State of Texas v. Chris Lollar ( 2012 )


Menu:
  • Opinion filed August 9, 2012
    In The
    Eleventh Court of Appeals
    __________
    No. 11-10-00158-CR
    __________
    STATE OF TEXAS, Appellant
    V.
    CHRIS LOLLAR, Appellee
    On Appeal from the 259th District Court
    Jones County, Texas
    Trial Court No. CR024118
    MEMORANDUM OPINION
    Chris Lollar was charged by information with driving while intoxicated on July 28, 2009.
    On May 5, 2010, the trial court held a hearing on Appellee’s motion to suppress all evidence
    acquired pursuant to the blood-draw search warrant. The trial court took the motion under
    advisement and, on May 27, 2010, granted the motion to suppress. The State appeals the
    granting of the motion to suppress. This court abated the appeal to allow the trial court to file
    findings of fact and conclusions of law, per the State’s timely request. The trial court entered its
    findings of fact and conclusions of law on March 9, 2012. We affirm.
    Background Facts
    On March 29, 2009, Officer Misti Watkins, of the Anson Police Department, received a
    call regarding a one-vehicle rollover in Anson, Jones County, Texas. When Officer Watkins
    arrived at the scene, she found an upside-down black SUV. Appellee was still inside the vehicle,
    but was attempting to crawl out of the passenger window. Richard Lollar was standing next to
    the vehicle. Officer Watkins helped Appellee out of the passenger side of the upside-down
    vehicle. Appellee told Officer Watkins that she took the turn too fast and lost control. Officer
    Watkins testified that Appellee smelled of alcohol and exhibited slowed, slurred speech. Officer
    Watkins also noticed that Appellee had bloodshot, “glassed[-]over” eyes and poor balance.
    There was half of a 30-pack of beer in the car; some of the cans were damaged during the
    accident and were leaking their contents into the vehicle.
    Shortly after Officer Watkins arrived at the scene, EMS arrived and took Appellee to
    Anson General Hospital. After medical personnel at Anson General examined Appellee, she was
    taken by helicopter to Lubbock for treatment of a closed-head injury. Officer Watkins remained
    on the scene to continue her investigation. Officer Watkins filled out a search warrant affidavit
    form and presented it to a magistrate who issued a search warrant for a sample of Appellee’s
    blood. Before Appellee was taken to Lubbock for treatment of her closed-head injury, Officer
    Watkins went to Anson General and presented the warrant to the hospital staff. A sample of
    Appellee’s blood was drawn by a hospital technician. Several months later, on July 27, 2009, the
    State filed an information charging Appellee with the offense of DWI.
    Appellee filed a Franks v. Delaware motion to suppress all evidence derived from the
    issuance of the warrant. See Franks v. Delaware, 
    438 U.S. 154
    (1978). In the motion to
    suppress, Appellee alleged that the affidavit that was presented to the magistrate contained
    deliberate falsehoods or reckless disregard for the truth. Appellee attached a supporting affidavit
    in which she contradicted Officer Watkins’s affidavit and asserted that, contrary to the
    statements made in Officer Watkins’s affidavit, she was never asked to perform field sobriety
    tests. On May 5, 2010, a Franks hearing was held on Appellee’s motion to suppress. Officer
    Watkins was the sole witness at the hearing.         She testified about the stop and about her
    preparation of the affidavit in support of the search warrant.
    At the hearing, Officer Watkins’s testimony contradicted additional facts listed in the
    affidavit. We list here the discrepancies that the trial court specifically cited in its findings of
    2
    fact. The affidavit submitted to the magistrate in support of the warrant states that Appellee was
    asked at the scene to provide a specimen of her breath so that it could be analyzed to determine if
    she was under the influence of alcohol after the traffic stop. Officer Watkins admitted at the
    hearing that this did not happen. Officer Watkins stated in the affidavit that Appellee “admitted
    to me that [she] had been operating a motor vehicle in a public place in Jones County, Texas[,]
    just 7 minutes prior to my arrival” at the scene. Officer Watkins contradicted this at the hearing
    by saying that she merely inferred that Appellee had been the one operating the vehicle because
    Appellee stated, “I was driving down the road. My husband and I were arguing. I took the turn
    too fast and lost control.” The seven-minute time frame was Officer Watkins’s estimate, not
    Appellee’s direct admission as is suggested by the wording of the affidavit. In paragraph seven
    of the supporting affidavit, Officer Watkins said that she performed field sobriety tests on
    Appellee. Appellee submitted an affidavit in which she denied that Officer Watkins requested
    her to perform field sobriety tests and denied that she performed such tests. Officer Watkins
    admitted during the Franks hearing that she did not actually perform any field sobriety tests.
