In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-13-00426-CR 

JOSE MANUEL BARRIOS, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 287th District Court 

Bailey County, Texas 

Trial Court No. 2798, Honorable Gordon H. Green, Presiding 

 

December 2, 2014 

 

OPINION 

 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. 

Appellant, Jose Manuel Barrios, entered a plea of guilty to the offense of driving 

while intoxicated (DWI),1third or more,2and, pursuant to a plea agreement following a 

denial of his motion to suppress, was sentenced to serve 12 years confinement in the 

Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ). Appellant 

appeals contending that the trial court erred in overruling his motion to suppress 

 

1

See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2014).

2

See id. § 49.09(b)(2) (West Supp. 2014).
2

evidence collected as a result of a warrantless search because: 1) initially, the police 

officer lacked reasonable suspicion to detain him; and 2) the officer lacked probable 

cause to then arrest him for the offense of DWI. Further, appellant contends that the 

trial court erred in denying his motion to suppress the search warrant issued to obtain a 

blood specimen because the issuing magistrate is not an attorney licensed to practice 

law by the State of Texas. We will affirm the trial court’s ruling.

Factual and Procedural Background

On June 8, 2013, Officer Leonardo Aviles was on duty for the Muleshoe Police 

Department and, as a result of a complaint made regarding appellant, went to 

appellant’s home to investigate. Upon finding appellant at his residence, Aviles spoke 

to him about the complaint and observed that appellant had been drinking. As a result 

of his observations and appellant’s admissions that he had been drinking, Aviles

advised appellant that he should not be driving any more that evening.

Approximately 30 minutes after Aviles’s first interaction with appellant, Aviles

responded to a call from another individual, Chuck Fabela, complaining about appellant 

driving by his residence while yelling and making threats directed at Fabela and his 

family. After receiving the complaint from Fabela, Aviles drove to appellant’s residence. 

Appellant was not at home. Aviles chose to park near appellant’s residence and wait for 

him. Soon thereafter, Aviles observed a vehicle stop in front of Fabela’s residence. 

According to Aviles, he observed or heard appellant honking his horn and saying 

something toward the Fabela residence. 
3

Aviles then attempted to stop appellant, who drove around Aviles’s vehicle and 

proceeded to his home. Aviles followed appellant to his residence and ultimately 

arrested him for DWI. No field sobriety tests (FSTs) were administered to appellant at 

the scene. Upon arrival at the Bailey County jail, appellant stated he was physically 

unable to perform any FSTs. Thereafter, appellant agreed to take an intoxilyzer breath 

test. However, when the test was administered, appellant appeared to be blocking the 

mouthpiece with his tongue. Based upon appellant’s refusal to submit to a breath test, 

a search warrant affidavit to obtain a specimen of appellant’s blood was prepared.

The search warrant affidavit was presented to Justice of the Peace Debra 

Redwine. The record reflects that Redwine is not a licensed attorney in the State of 

Texas. Redwine reviewed the affidavit and signed the search warrant. A blood 

specimen was taken from appellant. 

After appellant was charged by indictment with the offense of DWI, third or more, 

his attorney filed a motion to suppress the evidence. Appellant sought to suppress both 

his initial detention and subsequent arrest, claiming that Aviles did not have reasonable 

suspicion to detain appellant and that, after appellant’s detention, Aviles lacked 

probable cause to arrest him for DWI. Appellant then filed an amended motion to 

suppress contending that, in addition to the other matters alleged, the search warrant 

was invalid because the reviewing magistrate, Redwine, is not a licensed attorney. The 

trial court overruled the motion to suppress. 

After the trial court’s ruling on the suppression issues, appellant entered into a 

plea agreement and pleaded guilty to the offense of DWI, third or more. Pursuant to the 
4

plea agreement, appellant was sentenced to 12 years confinement in the ID-TDCJ. 

Appellant now appeals based upon the trial court’s denial of the amended motion to 

suppress. We will affirm the trial court’s rulings.

Standard of Review

A trial court’s denial of a motion to suppress is reviewed under a bifurcated 

review process. See Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). 

We review the trial court’s factual findings for an abuse of discretion. Id. A trial court’s 

application of the law to the facts is reviewed de novo. Id. 

