Raegan D. Ashcraft v. State ( 2013 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-12-00660-CR
    Raegan D. Ashcraft, Appellant
    v.
    The State of Texas, Appellee
    FROM THE COUNTY COURT AT LAW OF BURNET COUNTY
    NO. M27281, HONORABLE W. R. SAVAGE, JUDGE PRESIDING
    MEMORANDUM OPINION
    Following the denial of her motion to suppress evidence, appellant Raegan D.
    Ashcraft pleaded no contest to the misdemeanor offense of driving while intoxicated. See Tex. Penal
    Code § 49.04. Punishment was assessed at 90 days in jail and a $2,000 fine, but the trial court
    suspended imposition of the sentence and placed Ashcraft on probation for fourteen months
    and probated the fine in the amount of $1,250. In three issues on appeal, Ashcraft asserts that the
    trial court abused its discretion in denying her motion to suppress on the following grounds: (1) the
    search-warrant affidavit used to obtain a specimen of Ashcraft’s blood did not set out sufficient facts
    to establish that she was operating a motor vehicle in a public place; (2) the affidavit did not set
    out sufficient facts to establish the time at which Ashcraft was found operating a motor vehicle; and
    (3) the affidavit was not properly “sworn” as required by law. We will affirm the judgment.
    BACKGROUND
    At the suppression hearing, the trial court heard evidence that on the night of May 14,
    2011, Trooper Nathan McWherter of the Texas Department of Public Safety was on patrol when he
    observed a vehicle speeding in Burnet County near Highway 281. After stopping the vehicle and
    conversing with the driver, later identified as Ashcraft, McWherter became suspicious that Ashcraft
    was intoxicated. After observing Ashcraft’s performance on field sobriety tests, McWherter arrested
    Ashcraft for driving while intoxicated and transported her to the Llano Memorial Hospital for
    a blood draw. Because Ashcraft refused consent to have her blood drawn, McWherter was required
    to submit an affidavit for a search warrant in order to obtain a specimen of Ashcraft’s blood. The
    affidavit, which we discuss in more detail below as it is relevant to Ashcraft’s issues on appeal, was
    signed by McWherter in the presence of Officer Holly Kline of the Llano Police Department. Based
    on the contents of the affidavit, a warrant was issued and Ashcraft’s blood was drawn.
    The issues at the suppression hearing relevant to this appeal were the sufficiency of
    the facts contained within the affidavit to establish probable cause for the blood draw and whether
    the affidavit complied with the statutory requirement that the affidavit be “sworn.” See Tex. Code
    Crim. Proc. art. 18.01(b), (c). After considering the evidence presented, specifically the testimony
    of McWherter, the search-warrant affidavit, and the search warrant itself, and hearing argument
    from the parties, the trial court denied the motion to suppress. The trial court subsequently made the
    following findings of fact and conclusions of law:
    FINDINGS OF FACT
    ....
    2
    1.     The traffic stop occurred [at] approximately 11:05 p.m. and the search
    warrant was issued by Judge Dan Mills, 424th District Court, at 12:28 a.m.,
    May 15, 2011.
    2.     Pursuant to said warrant, a blood specimen was drawn at 12:49 a.m., May 15,
    2011, and subsequently relinquished to the arresting officer.
    3.     The arresting officer signed and executed the Affidavit for Search Warrant
    in the physical presence of a peace officer, Holly Kline, Llano Police
    Department, a person qualified to administer oaths and execute jurats. The
    jurat was duly executed by said peace officer and the completed affidavit was
    forwarded to Judge Mills by fax.
    CONCLUSIONS OF LAW
    1.     The search warrant signed by Judge Mills was amply supported by the
    affidavit supplied by the affiant /arresting officer. The information contained
    in the affidavit and reasonable inferences made therefrom set forth substantial
    facts establishing probable cause that evidence of intoxication would be
    obtained by obtaining a specimen of Defendant’s blood.