    Officer Watkins said, in paragraph nine of the search warrant affidavit, that she requested a
    sample of Appellee’s breath and/or blood and that Appellee refused. At the hearing, Officer
    Watkins admitted that she never asked Appellee for a sample of breath or blood.
    The trial court also found that Officer Watkins omitted some key facts from the affidavit
    that might have weighed against the magistrate’s granting of the search warrant. She did not
    mention in the affidavit that Appellee had to be removed from her vehicle, which was upside
    down, or that Appellee’s husband, Richard, was also in the vehicle with her. Officer Watkins
    also failed to include information that Appellee may have suffered a serious head injury or other
    trauma; she had to be taken by ambulance from the scene due to her injuries. She also did not
    mention that, in the vehicle, there were cans of beer that had been crushed during the accident;
    these could have been the source of the odor of alcohol at the scene and on Appellee’s person.
    At the hearing, Officer Watkins conceded that Appellee’s behavior at the scene could have been
    the result of her injuries, as opposed to intoxication, and that the odor could have come from the
    crushed cans of beer.
    Based on the foregoing discrepancies, on Officer Watkins’s failure to correct known
    falsehoods in the affidavit, and on her demeanor during her testimony, the trial court found that
    Officer Watkins was not a credible witness. The trial court found Officer Watkins’s testimony
    3
    about Appellee’s strong odor of alcohol and bloodshot eyes was not credible. Further, the trial
    court found that the “allegation in the search warrant affidavit that Defendant Lollar’s lack of
    balance, slurred speech, and bloodshot eyes were caused by intoxication and not by the shock
    and trauma she sustained in the vehicle accident were demonstrated to be false by Officer
    Watkins’ trial testimony.” The trial court found that the smell of alcohol likely emanated from
    the six to seven leaking cans of beer, rather than Appellee. Finally, the trial court found that
    Officer Watkins’s failure to correct the falsehoods in her affidavit was deliberate and intentional,
    or at least done with a reckless disregard for the truth rather than mere negligence. The trial
    court granted Appellee’s motion to suppress.
    The Trial Court’s Granting of the Motion to Suppress
    In its first issue, the State argues that the trial court abused its discretion when it granted
    Appellee’s motion to suppress evidence acquired pursuant to the blood-draw search warrant. We
    review a trial court’s decision on a Franks suppression issue under the same standard that we
    review a probable cause deficiency, a mixed standard of review: “We give almost total deference
    to a trial court’s rulings on questions of historical fact and application-of-law-to-fact questions
    that turn on an evaluation of credibility and demeanor while we review de novo application-of-
    law-to-fact questions that do not turn upon credibility and demeanor.” Johnson v. State, 
    68 S.W.3d 644
    , 652–53 (Tex. Crim. App. 2002); Davis v. State, 
    144 S.W.3d 192
    , 201 (Tex. App.—
    Fort Worth 2004, pet. ref’d). However, in a Franks hearing, the trial court may consider not only
    the probable cause affidavit but also the evidence offered by the party moving to suppress
    because this attack on the sufficiency of the affidavit arises from claims that it contains false
    statements. 
    Franks, 438 U.S. at 155
    –56; Cates v. State, 
    120 S.W.3d 352
    , 355 n.3 (Tex. Crim.
    App. 2003); 
    Davis, 144 S.W.3d at 201
    .
    In Franks, the United States Supreme Court held that, if a defendant established by a
    preponderance of the evidence that a false statement made knowingly, intentionally, or with
    reckless disregard for the truth was included in a probable cause affidavit and if it was material
    to establish probable cause, the false material must be excised from the affidavit. 
    Franks, 438 U.S. at 164
    –65; Harris v. State, 
    227 S.W.3d 83
    , 85 (Tex. Crim. App. 2007). If the remaining
    content of the affidavit does not then still establish sufficient probable cause, the search warrant
    must be voided, and the evidence resulting from that search excluded. 
