal observations of the affiant. The witness signed the application on June 7, Sgt. Henderson stated that he faxed the application for the blood warrant to Judge Wilson. SF Vol. 2, p. 15). At 1:07 am on June 7 he received a response from the judge. (SF. Vol. 2, p. 15). After receiving the blood warrant back from the judge, Appellant was taken to Baylor Garland Hospital for the blood draw. (SF. Vol. 2, p. 16). He stated that Appellant Crider s Brief Page 4

11 they get the sample quickly because they want to get the specimen as close to the time of the traffic stop as possible. (SF Vol. 2, p. 16). On cross examination the witness identified Defense Exhibit #1 as being similar to the intersection. The exhibit was admitted by the court. (SF. Vol. 2, pp ). Sgt. Henderson stated that when the Appellant turned from Vincent Road onto FM 544, there was no other traffic. (SF. Vol. 2, p. 30). He identified Defendant s Exhibits 2 through 7 as photographs of the intersection. (SF. Vol. 2, p. 32, admitted at p. 33). He stated that from where he was parked he could see the intersection. (SF. Vol. 2, p. 38). He also stated on cross that the affidavit for the blood warrant was faxed to the judge and the judge faxed it back. (SF. Vol. 2, p. 39). He noted that, from the fax page numbers at the top of the affidavit, page two seemed to be missing, but the whole affidavit was included. (SF. Vol. 2, pp 39-40). He did not know where the original of the affidavit and warrant were. (SF. Vol. 2, p. 40). The time pages three and four were faxed was 1:46 am, and page one was faxed at 1:56 am. He stated that he received the fax from the judge at 1:07 am. (SF. Vol. 2, pp ). He testified that the Appellant was Mirandized in the intoxilyzer room and his report indicated that the time of the warning was on June 7, 2008 at 23:46. (SF. Vol. 2, p. 45), but the true time of the warning would be on the video. (SF. Vol. 2, p. 46). He had a copy of the statutory warning for, Appellant Crider s Brief Page 5

12 indicated the warnings were given on at 23:43, which was obviously incorrect. (SF. Vol. 2, p. 47). On redirect the witness stated that where he was parked, he could see the stop sign. (SF. Vol. 2, p 49). The trial court stated that he believed the officer saw the stop sign, that it wasn t obscured. (SF. Vol. 2, p. 50). The officer stated that State s Exhibit 1 was the complete affidavit faxed to the judge. (SF. Vol. 2, p. 51). He also stated the DWI chemical test report states that the warrant was signed at 1:07 am on June 7, (SF. Vol. 2, pp ). Trial Before the Jury Evidence for the State: Jeff Callan testified that he was a police officer for the city of Wylie. (SF. Vol. 3, p. 110). On June 7, 2008, he transported the Appellant Crider to Baylor Garland Hospital for a blood draw. (SF. Vol. 3, p. 112). Dianne Thorton testified that she was a CST technician at Baylor Medical Center of Garland. She stated that on June 7, 2008 at approximately 2:00 am, she drew blood from the Appellant Crider. (SF. Vol. 3, p. 118). Anthony Henderson testified that he was a sergeant with the Wylie Police Department. (SF. Vol. 3, p 126). He stated that at approximately 11:45-11:50 pm on June 6, 1908, he was at the Y intersection of FM 544, Vinson Road and Appellant Crider s Brief Page 6

13 County Line Road. (SF. Vol. 3, p. 128). He stated that he observed a white 4- door Lincoln north bound on Vinson Road. The vehicle made a left turn onto FM 544, but did not signal the turn. (SF. Vol. 3, p. 131). He made a traffic stop. Sgt. Henderson identified the Appellant, Robert Jackson Crider, as the driver of the Lincoln. (SF. Vol. 3, p ). Henderson stated that he noticed a strong odor of alcohol and that Appellant s speech was thick tongued. (SF. Vol. 3, p ). The appellant stated that he had been drinking. (SF. Vol. 3, p. 136). The sergeant had the Appellant perform the HGN test. After some difficulty in getting the Appellant to properly perform the test, he noticed four clues, indicating some evidence of intoxication. (SF. Vol. 3, p ). The Appellant refused to do the other field sobriety tests. (SF. Vol. 3, p ). The officer stated that in his opinion the Appellant was intoxicated and arrested him. (SF. Vol. 3, p. 169). At the Wylie Police Station the sergeant offered the appellant a breath test, which was refused. (SF. Vol. 3, p. 173). Henderson then testified that he filled out an affidavit for a search warrant for blood and faxed it to a judge. (SF. Vol. 3, pp ). He stated that the warrant issued at 1:07 am. Officer Callas then took the Appellant to Baylor Garland Hospital for a blood draw. (SF. Vol. 4, p. 19). Scott Stowers testified that he was a lieutenant with the Wylie Police Department and was the back up officer on the stop of Appellant. (SF. Vol. 4, p81). He said he noticed a faint odor of alcohol and that the Appellant s speech Appellant Crider s Brief Page 7