    2.     The blood specimen seized pursuant to the warrant was properly admitted
    against Defendant. The arrest of Defendant and the transportation of
    Defendant to an adjacent county for purposes of execution of a valid blood
    search warrant did not constitute a violation of Defendant’s rights under the
    4th Amendment, U.S. Constitution nor under Article 1, Section 10, Texas
    Constitution.
    3.     The requirement that the search warrant affidavit be sworn to before a person
    authorized to administer oaths was met in this case. While there is some
    evidence that the officer administering the oath did not actually verbalize the
    recitation of an oath, the affiant signed the affidavit in the presence of the
    subscribing officer and with full understanding of its implications. This is
    sufficient to comply with the requirements of Article 18.01.
    After her motion to suppress was denied, Ashcraft pleaded no contest to driving while
    intoxicated and was placed on probation as noted above. This appeal followed.
    3
    STANDARD OF REVIEW
    “In review of a trial court’s ruling on a motion to suppress, an appellate court must
    apply a standard of abuse of discretion and overturn the trial court’s ruling only if it is outside the
    zone of reasonable disagreement.” Martinez v. State, 
    348 S.W.3d 919
    , 922 (Tex. Crim. App. 2011)
    (citing State v. Dixon, 
    206 S.W.3d 587
    , 590 (Tex. Crim. App. 2006)). We are to apply a bifurcated
    standard of review, giving almost total deference to a trial court’s determination of historic facts and
    mixed questions of law and fact that rely upon the credibility of a witness, but applying a de novo
    standard of review to pure questions of law and mixed questions that do not depend on credibility
    determinations. 
    Id. (citing Guzman
    v. State, 
    955 S.W.2d 85
    , 87-89 (Tex. Crim. App. 1997)). When
    reviewing a trial court’s ruling on a motion to suppress, we view the evidence in the light most
    favorable to the ruling. State v. Robinson, 
    334 S.W.3d 776
    , 778 (Tex. Crim. App. 2011) (citing State
    v. Kelly, 
    204 S.W.3d 808
    , 818 (Tex. Crim. App. 2006)). If the trial court makes findings of fact,
    as it did here, we determine whether the evidence supports those findings. 
    Id. We then
    review
    the trial court’s legal rulings de novo unless the findings are dispositive. 
    Id. “We will
    sustain
    the trial court’s ruling if that ruling is ‘reasonably supported by the record and is correct on
    any theory of law applicable to the case.’” Valtierra v. State, 
    310 S.W.3d 442
    , 448 (Tex. Crim.
    App. 2010) (quoting 
    Dixon, 206 S.W.3d at 590
    ).
    ANALYSIS
    Sufficiency of facts contained within the affidavit
    In her first issue, Ashcraft asserts that the search-warrant affidavit does not set out
    sufficient facts to establish that she was operating a motor vehicle in a public place. In her second
    4
    issue, Ashcraft similarly asserts that the affidavit did not set out sufficient facts to establish the time
    at which she was operating a motor vehicle.
    “No search warrant shall issue for any purpose in this state unless sufficient facts are
    first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance.”
    Tex. Code Crim. Proc. art. 18.01(b). “A sworn affidavit setting forth substantial facts establishing
    probable cause shall be filed in every instance in which a search warrant is requested.” 
    Id. The sworn
    affidavit must set forth “sufficient facts to establish probable cause: (1) that a specific offense
    has been committed, (2) that the specifically described property or items that are to be searched for
    or seized constitute evidence of that offense or evidence that a particular person committed that
    offense, and (3) that the property or items constituting evidence to be searched for or seized are
    located at or on the particular person, place, or thing to be searched.” 
    Id. art. 18.01(c).