In our case, we will initially review the trial court’s rulings on the questions of 

reasonable suspicion to detain appellant and probable cause to arrest appellant under 

the bifurcated standard of review. Id. We give almost total deference to the trial court 

on questions of credibility and historical fact. See Valtierra v. State, 310 S.W.3d 442, 

447 (Tex. Crim. App. 2010). The trial court is the sole trier of fact and judge of the 

credibility of the witnesses and the weight to be given their testimony. See id. When, 

as here, the trial court makes explicit findings of fact, we are to determine whether the 

evidence, when viewed in the light most favorable to the trial court’s ruling, supports the 

fact findings. State v. Priddy, 321 S.W.3d 82, 86 (Tex. App.—Fort Worth 2010, pet. 

ref’d) (citing State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006)). 

As to the search warrant issue, we note that the fact that Redwine is not a 

licensed attorney is not contested. Accordingly, the only question before the Court is 

whether the trial court applied the law correctly. Thus, we review the denial of 
5

appellant’s motion to suppress the evidence obtained through the search warrant de 

novo. See Turrubiate, 399 S.W.3d at 150.

Reasonable Suspicion and Probable Cause

Appellant’s first issue contends that Aviles lacked reasonable suspicion to initially 

detain appellant. Further, if Aviles had reasonable suspicion to detain appellant, he did 

not develop any probable cause to believe that appellant had committed the offense of 

DWI. 

Applicable Law

The Fourth Amendment to the United States Constitution, along with Article I, 

Section 9, of the Texas Constitution protects individuals from unreasonable searches 

and seizures. State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013). Article 1.06 

of the Code of Criminal Procedure provides that the people shall be secure from all 

unreasonable seizures or searches. TEX. CODE OF CRIM. PROC. ANN. art. 1.06 (West 

2005).3 Thus, under Texas law, searches and seizures must be reasonable.

“A law enforcement officer’s reasonable suspicion that a person may be involved 

in criminal activity permits the officer to stop the person for a brief time and take 

additional steps to investigate further." State v. Kerwick, 393 S.W.3d 270, 273 (Tex. 

Crim. App. 2013) (quoting Hiibel v. Sixth Judicial District Court of Nev., 542 U.S. 177, 

185, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004)). "An officer must have reasonable 

suspicion that some crime was, or is about to be, committed before he may make a 

 

3

Further reference to the Texas Code of Criminal Procedure will be by reference to “art. ___,” or 

“article ____.”
6

traffic stop." State v. Duran, 396 S.W.3d 563, 568 (Tex. Crim. App. 2013) (citing 

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011)). Thus, a traffic 

stop based upon a reasonable suspicion that some crime was, or is about to be, 

committed does not violate Texas law. See id. An officer’s determination about 

reasonable suspicion must be supported by “specific and articulable facts.” See id. at 

568-69 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). 

In determining whether the officer had specific and articulable facts, a reviewing court 

uses an objective standard. See id. at 569. That is, considering only the information 

actually available to the officer at the moment of the seizure or search, would a man of 

reasonable caution be warranted to believe that the action taken was appropriate. See 

id.

Under article 14.01(b), "A peace officer may arrest an offender without a warrant 

for any offense committed in his presence or within his view." Art. 14.01(b) (West 

2005). Probable cause for a warrantless arrest under article 14.01(b), "may be based 

on [an officer's] prior knowledge and personal observations . . . . [A]n officer may rely 

on reasonably trustworthy information provided by another person in making the overall 

probable cause determination." State v. Woodard, 341 S.W.3d 404, 412 (Tex. Crim. 

App. 2011) (quoting Beverly v. State, 792 S.W.2d 103, 105 (Tex. Crim. App. 1990)). 

Thus, all of the information to support probable cause does not have to be within an 

officer's personal knowledge. Id. The ultimate question under article 14.01(b) is 

“whether at that moment the facts and circumstances within the officer's knowledge and 

of which he had reasonably trustworthy information were sufficient to warrant a prudent 

man in believing that the arrested person had committed or was committing an offense.” 
7

Id. (citing Steelman v. State, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002), as quoting 

Beverly, 792 S.W.2d at 105). 