14 was slurred. (SF. Vol. 4, pp. 84, 86). He also noticed a slight sway when the Appellant was doing the HGN test. (SF. Vol. 4, p. 87). He stated that he believed the Appellant was intoxicated. (SF. Vol. 4, p. 89). Andrew Macy testified that he was a Department of Public Safety forensic scientist. (SF. Vol. 4, p. 107). He performed a head space gas chromatograph test on the Appellant s blood sample. (SF. Vol. 4, pp ). The test showed a blood alcohol level of.14 grams per 100 milliliters of blood. (SF. Vol. 4, p. 116). Evidence for the Defense: Michael Cheney testified that he made a DVD of the intersection on June 27, The DVD was admitted as Defendant s Exhibit #4. (SF. Vol. 4, pp ). Bruce Geer testified that he was a certified land surveyor. (SF. Vol. 4, pp ). Outside the presence of the jury he testified that the stop sign on Vinson Road at the intersection with FM 544 was in Dallas County. (SF. Vol. 4, p. 150). Also outside the presence of the jury, Chris Holsted testified that he was a city engineer for the city of Wylie. (SF. Vol. 4, p ). He stated that the stop sign was in Dallas County. (SF. Vol. 4, p. 156). The State then called Ken Holland, a GIS analyst (graphic information systems), who also worked for the City of Wylie. (SF. Vol. 4, p. 164) He testified the stop sign was in Collin County. (SF. Vol. 4, p. 165). Appellant Crider s Brief Page 8

15 Before the jury Lonnie Allen testified that he was a City of Dallas Police officer and worked with Appellant on the Dallas Police Department Bike Squad. (SF. Vol. 4, pp ). He stated bike officers were trained to use hand signals, and at times when he was driving his automobile, he would use hand signals to indicated a turn. (SF. Vol. 4, pp ). He stated that he had looked at the video of the Appellant and that he looked and acted normal. (SF. Vol. 4, p. 180). Summary of the Arguments The trial court erred in failing to grant the Appellant s Motion to Suppress the evidence obtained from the execution of the blood search warrant. The affidavit for the blood search warrant states that the affiant made certain observations on June 6, The affidavit for the blood search warrant does not state the time the observations were made on June 6, The affidavit is signed on June 7, The judge signed the warrant on June 7, 2008 at 1:07 am. From the four corners of the affidavit there is no way to determine when on June 6, 2008, the officer observed the facts stated for probable cause. The observations could have been made any time after 12:01 am on June 6, Without the time of the stop, the affidavit does not establish recent probable cause, a requirement for the issuance of a search warrant. The omission violates Article of the Code of Appellant Crider s Brief Page 9

16 Criminal Procedure, Article 1, 9 of the Texas Constitution and the Fourth Amendment of the United States Constitution. Argument Point of Error No. 1 Restated The officer s affidavit for a search warrant does not state the time of the arrest or any of the observed facts used as grounds for probable cause. Without the times, there can be no determination of recent probable cause, a requirement for a valid search warrant. Standard of Review: Appellate courts generally review a trial court's ruling on a motion to suppress evidence using a bifurcated standard of review. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002) (citing Romero v. State, 800 S.W.2d 539, (Tex. Crim. App. 1990)); State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (using the first and third categories of Guzman v. State, 955 S.W.2d 85, (Tex. Crim. App. 1997)); Robuck v. State, 40 S.W.3d 650, 654 (Tex. App.--San Antonio 2001, pet. ref'd); Burke v. State, 27 S.W.3d 651, 654 (Tex. App.--Waco 2000, pet. ref'd). Under this standard, the appellate court will give deference to the trial court's determination, expressed or implied, of historical facts, if supported by the record, and generally will review de novo the court's application of the law to the facts. Ross, supra at 856; Carmouche v. State, 10 Appellant Crider s Brief Page 10