    In this case, the affidavit must contain sufficient facts to establish probable cause
    that Ashcraft had committed the offense of driving while intoxicated and that evidence of
    Ashcraft’s intoxication would be found in her blood. See Farhat v. State, 
    337 S.W.3d 302
    , 307
    (Tex. App.—Fort Worth 2011, pet. ref’d). Therefore, two of the facts essential to the determination
    of probable cause here were: (1) whether Ashcraft was operating a motor vehicle in a public place,
    see Tex. Penal Code § 49.04(a); and (2) the approximate time at which Ashcraft was operating a
    motor vehicle while allegedly intoxicated, so that the magistrate could determine the likelihood
    that evidence of intoxication would still be present in Ashcraft’s blood at the time her blood was
    to be drawn. See Crider v. State, 
    352 S.W.3d 704
    , 709-12 (Tex. Crim. App. 2011); State v. Jordan,
    
    342 S.W.3d 565
    , 571-72 (Tex. Crim. App. 2011).
    5
    Probable cause exists if, under the totality of the circumstances set forth in the
    affidavit before the magistrate, there is a “fair probability” that contraband or evidence of a crime
    will be found in a particular place at the time the warrant is issued. See Illinois v. Gates, 
    462 U.S. 213
    , 238 (1983); 
    Jordan, 342 S.W.3d at 568-69
    . “It is a ‘flexible and nondemanding’ standard.”
    Rodriguez v. State, 
    232 S.W.3d 55
    , 60 (Tex. Crim. App. 2007) (quoting George E. Dix & Robert O.
    Dawson, 40 Texas Practice—Criminal Practice and Procedure § 5.03 at 292 (2d ed. 2001)). “The
    magistrate may interpret the affidavit in a non-technical, common-sense manner and may draw
    reasonable inferences from the facts and circumstances contained within its four corners.” 
    Jordan, 342 S.W.3d at 369
    .
    When reviewing a magistrate’s decision to issue a warrant, trial and appellate courts
    are to apply “a highly deferential standard in keeping with the constitutional preference for
    a warrant.” 
    Rodriguez, 232 S.W.3d at 61
    ; see Swearingen v. State, 
    143 S.W.3d 808
    , 810-11
    (Tex. Crim. App. 2004) (explaining that de novo review of probable-cause determination, although
    appropriate in other contexts, is inappropriate in review of magistrate’s decision to issue warrant);
    see also 
    Gates, 462 U.S. at 236
    (“We have repeatedly said that after-the-fact scrutiny by courts
    of the sufficiency of an affidavit should not take the form of a de novo review. A magistrate’s
    ‘determination of probable cause should be paid great deference by reviewing courts.’”). “Thus,
    when an appellate court reviews an issuing magistrate’s determination, that court should interpret
    the affidavit in a commonsensical and realistic manner, recognizing that the magistrate may draw
    reasonable inferences.” 
    Rodriguez, 232 S.W.3d at 61
    . “When in doubt, we defer to all reasonable
    inferences that the magistrate could have made.” 
    Id. “As long
    as the magistrate had a substantial
    6
    basis for concluding that probable cause existed, we will uphold the magistrate’s probable cause
    determination.” State v. McLain, 
    337 S.W.3d 268
    , 271 (Tex. Crim. App. 2011).
    We first address Ashcraft’s claim that the affidavit did not set out sufficient facts to
    establish that she was operating a motor vehicle in a public place. A “public place” is defined as
    “any place to which the public or a substantial group of the public has access and includes . . . streets,
    highways.” Tex. Penal Code § 1.07(40). Here, Trooper McWherter never specified in the affidavit
    the location where he had observed Ashcraft operating a motor vehicle.1 However, McWherter
    did state in the affidavit that he observed Ashcraft “speeding” at the rate of “74 miles per hour
    in a 65 miles per hour zone.” From these facts, the magistrate could have reasonably inferred that
    Ashcraft had been operating a motor vehicle on a street or highway where speed limits are regulated,
    even to the extent of having speed-limit “zones,” and that this would, in turn, be a “public place.”
    Accordingly, we cannot conclude that the trial court abused its discretion in denying the motion to
    suppress on the ground that the magistrate had a substantial basis for concluding that Ashcraft was
    operating a motor vehicle in a public place. We overrule Ashcraft’s first issue.
