## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-16-00399-CR

JASMYNE DONOSKY APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM COUNTY CRIMINAL COURT NO. 3 OF DENT ON COUNTY TRIAL COURT NO. CR-2016-00372-C

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### MEMORANDUM OPINION 1

---------- Appellant Jasmyne Donosky was arrested for driving while intoxicated (DWI), see Tex. Pen. Code An n. § 49.04 (West Supp . 2016), and after she refused to provide a breath or blood sa mple, a magistrate issued a warrant for the search and seizure of her blood. After the tria l court denied Appellant’s motion to suppress her blood test results, she pled guilty to DWI pursuant to a

1 See Tex. R. App. P. 47.4.2 plea bargain, and the trial court convic ted her and sentenced her to serve 150 days’ confinement in the Denton County Jail and to pay a fine of $500, suspending impositi on of confinement and placing her on community supervision for eighteen months. Appellant preserved her right to app eal the denial of her motion to suppress, and in her sole issue, she conte nds that the trial court erred by denying her motion to suppress the bloo d test results becaus e the affidavit in support of the warrantwas insufficient to establish probable cause. Because we hold that the affidavit sufficiently establis hed probable cause, we affirm the trial court’s judgment. I. Statement of Facts A. Facts of the O ffense Found in Officer Wilcock’s Affidavit The following information appe ars in the affidavit at issue. On the morning of June 22, 2015, at 2:54 a.m., Officer Simon Wilcock, a peace officer with The Colony Police Department, was dispatched to the scene of a minor hit-and-run accident in The Colony, Te xas, of Denton County. When he arrived, Officer Wilcock first found a damaged Infiniti FX 35 at 6745 Davidson Street and then followed black tire markings on the concre te roadway to a silver Kia Sorrento at 5900 Arbor Hills Way. 2 Inside the Sorrento, Officer Wilcock found Appellant

2 We take judicial notice of the facts that the two street s intersect and the two addresses are approxim ately .2 miles apart. See Tex. R. Evid. 201.3 slumped over in the driver’s seat. When Officer Wilcock instructed Appellant to unlock the door, she woke up and first a ttempted to unlock the door by pushing the rearview mirror attached to the front windshield. Officer Wilcock then shined his flashlight toward the door handle, where the button to unlock the door was located. Appellant reached for the center console with her right hand. Officer Wilcock again used his flashlight to highlight the area on the door where the button to unlock the door was located. Appellant finally unlocked the car door. When questioned by Officer Wilcock, Ap pellant stated t hat she had been driving, had consumed “two or three” drinks, and was driving from a friend’s house when she hit a v ehicle. She then pu lled over and stopped. In response to Officer Wilcock’s request that she “rate her own level of intoxication on a scale of 1 to 10, with 1 being completely sober and 10 being very intoxicated and about to pass out,” Appellant rated her level ofintoxication as a “three (3).” When Appellant exited her car at Officer Wilcock’s instruction, he noticed that she was unsteady on her feet and sway ed while walking. He also observed several signs of intoxication, including glassy eyes, thick- tongued speech, and the odor of an alcoholic beverage. O fficer Wilcock conducted standard field sobriety tests during which he recorded numerous clues of in toxication, and he ultimately concluded that Ap pellant failed the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand te st. Officer Wilcock arrested Appellant for DWI and requested blood and breath samples from her. She refused. Officer Wilcock then sought a warrant to take a sample of her blood.4 B. The Warrant, the Denial of the Mo tion to Suppress, and the Plea Bargain At 6:29 a.m., about three and a ha lf hours after Officer Wilcock was dispatched to the accident scene, a magistrate of The Colony issued the search warrant. The trial court denied Appellant’s motion to suppress the blood test results, and she later pled guilty to DWI pu rsuant to a plea bargain. Appellant timely appealed. C. Findings of Fact and Conclusions of Law We abated and remanded this case to the trial court to prepare and issue findings of fact and conclusions of law thatAppellant requested in the trial court regarding the denial of the motion to suppress. The tr ial court found as follows:
1. Officer Simon Wilcock of T he Colony Police Department applied for a search warrant to obta in a sample of [Appellant’s] blood on or about June 22, 2015 based on his belief that [she] committed the offense of operating a moto r vehicle while intoxicated.