Analysis

We begin our analysis with the findings of fact entered by the trial court, after 

hearing the testimony at the pre-trial hearing on appellant’s motion and amended 

motion to suppress the evidence. The trial court made the following findings of fact that 

are relevant to our inquiry:

1. [Appellant] was arrested on or about the 8th day of June, 2013, . . . for 

the offense of [DWI] by Leonardo Aviles.

20. On June 8, 2013, [Aviles] was investigating allegations that [appellant] 

threatened Chuck Fabela, a person the officer knew had allegedly 

assaulted the [appellant] prior to this investigaton.

21. On June 8, 2013, [Aviles] visited the residence of the [appellant] at 

approximately 9:00 p.m. During the visit:

A. the officer smelled a strong odor of alcoholic beverage on the 

[appellant’s] breath and observed that his eyes were red;

B. the [appellant] gave consent to search his vehicle;

C. during the search of the vehicle, the officer saw an open can of 

beer in the console which was cold to the touch;

D. the officer saw seven other cans of beer in the passenger seat; 

and,

E. the officer instructed the [appellant] to not drive his vehicle.

22.About one hour later, [Aviles] observed [appellant] operating his 

vehicle on a public road and heard the [appellant] honk his horn at a 

driveway located at 403 West Boston, Muleshoe, Texas, which was not 

the residence of the [appellant] and which is a violation of the Texas 

Transportation Code as well as a breach of the peace.

23.[Aviles] attempted to stop the [appellant’s] vehicle, but the [appellant] 

drove away and parked in his driveway. When the officer made 

contact with the [appellant], the [appellant] smelled of alcohol and his 

eyes were red. Also [Aviles] observed that only six cans of beer 

remained in the vehicle.
8

The trial court also made the following conclusion of law that is relevant to our analysis: 

5. The credibility of the affiant is sufficiently established in the affidavit 

for the search warrant.

The record reveals that the affiant for the search warrant to draw a specimen of 

appellant’s blood was Aviles. Further, a review of the affidavit reveals that it recites the 

events that led up to and resulted in the ultimate arrest of appellant for the offense of 

DWI. 

During the pre-trial hearing, Aviles was the only witness to provide testimony. 

Aviles’s testimony can be characterized as somewhat contradictory and, at times, 

confusing. His lack of knowledge of the definitions for intoxication and admission that 

he did not perform any FSTs on appellant prior to arresting him for DWI can be seen as 

problematic. However, the findings of fact filed by the trial court are supported by the 

record. See Priddy, 321 S.W.3d at 86.

Specifically, appellant had two separate interactions with Aviles on the night in 

question. During the first encounter, appellant met with Aviles outside appellant’s 

home. Aviles testified that, during this first encounter, he thought appellant appeared 

unstable and smelled like alcohol. Further, the record reflects that appellant admitted 

he had been drinking beer. While conducting a consent search related to the incident 

he was called about, Aviles found that appellant had seven unopened beers in his car 

and an eighth beer that was opened. Aviles concluded the first encounter with appellant 

by advising him not to be driving anymore that evening.
9

Approximately 30 minutes later, Aviles received a second call concerning 

appellant. The second call was from Chuck Fabela, who advised that appellant was 

driving by Fabela’s home yelling threats to kill him and his family. In response to this 

report, Aviles went back to appellant’s home but did not find appellant there. Aviles 

then pulled down the street, turned his patrol vehicle around, parked and waited. Within 

a matter of minutes, Aviles observed a vehicle approaching his direction. However, the 

vehicle stopped in front of the Fabela home. Aviles drove toward Fabela’s residence 

where he saw a white four-door car parked in front of the driveway of the Fabela 

residence. Further, he observed appellant to be the sole occupant and driver. Aviles 

testified on direct examination that he observed and heard appellant honk his horn and 

shout toward the residence. According to Aviles, such an action would have been a 

violation of the Texas Transportation Code. Specifically, parking across the driveway 

violated section 545.302, and honking the horn violated section 547.501. See TEX.

TRANSP. CODE ANN. §§ 545.302(b)(1), 547.501(c) (West 2011).

Aviles testified that, after observing appellant’s activity in front of the Fabela 

residence, he turned on his emergency lights and attempted to make a traffic stop. 

