## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 14 - 00289 - CR
THE STATE OF TEXAS STATE V. SCOTT ELLERY CRAWFOR D JR. APPELLEE

---------- FROM COUNTY CRIMINAL COURT NO. 4 OF TARRA NT COUNTY TRIAL COURT NO. 1344 184

---------- 

### OPINI ON

---------- Appellee Scott Ellery Crawford Jr. moved for en banc reconsideration of this panel’s March 19, 2015 memorandum opinion

. See Tex. R. App. P. 49.7. Acting sua sponte, we withdraw our March 19, 2015 memorandum opinio n and judgment and substit ute this opinion and judgment

. See Tex. R. App. P. 19.1(b). Crawford’s motion for en banc reconsideration is, therefore, rendered moot. See Taflinger v. State , 414 S.W.3d 881, 883 (Tex. App.

— Houston [1st Dist.] 2013, no pet.).2 The State appeals the tri al court’s order granting Crawford’s motion to suppress the admission of the results of a blood test taken pursuant to a search warrant to determine his blood
- alcohol concentration. Be cause we conclude that the magistrate had a substantial basis upon whic h to determine probable cause supported issuance of the requested warrant, we reverse the trial court’s order and remand to that court for further, consistent proceedings. I. BACKGROUND In the early morning hours of August 31, 2013, during a no
- refusal weekend, 1 Officer Rafael Suarez with the Euless Police Department pulled over a speeding car that was travelling at sixty
- one miles per hour in a forty
- five
- mile
per - hour zone . When Suarez approached the driver

— Crawford

— he smelled alcohol on Crawford’s br eath, noted that Crawford’s speech was slurred, and saw that Crawfo rd appeared to have bloodshot eyes. Crawford admitted to Suarez that he had been drinking. Crawford failed the standard field
- sobriety tests. Suarez arrested Crawford for driving while i ntoxicated and transported him to the jail where Crawford re fused to provide a breath sample

. See Tex. Transp. Code Ann . §§ 724.011, 724.013 (West 2011 ). Suarez also arrested Crawford’s passenger for public intoxication. See Tex. Penal Code Ann. § 49.02 (West 2011).

1 During a no
- refusal weekend, magistrates are on stand
- by to sign warrants and the publ ic is informed that a driver suspected of driving while intoxicated will have their blood drawn pursuant to a warrant if the driver does not consent to provide a breath sample. See Burks v. State , 454 S.W.3d 705, 707 (Tex. App.

— Fort Worth 2015, pet. filed ).3 Suarez then prepared an affidavit recounting these facts to establish probable cause and requesting that a search warrant be iss ued in order to collect a blood specimen from Crawford. See Tex. Code Crim. Proc. Ann. art. 18.01(b) , (j) (Wes t 2015 )

. He further averred that he had seen intoxicated persons “on many occasions in the past” and that his experience and training led him to conclude that Crawford was intoxicated. He swore to the affi davit in front of a certified peace officer, Elij iah Abredoh . Because the magistrate for the City of Euless was not available, Suarez called the City of Fort Worth and was instructed to fax the affidavit to the city, which he did. This was the regular procedure of the police department for o fficers to follow if a Euless magistrate was unavailable. After reviewing Suarez’s sworn affidavit and “all evidence available,” Connie Langston, 2 a municipal
- court magistrate for the City of Fort Worth, concluded probable cause for a warrant existed, signed a searc h warrant , and faxed it back to Suarez approximately ninety minutes after Suarez arrested Crawford

. As part of the warrant, the magistrate stated that probable cause for the search warrant had been established by facts stated in Suarez’s “affidavit in wri ting, under oath,” which had “been made before” her. Testing of the resulting blood specimen revealed that Crawford’s blood
alcohol concentration was 0.15, almost twice the legal limit. See Tex. Penal Co de Ann. § 49.01(2)(B) (West 2011 ). A grand jury indicted Crawford with