. . . . 5. . . . Officer Wilcock was dis patched to a minor accident/hit& run traffic accident at 2:54 AM on June 22, 2015 in the City of Colony, Denton County, Texas. 6. . . . Officer Wilcock persona lly observed [Appellant] at the scene of the accident in a silver Kia Sorrento. 7. . . . Officer Wilcock also observ ed a second vehicle, an Infiniti FX35, at the scene and that it had “left rear quarter panel damage.”

. . . . 13. . . . [B]ased on Officer Wilcock’s training, personal observations and the totality of the facts and circumstances contained in the affidavit he had sufficient reason to believe that [Appellant] was intoxicated and to place her under arrest for DWI.

. . . .5 19. . . . [A] Denton County magistra te signed the search warrant at 6:29 AM on June 22, 2015 and . . . the verified information contained in the blood search warrant affidavit provided the magi strate with the existence of proper grounds to issue the blood search warrant. The trial court concluded: 1. Officer Wilcock’s affidavit set forth sufficient fa cts establishing probable cause that (1) [Appe llant] committed driving while intoxicated, (2) [her] blood[]sampl e constituted evidence of that offense, and (3) the sample was lo cated at or on [Appellant;] . . . [and] 2. The magistrate wh o signed the warrant had a substantial basis for concluding that [Appella nt’s] blood[]sample would probably provide evidence of intoxication because the affidavit supporting the warrant described significant signs of intoxication and supported the inference that [she] drove approx imately three-and-a-half hours before the warrant issued. . . . [Citations omitted.] II. Discussion A. Appellant’s Issue In her sole issue, Appellant contends that the trial court erred by denying her motion to suppress blood test results because the affidavit in support of the warrant was insufficient to establish prob able cause. Specif ically, she argues that the affidavit does not state what ti me the DWI occurred, so the magistrate had no way of knowing the length of time that had expired between Appellant’s last minute of driving and the magistra te’s signing of th e warrant. Thus, Appellant reasons, the magist rate had no basis for conc luding that evidence of intoxication would st ill be found in Appellant ’s blood. The State argues that the trial court’s denial of the motion to suppress was prop er because the magistrate6 could reasonably infer that the offense occurred just before Officer Wilcock was dispatched at 2:54 a.m. We agree. B. Standard of Review and Affidavit Requirements As this court has previously expl ained in a DWI blood-draw case, The police may obtain a def endant’s blood for a DWI investigation through a search wa rrant. A search warrant cannot issue unless it is base d on probable cause as determined from the four corners of an affidavit. Under the Fourth Amendment an d the Texas constitution, an affidavit supporting a search warrant is sufficient if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis fo r concluding that probable cause existed. Article 18.01(c) [of the co de of criminal procedure] requires an affidavit to set forth facts establ ishing that (1) a specific offense has been committed, (2) the item to be seized consti tutes evidence of the offense or evidence that a particular person committed the offense, and (3) the item is locate d at or on the person, place, or thing to be searched. Probable ca use for a search warrant exists if, under the totality of the circumstances presented to the magistrate in an affidavit, there is at least a fair probability or substantial chance that contraband or evidence of a crime will be found at the specified location. The affidavit must contai n sufficient information to allow the issuing magistrate to determi ne probable cause because the magistrate’s action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate’s duty does not occu r, courts are to conscientiously review the sufficiency of affidavit s on which warrants are issued. When reviewing a magistrate’s de cision to issue a warrant, we apply a deferential stan dard in keeping with the constitutional preference for a warrant. No magi cal formula exists for determining whether an affidavit provides a su bstantial basis for a magistrate’s probable cause determination. In stead, when a court reviews an issuing magistrate’s determinati on, the court should interpret the affidavit in a commonsense and re alistic manner, recognizing that the magistrate may draw reasonab le inferences. Nevertheless, a magistrate should not read into an affidavit material information that does not otherwise appear on its face. A magist rate should not have to resort so much to inferences and “common sense” conclusions7 that skirt the boundaries of what constitutes a substantial basis; when too many inferences must be drawn, the result is a tenuous rather than a substantial basis for the issuance of a warrant. Farhat v. State , 337 S.W.3d 302, 305–06 (T ex. App.—Fort Worth 2011, pet. ref’d) (citations and intern al quotation marks omitted). C. Substantive Law on Stalen ess of Blood Alcohol Content Staleness of the facts supporting a se arch warrant is properly determined by looking at the lapse of time between the occurrence of the events detailed in an affidavit and the issuance of the search warrant. Crider v. State , 352 S.W.3d 704, 707 (Tex. Crim. App. 2011). Whether the evidence sought is still where it was and available for taking depends on the type of offe nse, the type of suspect, the nature of the evidence, and the place to be searched. Id . at 708