However, appellant did not stop but instead drove down the street a short distance to 

his residence. Aviles followed appellant and eventually confronted him in the driveway 

of appellant’s home. 

According to Aviles’s testimony on direct examination, when he approached 

appellant in front of his home, Aviles could smell alcohol on his breath, appellant’s eyes 

were red, and appellant had difficulty standing up straight. Prior to detaining or 

arresting appellant, Aviles looked into appellant’s car and saw that there were only six 
10

cans of beer inside. At this point in time, appellant was placed in handcuffs and 

arrested.

When asked why he did not have appellant perform any FSTs at the scene of the 

arrest, Aviles stated that appellant said he did not want to do any. After taking appellant 

to the jail, he was asked to perform FSTs but he refused, claiming to have a sore back 

and something wrong with his legs. At the jail, appellant was offered and agreed to take 

an intoxilyzer test. However, when the test was administered, appellant refused to 

properly complete the test. According to Aviles, appellant was blocking the breath tube 

with his tongue. 

The evidence deduced at the pre-trial hearing shows that appellant was stopped 

for a violation of the Texas Transportation Code. Such a violation supports the arrest of 

appellant without a warrant. See TEX. TRANSP. CODE ANN. § 543.001 (West 2011). 

Further, the temporary detention of appellant was supported by his threatening the 

residents of the Fabela home. Aviles had information from Fabela that appellant had 

been shouting threats toward Fabela and his family. Later, Aviles observed appellant 

parked across Fabela’s driveway mouthing something toward the residence. Based 

upon his prior conversation with Fabela, Aviles was warranted in detaining appellant to 

investigate his reasonable suspicion that appellant was committing the offenses of 

disorderly conduct and terroristic threat. See TEX. PENAL CODE ANN. §§ 22.07 (West 

2011), 42.01 (West Supp. 2014). Aviles, as demonstrated in the record, had specific 

and articulable facts upon which to base a detention of appellant. See Duran, 396 

S.W.3d at 568-69. The record before us clearly demonstrates support for the trial 
11

court’s determination that Aviles had probable cause to detain appellant.4 See 

Gutierrez v. State, 419 S.W.3d 547, 551 (Tex. App.—San Antonio 2013, no pet.) 

(holding that probable cause exists when the officer has a reasonable belief that, based 

on facts and circumstances within the officer’s personal knowledge, the individual 

committed or will soon commit an offense.) Here, the officer observed appellant commit 

at least two traffic offenses. This gave him the requisite reasonable suspicion to detain 

him, as found by the trial court.

As to the question of probable cause to arrest appellant for the offense of DWI, 

the record again supports the trial court’s determination that such probable cause 

existed. Aviles had two separate opportunities to observe appellant. On both 

occasions, Aviles noted signs of intoxication, strong odor of alcohol, and red eyes. 

Additionally, appellant admitted that he had been drinking beer prior to his first 

encounter with Aviles. At the time of the first encounter, Aviles noted one opened and 

seven unopened beers in appellant’s car. At the second encounter, there were only six 

unopened beers in appellant’s vehicle. This supports the inference that appellant 

continued to drink after his initial encounter with Aviles. Further, Aviles testified that, 

prior to placing handcuffs on appellant, he noted that appellant appeared to be unsteady 

on his feet.

To these observations, we add the actions of appellant. First, appellant knew he 

had already had one encounter with law enforcement after he had been drinking and 

had been advised to not drive anymore that evening. Yet, appellant ignored this 

 

4 While we agree that there was probable cause to detain appellant, we point out that all that is 

required for the temporary detention of one who is suspected of committing an offense is reasonable 

suspicion. See Kerwick, 393 S.W.3d at 273.
12

warning and drove. This can be seen as a lack of appreciation of his existing 

circumstances and diminished judgment. Moreover, there is the commission of two

offenses in the presence of an officer, one of which might be considered the more 

serious offense of terroristic threat. After, being observed committing these offenses, 

appellant ignored Aviles’s emergency lights and drove around Aviles’s car to return to 

his home. Again, this is demonstrative of a lack of judgment which can be explained by 

ingestion of alcohol. When the actions of appellant are reviewed objectively, in a totality 

of the circumstances review, we cannot say that a reasonable and prudent officer would 

not have come to the same conclusion that Aviles did, that is, that appellant committed 

the offense of DWI. See Woodard, 341 S.W.3d at 412. 