2 We will refer to Langston as “the magistrate” for the remainder of this opinion.4 driving while intoxicated and included an enhancement paragraph alleging that Crawford had previously been convicted of misdemeanor escape in 2007. See id. § 12.43 (West 2011) , §§ 38.06, 49.04 (West Supp. 2014 ). Crawford filed a
mo tion to suppress the test results, arguing that (1) the stop, detention, and arrest were not support ed by probable cause, (2) the warrant was not supported by probable cause and “was executed by unlawful means,” and (3) the scope of the search exceed ed tha t authorized by the warrant. The trial court held a hearing on Crawford’s motion on July 2, 2014. See Tex. Code Crim. Proc. An n. art. 28.01, § 1(6) (West 2006 ). Crawford ensured a subpoena was issued to the magistrate summoning her to appear at the he aring, but the record does not reflect that she was validly served

. 3 See id. art s . 24.03 , 24.04(a) (West 2009 ). The magistrate , who at the time of the hearing was no longer employed as a magistrate for Fort Worth, did not appear

. Suarez appeared and tes tified to the facts leading to the issuance of the search warrant. After Suarez’s testimony, Crawford w ithdrew his request for the clerk to issue an attachment for the magistrate and stated that “all the evi d ence is before the Court.” See id. art. 24.12 (West 2009). The trial court granted the motion to suppress, and the State filed a notice of appeal from the ruling. See id. ar t. 38.23 (West 2005), art. 44.01(a)(5) (West Supp. 2014 ). Crawford filed a request for findings of fact and conclusions of l aw

3 In subsequent finding s of fact , the trial court found that the magistrate had been “properly served.”5 along with proposed findings and conclusions for the trial court’s signature, which delineated forty
- seven proposed findings and conclusions. In his request and proposed findings and conclusions, Crawford conceded that Suarez’s stop and investigation l eading to Crawford’s arrest were “ legally justified.” The trial court entered findings and conclusions, essentially adopting Crawford’s proposed findings and conclusions, and concluded that the search warrant was not supported by probable cause. On appea l, the State raises seven points, which it groups into two categories: (1) the totality of the information in Suarez’s affidavit provided a substantial basis for the magistrate to conclude that probable cause existed for the search warrant and (2) the pro cedures Suarez used to obtain the search warrant were lawfu l and , taken in tandem with the presence of probable cause, implicate d the good
- faith exception allowing admission of the blood
- test results. II. PROBABLE CAUSE FOR SEARCH WARRANT A. S TANDARD A ND S COPE OF R EVIEW When reviewing a trial court’s ruling on a motion to suppress, appellate
co urts commonly employ a well
- trod, bifurcated standard of review : (1) total deference is afforded to the trial court ’s rulings on questions of histo rical fact an d to application
- of
- law
- to
- fact questions that turn o n credibility and demeanor but (2) a de novo standard is applied to a trial court’s application of the law to the facts. See Amador v. State , 221 S.W.3d 666, 673 (Tex. Crim. App. 200 7). While this case involves our examination of the trial court’s ruling on Crawford’s motion6 to suppress, it actually involves our secondary appellate review of the magistrate’s probable
- cause determination in issuing the search warrant, which is a similar , yet distinct , in quiry. See State v. Webre , 347 S.W.3d 381, 384 (Tex. App.

— Austin 2011, no pet.); 2 Wayne R. LaFave, Search & Seizure § 3.1(d) (5th ed. 2012); 6 LaFave, supra , § 11.7(c)

. Because we are a second
- level appellate court reviewing the trial court’s primary re view of the magistrate’s probable
- cause determination, we are to use a “substantial basis” standard of review based on the “totality of the circumstances” presented to the magistrate. 4 Illinois v. Gates , 462 U.S. 213, 236

– 39, 103 S. Ct. 2317, 233 1

– 32 (198 3) ; Flores v. State , 319 SW.3d 697, 702 (Tex. Crim. App. 2010)

. In o ther words, we review the trial court’s probable
- cause determination de novo , applying the same substantial
- basis standard as the trial court

. See State v. Duncan , 72 S.W.3d 803, 806 (Te x. App.