17 S.W.3d 323, 329 (Tex. Crim. App. 2000); Burke, supra at 654. The trial court's legal ruling will be upheld if it is correct on any theory of the law applicable to the case, even if the trial court gives the wrong reason for its opinion. Romero, 800 S.W.2d at 543. A reviewing court is not required to give deference to the legal ruling of the trial court and is not bound by an improper legal ruling. The determination of the legal adequacy of an affidavit in support of a search warrant is to be made only within the four corners of the document involved. Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992); Oubre v. State, 542 S.W.2d 875, 877 (Tex. Crim. App. 1976). Because probable cause to support the issuance of the warrant is determined from the four corners of the affidavit alone, there are no credibility choices to be made by the trial court in examining the sufficiency of the affidavit to establish probable cause. Robuck, supra at 654; Burke, supra at 654. Thus, it has been said that the appellate court reviews independently or de novo the trial court's ruling on a motion to suppress evidence where the issue is probable cause in the search warrant affidavit. Burke, 27 S.W.3d at 654; Wynn v. State, 996 S.W.2d 324, 326 (Tex. App.--Fort Worth 1999, no pet.); Wachter v. State, 961 S.W.2d 598, 600 (Tex. App.--San Antonio 1997, pet. ref'd). Appellant Crider s Brief Page 11

18 Facts Showing Error: After Appellant s arrest for DWI, he was offered a breath test, which he refused (SF. Vol.3 pp ). The arresting officer then prepared an affidavit for a search warrant for Appellant s blood. (SF. Vol. pp ). Prior to trial Appellant filed a motion to suppress evidence of the results of the blood test. (R. 12). A hearing was held on the motion on October 24, The affidavit for the warrant was introduced at the hearing as State s Exhibit Number 1 (S.F. Vol. 2, p. 18). Appellant submitted two memoranda of authorities. (R. 20, 34). Specifically, the first of the memoranda states: Further, the affidavit for the warrant does not make a statement of sufficient recent probable cause to support the issuance of the warrant. At no place in the affidavit does it state what time the affiant made his observations on June 6, Further, the affidavit does not indicate that any factual observations were made on June 7, Due to the nature of blood testing, timing is critical. Any warrant that does not include when the observations are made cannot state recent probable cause sufficient to justify the intrusion into a constitutionally protected area. (R. 21, Memorandum of Authorities, p. 2, I.B.). The memorandum then proceeded to cite various authorities on the law of recent probable cause. (R ). 2 The memorandum clearly identified the issue that the failure of the four corners of the affidavit to state when on June 6, 2008 the officer observed the Appellant kept the affidavit from articulating recent probable cause: 2 Counsel s argument specifically referred to the lack of recent probable cause. (SF. Vo. 2, pp ). Appellant Crider s Brief Page 12

19 Without the time of the observations, then there is no way the neutral and detached magistrate could determine whether the observation was stale in its endeavor to obtain evidence for a blood alcohol test. (R. 24) By a docket order, the trial court denied the motion to suppress on November 18, (R. 1). At Appellant s trial the state sought to introduce the results of the blood test (SF. Vol. 4, p. 110 State s Exhibit # 7). Prior to trial the Appellant had filed Defendant s Trial Objection Number One, listing the grounds for the objection to the results of the blood test. At the time the blood test results were offered, Appellant s trial counsel objected referring to the objections made in Trial Objection Number One. The results of the blood test were introduced before the jury. (SF. Vol. 4, p. 116). The State made numerous references to the blood test results during argument. (SF. Vol. 5, pp. 8-9, 25-26). The affidavit for the search warrant stated: The affiant, Sgt A Henderson is currently employed as a police officer for the City of Wylie. Your affiant is assigned as a PATROL OFFICER. Your Affiant has been employed as a police officer for 9 years and states that: On or about , I, Sgt A Henderson was stationary at the three way intersection of s/b R FM 544, Vinson Rd. and County Line Rd. when I observed suspect vehicle make a left turn onto n/b E FM 544 from Vinson Rd. without signaling. I initiated a traffic stop at E FM 544 and Cedar Point. Upon making contact, the driver identified themselves verbally as Appellant Crider s Brief Page 13