    We next address Ashcraft’s assertion that the affidavit did not set out specific facts
    to establish the time at which she was operating a motor vehicle. “[A]n affidavit ‘is inadequate
    if it fails to disclose facts which would enable the magistrate to ascertain from the affidavit that
    event upon which the probable cause was founded was not so remote as to render it ineffective.’”
    
    Crider, 352 S.W.3d at 707
    (quoting Garza v. State, 
    48 S.W.2d 625
    , 627-28 (Tex. Crim. App. 1932)
    (op. on reh’g)). In other words, “there must be sufficient facts within the affidavit to support a
    1
    Although McWherter testified at the suppression hearing that Ashcraft was stopped near
    Highway 281, this information was not included in the affidavit.
    7
    probable-cause finding that the evidence is still available and in the same location.” 
    Id. In a
    driving-
    while-intoxicated case, the evidence sought is alcohol or some other intoxicant, and the location
    of that evidence is in the individual’s bloodstream. See 
    id. Therefore, “[t]he
    magistrate need[s] to
    know when the [appellant] was stopped in order to determine the probability that evidence
    of an offense would be found in the [appellant’s] blood at the time the warrant issued.” 
    Jordan, 342 S.W.3d at 570
    .
    “No hard-and-fast rule sets the outer limit of time between stopping an apparently
    intoxicated driver and the existence of probable cause that evidence of intoxication will still be found
    within that person’s blood.”2 
    Crider, 352 S.W.3d at 707
    -08. However, “[a]lcohol in a person’s
    bloodstream disappears quite rapidly, thus the facts cited to support probable cause to search
    for alcohol in a DWI suspect’s bloodstream become stale quite rapidly.” 
    Id. at 708.
    Consequently,
    “[t]he longer the time gap between the initial stop and the eventual signing of the warrant, the less
    likely that evidence of intoxication would still be found in appellant’s blood.” 
    Id. at 710.
    In order
    for a reviewing court to ensure that the magistrate had a substantial basis for concluding that
    probable cause existed to draw the suspect’s blood, the affidavit must contain some information
    that “suggests what time gap existed between the last moment of driving and the moment the
    magistrate signed the warrant.” See 
    id. However, in
    our review, we must consider the totality of the
    circumstances described in the affidavit and give “due regard to all reasonable inferences that can
    2
    The court of criminal appeals has concluded that it is unreasonable to expect that alcohol
    may still be found in a person’s blood over 24 hours after a traffic stop, see Crider v. State,
    
    352 S.W.3d 704
    , 710 (Tex. Crim. App. 2011), but that, depending on the severity of the symptoms
    of intoxication, it is not unreasonable to expect that alcohol may still be found in a person’s
    blood within four hours after a traffic stop. See State v. Jordan, 
    342 S.W.3d 565
    , 571-72 (Tex. Crim.
    App. 2011).
    8
    be drawn from the stated facts” within the four corners of the affidavit. 
    Id. at 711.
    For example, in
    State v. Jordan, the arresting officer did not specify the time at which he had observed the defendant
    operating a motor vehicle. However, he did indicate on the affidavit that the offense had occurred
    on June 6, 2008, which was the same date on which the affidavit was 
    sworn. 342 S.W.3d at 567
    -
    68. Also on that date, the magistrate issued a search warrant for blood at 3:54 a.m. 
    Id. Thus, considering
    the totality of the circumstances and drawing all reasonable inferences from the stated
    facts within the affidavit, the reviewing court could determine that the defendant was stopped at
    sometime after midnight on June 6, 2008, which was less than four hours prior to the warrant being
    issued. 
    Id. at 571.
    “Given the symptoms of intoxication described in the affidavit,” the court of
    criminal appeals held “that the magistrate had a substantial basis to determine that evidence
    of intoxication would probably be found in the appellee’s blood within four hours of the stop.”
    
    Id. at 572.