— Fort Worth 2002, pet. ref’d); 6 LaFave, supra , § 11.7(c)

. This standard confers the appropriate deference on the magistrate’s determination given “ the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant. ” Gates , 462 U.S. at 236, 103 S. Ct. at 2331. Of course, a search warrant may not issue unless it is based upon p robable cause, established by a sworn affidavit

. U.S. Const. amend. IV; Tex. Code Crim. Proc. Ann. art. 18.01(b); State v. Duarte , 389 S.W.3d 349, 354 (Te x. Crim. App. 2012). Probable cause exists when, under the totality of the circumstances, there is a fair probability or a substantial chance that evidence of

4 We discuss this test more fully in the next paragraph s
.7 a crime will be found at the specified location. Gates , 462 U.S. at 238, 243 n.13, 103 S. Ct. at 2332, 2335 n.13; Duarte , 389 S.W.3d at 354. In assessing the sufficiency of an affidavit for a search warrant, the reviewing court

— whether the trial court or an appellate court

— is limited to the four corners of the affidavit and must uphold the magistrat e’s probable
- cause determination if the magistrate had a substantial basis for concluding that a search would uncover evidence of a crime. Gates , 462 U.S. at 236, 103 S. Ct. at 2331 ; Duarte , 389 S.W.3d at 354 ; Jones v. State , 833 S.W.2d 118, 123 (Tex. Cri m. App. 1992), cert. denied , 507 U.S. 921 (1993)

. This is a flexible and undemanding standard that allows a magistrate to draw reasonable, common
- sense inferences from the facts and circumstances contained in the affidavit ; however, a magistrate may not m erely rubber stamp the bare conclusions of others. Gates , 462 U.S. at 239, 103 S. Ct. at 2333; Duarte , 389 S.W.3d at 354; State v. McClain , 337 SW.3d 268, 271 (Tex. Crim. App. 2011); Flores , 319 S .W.3d at 702

. Accordingly, reviewing courts must “conscien tiously review the sufficiency of affidavits on which warrants are issued” to ensure issuing authorities have not impermissibly abdicated their duty to determine probable cause. Gates , 462 U.S. at 239, 103 S. Ct. at 2333

. After reviewing the supporting a ffidavit rea listically and not hyper
technically , a reviewing court must defer to the magistrate’ s decision as long as the magistrate had a substantial basis for concluding that probable cause existed. Duarte , 389 S.W.3d at 354 ; McLain , 337 S.W.3d at 271

. Indeed, any review of a magistrate’s determi nation of probable cause afford s the magistrate’s8 decision “great deference.” Gates , 462 U.S. at 236, 103 S. Ct. at 2331 ; see McLain , 337 S.W.3d at 271 ; State v. Coker , 406 S.W.3d 392, 396 (Tex. App.

— Dallas 20 13, pet. ref’d) ; Farhat v. State , 337 S.W.3d 302, 306 (Tex. App.

— Fort Worth 2011, pet. ref’d)

. The reviewing court’s focus cannot be on what other facts could or should have been included in the affidavit, but rather must be on the combined logical force of facts that actually are in the affidavit. Duarte , 389 S.W.3d at 354

– 55. The reliability of the affiant and his sources of information are part of the totality of the circumstances that the magistrate should evaluate in making her probable
- cause determ ination. See Coker , 406 S.W.3d at 396 ; Munoz v. State , No. 02
- 12
- 00513
- CR, 2013 WL 4017622, at *3

– 4 (Tex. App.