. The Crider court explained, Alcohol in a person’s bloodstr eam disappears quite rapidly, thus the facts cited to support pr obable cause to se arch for alcohol in a DWI suspect’s bloodstream beco me stale quite rapidly. . . . Assuming that a suspect did not drink after being stopped by an officer, at least “some” eviden ce of alcoholic “intoxication” (defined as 0.08 BAC) should still be in his blood sy stem four hours later . . . . The higher the level of intoxica tion at the time of the stop, the longer some evidence of alcoholic intoxication would remain in the blood. . . . [I] t would be exceedingly unlikely that a person who was tested some 24 hours after he c eased drinking would register any detectable level of alcohol in his blood. Id. at 708–09 (citations omitted). In Crider , the officer’s affidavit stated th at he stopped Crider on June 6, 2008 after seeing him make a left-hand tu rn without signaling but provided no8 details about the time of the stop. The magistrate signed the warrant at 1:07 a.m. on June 7, 2008. The time gap could have b een as great as twentyfive hours. See id. at 710. The Texas Court of Criminal Appeals held that no fact in the affidavit led to a reasonable infe rence that the stop was close enough to the execution of the wa rrant that evidence of intoxica tion would still be in Crider’s blood when the warrant was executed. Id. at 711. State v. Jordan had the opposite result. 34 2 S.W.3d 565 (Tex. Crim. App. 2011). In Jordan , the affidavit was subscribed and sworn to on Ju ne 6, and the search warrant was issued at 3:54 a.m. that same day. Id. at 567–68. The affidavit stated that the officer had pr obable cause to believe that Jordan committed DWI on June 6, 20 08 and described police obse rvations of his driving violations and clues of intoxication. Id. But the affidavit did no t specifically state that those observations were al so made on June 6, 2008. Id. at 568. The Texas Court of Criminal Appeals held that beca use the date of the offense was included in the introductory statement of the af fidavit and the warr ant was issued at 3:54 a.m., then the magistra te who signed the warrant had a substantial basis to infer that the driving violations and into xication clues descri bed in the affidavit were observed on that same date. Id . at 571. The Jordan court also held, “Given the symptoms of intoxication descri bed in the affidavit, . . . the magistrate had a substantial basis to determine that evidence of intoxica tion would probably be found in [Jordan’s] blood with in four hours of the stop.” Id. at 572.9 D. Analysis This case is governed by Jordan . While Appellant contends that the magistrate needed to know specifically when the offe nse occurred to determine the probability that alcohol would have be en found in Appellant’s blood, enough evidence was present in the affidavit to allow the magi strate to reasonably infer that the offense occurred shortly before the dispatch. See id. at 570. After being dispatched on June 22, 2015 at 2:54 a.m., Officer Wilc ock found Appellant at the scene of the accident, slumped over in t he driver’s seat. Appellant admitted to both drinking and drivin g; and Appellant, her car, and the car she hit were all still at the scene of the acci dent. Appellant also admitted to then having an intoxication level of 3 on a scale of 1 to 10. Considerin g the facts provided in the affidavit, the magistrate could properly in fer that the accident occurred just prior to 2:54 a.m. The magistrate also had a substantial basis for concluding that Appellant’s blood would probably provide evidence of intoxication when the warrant was signed at 6:29 a.m. The facts in the a ffidavit suggest the o ffense occurred just before 2:54 a.m. The time lapse of le ss than four hours was sufficient for the magistrate to have had a substantial basis to determine that evidence of intoxication would likely be found in Ap pellant’s blood, espe cially in light of Appellant’s admission at the scene (after 2:54 a.m.) that her current level of intoxication was a 3 on a scale of 1 to 10. See id. at 571. We overrule Appellant’s sole issue.10 III. Conclusion Having overruled Appella nt’s sole issue, we a ffirm the trial court’s judgment.

/s/ Mark T. Pittman MARK T. PITTMAN JUSTICE PANEL: SUDDERTH, C.J.; MEIER and PITTMAN, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: October 26, 2017