    This case is similar to Jordan. Here, the affidavit does not indicate at what time
    Trooper McWherter observed Ashcraft operating a motor vehicle. However, the affidavit does
    specify that McWherter “made contact” with Ashcraft on May 14, 2011, “at approximately
    11:05 p.m.” The affidavit was sworn on May 15, 2011, which indicates that it was sworn at some
    time after midnight. The warrant itself was issued by the magistrate at 12:28 a.m. on May 15, 2011.
    Thus, less than two hours had elapsed between the time McWherter “made contact” with Ashcraft
    and the time a warrant was issued to draw Ashcraft’s blood.3 Given the symptoms of intoxication
    3
    As Ashcraft observes in her brief, McWherter acknowledged at the suppression hearing that
    11:05 p.m. was actually the time he had placed Ashcraft under arrest and that the traffic stop had
    occurred at some time prior to that. However, on cross-examination, McWherter agreed with the
    prosecutor that, even assuming there was some delay between the initial traffic stop and the arrest,
    9
    described in the affidavit, which included a “strong” odor of alcohol on Ashcraft’s breath, bloodshot
    eyes, swaying, and the exhibition of several indicators of intoxication during her attempts to perform
    field sobriety tests, we cannot conclude that the trial court abused its discretion in denying the
    motion to suppress on the ground that the magistrate had a substantial basis to determine that
    evidence of intoxication would likely be found in the Ashcraft’s blood within two hours of the stop.
    See 
    id. at 572.
    We overrule Ashcraft’s second issue.
    Requirement that affidavit be “sworn”
    In her third issue, Ashcraft asserts that the affidavit was not “sworn” as required
    by statute. See Tex. Code Crim. Proc. art. 18.01(b). Specifically, Ashcraft contends that the peace
    officer who signed the affidavit, Holly Kline, did not place McWherter under oath and did not have
    him swear to the truth of the matters contained in the affidavit. Ashcraft further contends that Kline
    was not qualified to administer oaths.
    We first address the latter contention. An oath may be made by a peace officer if
    the oath is administered when the officer is engaged in the performance of the officer’s duties and
    the administration of the oath relates to the officer’s duties. Tex. Gov’t Code § 602.002(17). Here,
    McWherter testified that he “called the Llano County dispatch and asked them to send a police
    officer over to the hospital for the purpose of signing an affidavit.” Kline arrived at the hospital in
    response to that request. When asked if he knew whether Kline had as part of her official duties the
    duty to administer oaths, McWherter testified, “I am under the impression that we all can do that.
    the time between the initial traffic stop and the warrant being issued was approximately two hours.
    And, in response to questioning from the trial court, McWherter also testified that the delay between
    the initial traffic stop and the subsequent arrest was approximately fifteen minutes.
    10
    When we go to the jail there’s never a notary at the jail in Burnet County. We sign each other’s
    [probable cause] affidavits all the time. I believe that’s a common, lawful thing to do.” McWherter
    further testified that, at the time Kline arrived at the hospital, Kline was in uniform, on duty, and
    on routine patrol. Additionally, on the affidavit itself, Kline indicated that she was a peace officer.
    Considering the above evidence in its totality, we conclude that the trial court’s finding that Kline
    was qualified to administer oaths is “reasonably supported by the record” and is not “outside the
    zone of reasonable disagreement.” We cannot conclude that the trial court abused its discretion in
    denying the motion to suppress on this ground.
    We next address Ashcraft’s contention that the affidavit was not “sworn.” It is well
    established that article 18.01(b) requires a “sworn affidavit.” See 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. 1944) (op. on reh’g). 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 search-warrant affidavit, “an oath is both constitutionally and statutorily indispensable.” 
    Clay, 391 S.W.3d at 97
    .
    At the suppression hearing, the following testimony was elicited from McWherter as
    to whether Officer Kline had formally placed him under oath at the time he signed the affidavit:
    Q       When [Kline] arrived at the hospital describe as best you can remember
    exactly what was done.