— Fort Worth Aug. 8, 2013, no pet.) (mem. op., not designated for publication); cf. Farhat , 337 S.W.3d at 307

– 10 (concluding affidavit did not pro vide substantial basis for probable
- cause finding supporting blood
- draw warrant because affidavit did not contain arresting officer’s personal observations of intoxication and, thus, impermissibly relied on unsupported inferences ). B. A PPLICATION Suarez swore in his affidavit that after pulling Crawford over for speeding at 2:34 a.m., he smelled “an unknown odo r of an alcoholic beverage odor” on Crawford’s breath, Crawford’s speech was slurred, and Crawford’s e yes appeared to be bloodshot. When Suarez a sked Crawford whether he had been drinking, Crawford admitted that he had. Crawford failed unspecified standard field
- sobriety tests and refused to provide a bre ath specimen

. Suarez averred9 that he was a peace officer, had previously seen intoxicated per sons many times, and suspected that Crawford was intoxicated at the time Suarez pulled him over. Suarez requested a s earch warrant for Crawford’s blood specimen , which had a fair probability or a substantial chance of producing evidence that Crawford
comm itted the offense of driving while intoxicated. The magistrate reviewed the evidence included in the sworn affidavit and determined that probable cause existed for the issuance of a search warrant for Crawford’s blood specimen. These facts found in the four corners of Suarez’s affidavit and the reasonable inferences derived from them , taken as a whole, provided a substantial basis by which the magistrate could have reasonably concluded that a blood
- alcohol test had a fair probability or a substantial ch ance to uncover evidence that Crawford had been driving while intoxicated. See State v. Jordon , 342 S.W.3d 565, 569

– 72 (Tex. Crim. App. 2011); State v. Moore , No. 05
- 14
- 00123
- CR, 2014 WL 5478209, at *3 (Tex. App.

— Dallas Oct. 30, 2014, pet. ref’d) (mem. op ., not designated for publication); State v. Castro , No. 07
- 13
- 00146
- CR, 2014 WL 4808738, at *4

– 5 (Tex. App.

— Amarillo Sept. 23, 2014, no pet.) (mem. op., not designated for publication) ; Webre , 347 S.W.3d at 383, 38 5

– 8 6. Because the magistrate had a subst antial basis to support her probable
- cause determination, the trial court (and this court on appeal) was required to defer to that determination. In the findings and conclusions, the trial court apparently failed to defer to the magistrate’s probable
- ca use determination and impermissibly credited10 conflicting inferences to be drawn from the affidavit. For example, the trial court found that when Crawford admitted he had been dri nking, Suarez failed to clarify in the affidavit that Crawford had been drink ing “water, milk, a soft drink, an iced tea, an energy drink, lemonade, beer, wine or some other type of alcoholic beverage.” The tr ial court also found that Suarez ’s affidavit statement that Crawford failed the field
- sobriety tests was insufficient to es tablish probable cause because the officer failed to s pecify what tests were given or how Crawford failed the tests administered

. Finally, the trial court found that there was no probable cause shown by the affidavit because Suarez failed to recite that C rawford had “unsteady balance, needed support, was falling down, staggering, .

. . was swaying, was heavy footed, or that his clothing was disorderly, soiled or stained, unable to follow instructions or commands, unable to retrieve driver [’] s license, insu rance proof or other identifying information. ” In total, thirtee n of the trial court’s twenty
- four fact ual findings regarding the affidavit pointed out what evidence was missing or could have been part of the affidavit. The trial court in making these fi ndings employed a hyper
- technical reading of the affidavit that focused on what facts were not included , which is prohibited in a review of a magistrate’s probable
- cause determination and fails to accord it the appropriate deference

. Duarte , 389 S.W.3d at 354

– 55. Merely because conflicting inferences could be drawn from the affidavit does not justify a reviewing court’s conclusion that the magistrate did not have a substantial basis upon which to find probable cause. See Stanley v. State , No. 02
- 10
- 00342
- CR,11 2011 WL 3211241, at *3

– 4 (Tex. App.