A review of appellant’s brief reveals that appellant’s contentions are centered on 

Aviles’s testimony upon cross-examination. First, Aviles was not sure about many of 

the legal principles involved in arresting an individual for the offense of DWI. Next, 

Aviles did, in fact, contradict some of the testimony that he had given on direct 

examination. Finally, according to appellant’s theory, the lack of FSTs and the content 

of the recording of the scene in front of Fabela’s home and at the time of appellant’s 

arrest reveal that Aviles did not have probable cause to arrest, rather, that Aviles 

arrested based upon a preconceived thought that appellant was intoxicated. Whatever 

Aviles’s subjective belief was is not the test, rather the test is an objective test based 

upon the totality of the circumstances. See Maryland v. Pringle, 540 U.S. 366, 371, 124 

S. Ct. 795, 157 L. Ed. 2d 769 (2003). 

Our review of the record demonstrates, to our satisfaction, that nearly all of 

appellant’s factual contentions may be classified as credibility issues. A reviewing 
13

court, such as ours, is directed to give great discretion to the trial court’s determination 

of the historical facts. See Valtierra, 310 S.W.3d at 447. We are reminded that the trial 

court is the sole trier of fact and judge of the credibility of the witnesses and the weight 

to be given their testimony. See id. Finally, the trial court, in its conclusion of law 

number 5, found that the affiant for the search warrant was credible. The record shows 

that the affiant for the search warrant was Aviles. The record also shows that the facts 

put forth in the search warrant affidavit mirror nearly all of the facts Aviles testified to at 

the pre-trial hearing. We are left with but one conclusion, the trial court found Aviles to 

be a credible witness and we may not, based upon this record, alter that conclusion. 

See id. 

As to appellant’s contention that Aviles’s decision to arrest appellant was not due 

to the facts and circumstances observed by the officer, but rather, was a result of 

Aviles’s preconceived determination that appellant was intoxicated, we note that this 

contention is entirely premised on appellant’s perception of Aviles’s subjective belief. 

However, instead of the subjective belief of the arresting officer, we must review the 

question of probable cause based upon an objective standard. See Pringle, 540 U.S. at 

371. 

Accordingly, the trial court did not abuse its discretion in denying appellant’s 

motion to suppress the evidence of the initial detention and subsequent arrest of 

appellant for DWI. See Turrubiate, 399 S.W.3d at 150. Appellant’s first issue is 

overruled.
14

Search Warrant

Applicable Law

The fact that the magistrate who issued the search warrant for appellant’s blood 

is not a licensed attorney is undisputed. Accordingly, we are dealing with the trial 

court’s application of the law to the facts and will review the trial court’s decision de

novo. See id. at 147. Further, we note that the ultimate issue will be controlled by our 

construction of article 18.01 of the Texas Code of Criminal Procedure. See art. 18.01 

(West Supp. 2014). Statutory construction is a question of law. State v. Vasilas, 187 

S.W.3d 486, 488 (Tex. Crim. App. 2006).

The non-consensual extraction of blood from a person implicates the privacy 

rights of the individual and is, therefore, protected by the Fourth Amendment to the 

United States Constitution. See Schmerber v. California, 384 U.S. 757, 768-69, 86 S. 

Ct. 1826, 16 L. Ed. 2d 908 (1966). Such protection is also recognized in the Texas 

Constitution. TEX. CONST. art. I, § 9; see also Escamilla v. State, 556 S.W.2d 796, 798 

(Tex. Crim. App. 1977). 

The issuance of a search warrant is governed by Chapter 18 of the Texas Code 

of Criminal Procedure. The issuance of an evidentiary search warrant is governed by 

art. 18.02(10). See art. 18.02(10) (West Supp. 2014); see also Clay v. State, 391 

S.W.3d 94, 97 (Tex. Crim. App. 2013) (holding that an evidentiary search warrant may 

issue for the extraction of blood). Article 18.01 contains several provisions governing 

who may issue search warrants. See art. 18.01.
15

At issue before the Court are the provisions of article 18.01(i) and (j). The State 

contends that the facts of this case are controlled by subsection (i), while appellant 

states that the issue will be decided by application of subsection (j). Thus, we are 

required to construe the statute.