    11
    A       When she arrived at the hospital?
    Q       Yes.
    A       I let her look at the affidavit. I let her witness me signing it and then I dated
    it and she signed that she witnessed my signature.
    Q       Was there any conversation at all between the two of you?
    A       I don’t recall. I would assume there probably was.
    Q       You don’t recall any statements or questions by her to you about the
    signature?
    A       No, sir, I don’t remember.
    Q       And as far as you know all she was doing was witnessing that you had signed
    that; is that correct?
    A       Yes, sir.
    Q       She did not at any time place you under oath; did she? In other words, ask
    you to raise your right hand and swear to tell the truth, the whole truth and
    nothing but the truth so help you God; did she?
    A       No, she did not.
    Q       And she did not ask you if you were swearing to the truth of each and every
    item or statement in that affidavit; did she?
    A       She did not ask that, no.
    Thus, it appears from the record that, consistent with the trial court’s findings, “the
    officer administering the oath did not actually verbalize the recitation of an oath.” However, as the
    trial court observed, that does not end the inquiry. If there is other evidence in the record that proves
    that the affiant personally swore to the truth of the facts in the affidavit before the issuing magistrate
    or other officer qualified to administer oaths, then the affidavit is valid. See Smith, 
    207 S.W.3d 12
    at 792. “Our Code of Criminal Procedure prescribes no form of oath necessary to be administered
    to a witness, or one attesting, under oath, any fact in a criminal proceeding.” Vaughn v. State,
    
    177 S.W.2d 59
    , 60 (Tex. Crim. App. 1943). Instead, the test to determine if an oath has been made
    is whether the declarant’s statement would subject the person to a charge of perjury. See id.; see also
    
    Smith, 207 S.W.3d at 790
    n.13 (“An oath is a matter of substance, not form” and “creat[es] liability
    for perjury or false swearing for those who abuse the warrant process by giving false and fraudulent
    information.”) (quoting State v. Tye, 
    248 Wis. 2d 530
    , 
    636 N.W.2d 473
    , 478 (Wis. 2001)).
    Here, the affidavit begins with the following statement: “The undersigned Affiant,
    being a Peace Officer under the laws of Texas and being duly sworn, on oath makes the following
    statements and accusations.” The affidavit further provides, “Affiant is sending a true and correct
    copy of this Affidavit for Search Warrant via facsimile/email to: Judge Mills,” below which appears
    McWherter’s signature. The affidavit concludes with the following statement: “SWORN TO AND
    SUBSCRIBED before me on the 15th day of May 2011,” below which appears Officer Kline’s
    signature. Although this would be a simpler case if McWherter had verbally recited the oath to
    Officer Kline, we nonetheless conclude that these statements and the accompanying signatures, when
    considered in their totality, support the trial court’s finding that the affidavit, if later proven to
    be false, would subject McWherter to a charge of perjury. See Tex. Penal Code § 37.07(b); Hardy
    v. State, 
    213 S.W.3d 916
    , 917 (Tex. Crim. App. 2007); see also 
    Vaughn, 177 S.W.2d at 60
    (“In
    perjury cases, the rule is that there is a valid oath sufficient to form the basis of a charge of perjury
    when there is some form of an unequivocal and present act, in the presence of the officer authorized
    to administer the oath, whereby the affiant consciously takes on himself the obligation of an oath.”).
    Accordingly, the trial court’s conclusion that the affidavit in this case was “sworn” is “reasonably
    13
    supported by the record” and is not “outside the zone of reasonable disagreement.” We cannot
    conclude that the trial court abused its discretion in denying the motion to suppress on this ground.
    We overrule Ashcraft’s third issue.
    CONCLUSION
    We affirm the judgment of the trial court.
    __________________________________________
    Bob Pemberton, Justice
    Before Justices Puryear, Pemberton and Rose
    Affirmed
    Filed: August 20, 2013
    Do Not Publish
    14