— Fort Worth July 28, 2011, no pet.) (mem. op., not designated for publication). The inferences the magistrate reasonably could have drawn from the four corners of the affidavit gave her a substantial basis to conclu de a blood test had a fair probability or a substantial chance to provide evidence of Crawford’s intoxication. See Munoz , 2013 WL 4017622, at *3; Webre , 347 S.W.3d at 385

– 86, 388; Stanley , 2011 WL 3211241, at *4. The trial court erred by concluding other wise. III. DEFECTS IN THE WARRANT The State also argues that because the affidavit established probable cause sufficient to justify the magistrate’s issuance of a warrant, any defects in the warrant did not render the blood
- test evidence inadmissible. T he State specifically attacks the trial court’s fi nding that the magistrate’s stat ement in the warrant that the affidavit was “made before” her was untrue and rendered the warrant fatally defective because it was “premised on a false statement.” See Tex. Code Crim. Proc. Ann. art. 18.01. The exclusionary rule, urged by Crawford in seeking suppression of the blood
- test results, contains a limited exception allowing admiss ion of otherwise
inadmissible evidence: the good
- faith exception. See generally Te x. Code Crim. Proc. Ann. art. 38.23. This exception provide s that even if evidence was unconstitutionally or illegally obtained, it nevertheless may be admitted if it was “obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.” Id. art.12 38.23(b). Therefore, evidence is not rendered inadmissible based on a defect in the warrant found after its execution if the warrant was based on a neutral magistrate’s determina tion of probable cause. See Dunn v. State , 951 S.W.2d 478, 479 (Tex. Crim. App. 1997). We have concluded that the magistrate had a substantial basis upon which to conclude probable cause existed for a search warrant. Thus, the good
- cause exception to th e exclusionary rule allowed admission of the blood
- test results even if the warrant contained a defect. 5 IV. CONCLUSION The facts stated in the four corners of Suarez’s affidavit provided a substantial basis upon which the magistrate could have reasonabl y determined probable cause existed to issue a search warrant. By delineating what was missing from the affidavit and concluding probable cause was not present based on those missing facts, the trial court impermissibly strayed from the deferential,

5 We are not holding that (1) the magistrate’s statement that the affidavit was “made before” her was false; (2) such a statement, even if false, rendered the warrant fatally defective ; or (3) that an affiant must be visually or aurally before the magistrate befor e a warrant validly may be signed

. Cf. Clay v. State , 391 S.W.3d 94, 102

– 04 (Tex. Crim. App. 2013) (holding officer not required to swear out affidavit in the physical presence of magistrate and noting that “before” included “under the official purview of ,” not solely corporal presence )

. Indeed, a search warrant, as opposed to an arrest warrant, requires only a supporting, sworn affidavit and does not specify th at the affiant must be physically “before” the magistrate for a valid warrant to issue

. Compar e Tex. Code Crim. Proc. Ann. art. 18.01(b) , and id. a rt. 18.04 (West 2015 ), with id. art. 15.03(a)(2) ( West 2015 ). A search warrant is sufficient if it is issued under the name of the State of Texas, identifies what is to be seized, commands any peace off ice r of the proper count y to conduct a search, and is dated and signed by the magistrate. Tex. Code Crim. Proc. Ann. art. 18.04; Gish v. State , 606 S.W.2d 883, 885 (Tex. Crim. App. [Panel Op.] 1980). The search warrant in this case did so and, therefore, was sufficient.13 subst antial
- basis test , which binds reviewing courts . Therefore, the trial court erred by failing to defer to the magistrate’s probable
- cause determination , given the probable
- cause facts shown in the four corners of the affidavit . The probable cause supporti ng the search warrant, therefore, a llows admission of the blood
test results obtained under the warrant based on the good
- faith exception to the exclusionary rule. Accordingly, we sustain the State’ s first, second, third, fourth, and seventh points , rever se the trial court’s order granting Crawford’s motion to suppress, and remand the case to the trial court for further proceedings consistent with this opinion. See Tex. R. App. P. 43.2(d), 43.3. We need not address the State’s two remaining points. See Tex. R. App. P. 47.1.

/s/ Lee Gabriel LEE GABRIEL JUSTICE PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ. DAUPHINOT, J. filed a concurring opinion PUBLISH DELIVERED: May 21, 2015