Article 18.01(i) provides:

(i) In a county that does not have a judge of a municipal court of 

record who is an attorney licensed by the state, a county court 

judge who is an attorney licensed by the state, or a statutory county 

court judge, any magistrate may issue a search warrant under 

Subdivision (10) or Subdivision (12) of Article 18.02 of this code. 

This subsection is not applicable to a subsequent warrant under 

Subdivision (10) of Article 18.02 of this code.

Article 18.01(j) provides:

(j) Any magistrate who is an attorney licensed by this state may issue 

a search warrant under Article 18.02(10) to collect a blood 

specimen from a person who:

(1) is arrested for an offense under Section 49.04 . . . Penal Code; 

and

(2) refuses to submit to a breath or blood alcohol test.

Parties’ Contentions

The State contends that a justice of the peace is a magistrate as defined by 

statute. See art. 2.09 (West Supp. 2014). However, a justice of the peace is not one of 

the magistrates permitted to sign an evidentiary search warrant, see art. 18.02(10), 

pursuant to article 18.01(c). See art. 18.01(c). Further, Bailey County has no 

magistrates listed in article 18.01(c) who are licensed attorneys, other than the district 

judge. Therefore, according to the State’s theory, the exception delineated in article 
16

18.01(i) is applicable. The State contends that the plain language of the statute leads to 

this conclusion.

Appellant, however, contends that the plain language of the entirety of article 

18.01 leads to a different conclusion. Appellant points out that the plain language of 

article 18.01(j) permits “[a]ny magistrate who is an attorney licensed by this state” to 

issue a search warrant to seize blood; however, the requirement to be a licensed 

attorney would exclude Justice of the Peace Redwine. Therefore, appellant contends 

the warrant at issue was not proper.

Analysis

The different contentions of appellant and the State require this Court to construe 

the statute at issue. In so doing, we are required to give effect to the literal text unless 

the meaning of the statute is ambiguous or the plain meaning leads to an absurd result 

that the legislature could not have intended. See Chiarini v. State, 442 S.W.3d 318, 320

(Tex. Crim. App. 2014) (citing Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 

1991)). Further, we must seek to effectuate the intent or purposes of the legislators 

who enacted the legislation. See Vasilas, 187 S.W.3d at 488. 

To properly analyze the question before the Court, we must begin with the 

basics. Article 2.09 provides a rather extensive list of whom, among the numerous 

listed officials, are considered to be magistrates. See art. 2.09. Search warrants may 

be signed by a magistrate. See art. 18.01(a). However, certain specific types of 

warrants, like evidentiary warrants issued pursuant to article 18.02(10), may only be 
17

issued by certain specified magistrates. See art. 18.01(c). Yet, the same provision that 

limits who may issue a search warrant also contains the exceptions at issue. See id.

The plain language of article 18.01(i) tells us that, if a county does not have a 

municipal judge who is a licensed attorney, a county judge who is a licensed attorney, 

or a statutory county judge, then, in that situation, any magistrate may issue a search 

warrant under article 18.02(10). See art. 18.01(i). This version of article 18.01(i) was 

passed in 2007. See Act of May 15, 2007, 80th Leg., R.S., ch. 355, 2007 Tex. Gen. 

Laws 652. Very clearly, there can be no misunderstanding about the direction of the 

legislature in such a situation. The legislature was clearly trying to ease the burden on 

rural counties by expanding the list of magistrates who could issue article 18.02(10) 

search warrants. See Muniz v. State, 264 S.W.3d 392, 398 (Tex. App.—Houston [1st

Dist.] 2008, no pet.) (construing the prior version of article 18.01(i)). The plain language 

is clear and unambiguous. See Chiarini, 442 S.W.3d at 320. 