20 CRIDER, ROBERT JACKSON II. I detected a strong odor of alcoholic beverage, bloodshot eyes and his speech was thick tounged. During Standardized field sobriety testing, I observed 4 clues during Horizontal Gaze Nystagmu, and CRIDER, ROBERT JACKSON II, refused to perform One Leg Stand Test and The Walk and Turn test. While speaking with CRIDER, ROBERT JACKSON II outside his vehicle I observed him swaying heavily. Based on these observations, the defendant CRIDER, ROBERT JACKSON II was arrested for driving while intoxicated. Defendant, CRIDER, ROBERT JACKSON II was asked to give a breath specimen, which they refused. I have good reason to believe and do believe that defendant, CRIDER, ROBERT JACKSON II in the City of Wylie, COLLIN county, Texas then and there did commit the offense of DRIVING WHILE INTOXICATED. Furthermore, I have good reason to believe and do believe that under the laws of the State of Texas, the following described property and items to wit: Blood from the person of said defendant will constitute evidence of the commission of the offense of DRIVING WHILE INTOXICATED. I am hereby requesting a warrant to obtain a blood specimen from said defendant. The blood specimen will be sent to an approved laboratory for analysis of blood alcohol concentration. Affiant s knowledge of the facts of this case was obtained by reviewing Wylie Police Department offense report # , filed by PATROL SERGEANT Sgt A Henderson and the statements of witness: and statements interview of the defendant, CRIDER, ROBERT JACKSON II and personal observations of the affiant. (SF Vol. 2, State s Exhibits, Tab 1). (A copy of the affidavit and warrant are attached as Exhibit 1 to this brief) The witness signed the application on June 7, Sgt. Henderson stated that he faxed the application for the blood warrant to Judge Wilson. (SF Vol. 2, p. Appellant Crider s Brief Page 14

21 15). At 1:07 am on June 7 he received a response from the judge. (SF. Vol. 2, p. 15). Argument: The present affidavit for the blood draw states that On or about the affiant observed facts that caused the officer to make a traffic stop. Sgt. Henderson does not state the time of the observations. He made further observations that caused him, the affiant, to conclude the defendant was intoxicated. The affiant arrested Defendant for DWI. Again, no time is stated. The Affidavit then states that the Defendant was asked to give a breath specimen, which they (sic) refused. The Affiant then states that he believes that the blood from the person of said defendant will constitute the evidence of the commission of the offense of DRIVING WHILE INTOXICATED. The affidavit then requests a warrant to obtain a blood specimen for analysis of blood alcohol concentration. The affidavit indicates that it was sworn before a notary on June 7, The warrant indicates that the warrant issued at 1:07 am on June 7, An affidavit in support of a search warrant must contain sufficient information to support the magistrate's finding of probable cause. Hughes v. State, 843 S.W.2d 591, 593 (Tex. Crim. App. 1992); Keen v. State, 626 S.W.2d 309, 312 (Tex. Crim. App. 1981). This is a requirement of the federal and state constitutions and Texas statutory law. U.S. Const. amends. IV, XIV; Tex. Const. Appellant Crider s Brief Page 15

22 art. I, 9; Tex. Code Crim. Proc. Ann. arts. 1.06, 18.01(b) (West 1977 & Supp. 2003). Thus, a search warrant properly issues only when predicated upon probable cause. Probable cause to support the issuance of a search warrant exists where the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises or thing to be searched at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1984); see also Tolentino v. State, 638 S.W.2d 499, 501 (Tex. Crim. App. 1982). Facts stated in an affidavit for a search warrant must not have become stale. Morris v. State, 63 S.W.3d 817, 822 (Tex. App.--Waco 2001, no pet.); Hafford v. State, 989 S.W.2d 439, 440 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd); Guerra v. State, 860 S.W.2d 609, 611 (Tex. App. Corpus Christi 1993, pet. ref d); see also State v. Stone, 137 S.W.3d 167, 178 (Tex. App. Houston [1st Dist.] 2004, pet. ref d); Rowell v. State, 14 S.W.3d 806, 809 (Tex. App. Houston [1st Dist.] 2000), aff d, 66 S.W.3d 279 (Tex.Crim.App. 2001); Hafford v. State, 989 S.W.2d 439, 440 (Tex. App. Houston [1st Dist.] 1999, pet. ref d). Where a search warrant affidavit fails to state when the affiant received the information from the informant, when the informant obtained his information, or when the described incident took place, the affidavit is insufficient to support the issuance of a search warrant. Schmidt v. State, 659 S.W.2d 420, 421 (Tex. Crim. App. 1983); Peltier v. State, 626 S.W.2d 30, 32 (Tex. Crim. App. 1981); Heredia v. State, 468 Appellant Crider s Brief Page 16

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS O P I N I O N

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS O P I N I O N COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS THE STATE OF TEXAS, v. JAVIER TERRAZAS, Appellant, Appellee. No. 08-12-00095-CR Appeal from the County Court at Law No. 7 of El Paso County, Texas

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