    Franks, 438 U.S. at 155
    –
    56; 
    Harris, 227 S.W.3d at 85
    . A misstatement in an affidavit that is the result of simple
    4
    negligence or inadvertence, as opposed to reckless disregard for the truth, will not make the
    warrant invalid. See Dancy v. State, 
    728 S.W.2d 772
    , 783 (Tex. Crim. App. 1987). At a Franks
    hearing, the trial court is owed great deference as sole factfinder and judge of the witnesses’
    credibility. Janecka v. State, 
    937 S.W.2d 456
    , 462 (Tex. Crim. App. 1996).
    The State attacks the trial court’s initial decision to grant the Franks hearing at all. In
    order to be granted a Franks hearing, a defendant must (1) allege a deliberate falsehood or
    reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit
    claimed to be false; (2) accompany these allegations with an offer of proof stating the supporting
    reasons; and (3) show that, when the portion of the affidavit alleged to be false is excised from
    the affidavit, the remaining content is insufficient to support issuance of the warrant. 
    Harris, 227 S.W.3d at 85
    .     Appellee alleged in her motion that Officer Watkins’s affidavit contained
    deliberate or reckless falsehoods. Appellee made an offer of proof of those claims and attached
    an affidavit in support of her motion. Appellee not only asserted that field sobriety tests were
    neither requested nor performed, but she also attacked the remaining basis for establishing
    probable cause to issue a warrant. She alleged that there was no basis for “the opinion [that
    Appellee had operated a vehicle while intoxicated] enumerated in the affidavit” other than the
    physical description of Appellee that was provided by Officer Watkins that could be explained
    by other circumstances that were omitted from the affidavit. In her affidavit in support of the
    motion to suppress, Appellee only mentions the facts in paragraph seven of Officer Watkins’s
    affidavit. However, the allegations in her written motion are no less relevant. “[N]othing in our
    law requires the defendant to include a sworn affidavit in making a preliminary showing under
    Franks.” 
    Cates, 120 S.W.3d at 356
    . The trial court did not err when it granted the hearing.
    At the hearing, Officer Watkins confirmed that she did not perform any sobriety tests.
    She admitted that paragraph seven of the affidavit was untrue. Additional falsehoods and
    omissions came to light during the hearing.           Officer Watkins’s testimony went beyond
    negligence to a reckless disregard for the truth. Officer Watkins admitted that she had not read
    the affidavit before she signed it. She “didn’t think to go back and read it and mark out stuff that
    did not apply.” When asked whether this was an example of “good” or “bad” police work, she
    replied, “Well, it’s not good or bad . . . just because I didn’t mark it out doesn’t mean it’s bad
    police work.” Form affidavits can be a valuable tool for law enforcement when time is of the
    essence; if abused, they also have the potential to infringe on Fourth Amendment rights. The
    5
    affiant must bear responsibility for the contents of a sworn affidavit presented to a magistrate for
    signature.
    It is clear from the record, especially the findings of fact and conclusions of law, that, due
    to credibility issues, the trial court became concerned with the entire affidavit, not just those
    portions attacked by the motion to suppress. The trial court expressed in its findings that it was
    concerned with the credibility of the affiant based on her demeanor at the hearing and
    discrepancies in her testimony. In fact, the trial court’s decision to grant the motion to suppress
    turned entirely on its assessment of the credibility of the affiant. We defer to the trial court as
    sole factfinder and judge of the witness’s credibility. When the parts of the affidavit that the trial
    court found incredible were stripped away, there was nothing left in the affidavit to establish the
    probable cause necessary to issue a warrant for Appellee’s blood. The State’s first issue is
    overruled.
    Issues that Are Moot
    In Issue Two, the State argues that a municipal court judge in Jones County is authorized
    to sign a search warrant for blood. This issue is moot because the trial court’s findings of fact
    and conclusions of law reveal that its decision rested solely on the affiant’s credibility and had
    nothing to do with the qualifications of the issuing magistrate. Likewise, we did not rely on the
    authority of the issuing magistrate in overruling the State’s first issue. The State’s second issue
    is overruled as moot.
    In Issue Three, the State contends that the trial court erred when it failed to file written
    findings of fact and conclusions of law. After we abated the appeal, the trial court filed written
    findings of fact and conclusions of law regarding Appellee’s motion to suppress. Issue Three is
    overruled as moot.
    The judgment of the trial court is affirmed.
    ERIC KALENAK
    August 9, 2012                                                 JUSTICE
    Do not publish. See TEX. R. APP. P. 47.2(b).
    Panel consists of: Wright, C.J.,
    McCall, J., and Kalenak, J.
    6