Turning to the second provision at issue, article 18.01(j), we find that the statute 

says that any magistrate who is a licensed attorney may issue an article 18.01(10) 

search warrant to collect a specimen of blood when a citizen is accused of one of the 

intoxication offenses listed and has refused to give a specimen of breath or blood. See 

art. 18.01(j). This subsection of article 18.01 was passed in 2009. See Act of June 19, 

2009, 81st Leg., R.S., ch. 1348, 2009 Tex. Gen. Laws 4262-65. When read alone, this 

provision clearly states that any magistrate who happens to be a licensed attorney in 

the State of Texas may sign a blood draw search warrant. 
18

Appellant contends that subsection (j) acts as a limitation on subsection (i). The 

thrust of appellant’s position is that, after granting the rural counties the opportunity to 

utilize their magistrates when they did not have any who qualified to sign a search 

warrant issued under article 18.02(10), the legislature subsequently withdrew that 

authority by passing subsection (j). Under appellant’s theory, the only magistrate who 

may sign a search warrant for seizure of blood is a magistrate who has a law license. 

To come to this conclusion, appellant must, by necessity, substitute the word 

“only” for the word “any.” Any is the first word of this provision and, as used, is an 

adjective used to indicate a person or thing that is not particular or specific. See 

WEBSTER’S THIRD NEW INT’L DICTIONARY 97 (3rd ed. 1976). On the other hand, only is an 

adjective meaning alone in a class or category; existing with no other or others of the 

same kind. See id. at 1577. Thus, under appellant’s theory, we have gone from 

expanding the number of magistrates available to restricting the number of magistrates 

available. Appellant contends that this is what the legislature had in mind when it 

passed subsection (j) in 2009. This is so, according to appellant, because a blood draw 

is such an invasive matter, as recognized by the United States Supreme Court decision 

in Schmerber. See Schmerber, 384 U.S. at 768-69. However, the only requirement of 

Schmerber is that the prerequisites of the Fourth Amendment to the Constitution be met 

prior to the collection of any blood specimen. See id. at 771. 

As opposed to appellant’s contentions, our reading of subsection (j) leads us to 

conclude that it is clear and not ambiguous. See Chiarini, 442 S.W.3d at 320. Very 

clearly, the statute says that any magistrate who is a licensed attorney can sign a 

warrant to draw a blood specimen. Further, the two provisions at issue can be 
19

reconciled to effectuate the purpose for which they were enacted. See Vasilas, 187 

S.W.3d at 488.

Simply put, subsection (c) of article 18.01 limits the magistrates who may sign 

search warrants. It is also clear that the passage of subsection (i) of article 18.01 was 

intended to expand the number of magistrates who could sign warrants in rural areas 

where there were none of the magistrates listed in subsection (c) to be found. See 

Muniz, 264 S.W.3d at 398. By passing the exception in subsection (j), it is this Court’s 

view that the legislature was intending to expand, not contract, the number of 

magistrates available to sign search warrants for blood. Very consciously, the 

legislature used the term “any” in crafting this statute. Thus, it is apparent that the 

legislature wanted more magistrates available to review search warrants for blood, not 

less. This interpretation of the two provisions effectuates and harmonizes the statute so 

that all portions of the statute may be given effect. See TEX. GOV’T CODE ANN. § 

311.021 (West 2013); Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011) 

(holding that to determine the collective intent of the legislature in passing legislation, 

we look first to the literal text).

Finally, despite the position of appellant, we do not find that such an 

interpretation of the statute creates an absurd result. Instead, it would be appellant’s 

position that would create an absurd result. Under the interpretation suggested by 

appellant, the legislature would have to be presumed to have intended to undo the 

exception granted by subsection (i) to the prohibitions of subsection (c) when it passed 

subsection (j). Such a result is an absurd result for it violates the very basic principal 
20

that we assume the legislature intended the entire statute to be effective. See TEX.

GOV’T CODE ANN. § 311.021; Clinton, 354 S.W.3d at 800. 

We therefore conclude that Redwine, acting in her capacity as a magistrate 

pursuant to the exception of subsection (i), properly signed and issued the search 

warrant for a specimen of appellant’s blood. This means that the trial court did not 

commit error when it overruled appellant’s motion to suppress. Accordingly, appellant’s 

issue to the contrary is overruled.

Conclusion

Having overruled appellant’s issues, the trial court’s judgment is affirmed.

Mackey K. Hancock

 Justice

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