Jasmyne Donosky v. State ( 2017 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00399-CR
JASMYNE DONOSKY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 3 OF DENTON COUNTY
TRIAL COURT NO. CR-2016-00372-C
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MEMORANDUM OPINION1
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Appellant Jasmyne Donosky was arrested for driving while intoxicated
(DWI), see Tex. Pen. Code Ann. § 49.04 (West Supp. 2016), and after she
refused to provide a breath or blood sample, a magistrate issued a warrant for
the search and seizure of her blood. After the trial court denied Appellant’s
motion to suppress her blood test results, she pled guilty to DWI pursuant to a
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See Tex. R. App. P. 47.4.
plea bargain, and the trial court convicted her and sentenced her to serve
150 days’ confinement in the Denton County Jail and to pay a fine of $500,
suspending imposition of confinement and placing her on community supervision
for eighteen months.
Appellant preserved her right to appeal the denial of her motion to
suppress, and in her sole issue, she contends that the trial court erred by
denying her motion to suppress the blood test results because the affidavit in
support of the warrant was insufficient to establish probable cause. Because we
hold that the affidavit sufficiently established probable cause, we affirm the trial
court’s judgment.
I. Statement of Facts
A. Facts of the Offense Found in Officer Wilcock’s Affidavit
The following information appears 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, Texas, of Denton County. When he arrived, Officer
Wilcock first found a damaged Infiniti FX35 at 6745 Davidson Street and then
followed black tire markings on the concrete 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 streets intersect and the
two addresses are approximately .2 miles apart. See Tex. R. Evid. 201.
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slumped over in the driver’s seat. When Officer Wilcock instructed Appellant to
unlock the door, she woke up and first attempted 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, Appellant stated that she had been
driving, had consumed “two or three” drinks, and was driving from a friend’s
house when she hit a vehicle. She then pulled 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 of intoxication as a “three (3).”
When Appellant exited her car at Officer Wilcock’s instruction, he noticed
that she was unsteady on her feet and swayed while walking. He also observed
several signs of intoxication, including glassy eyes, thick-tongued speech, and
the odor of an alcoholic beverage. Officer Wilcock conducted standard field
sobriety tests during which he recorded numerous clues of intoxication, and he
ultimately concluded that Appellant failed the horizontal gaze nystagmus test, the
walk-and-turn test, and the one-leg stand test. 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.
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B. The Warrant, the Denial of the Motion to Suppress, and the Plea Bargain
At 6:29 a.m., about three and a half 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 pursuant 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 that Appellant requested in the trial court
regarding the denial of the motion to suppress. The trial court found as follows:
1. Officer Simon Wilcock of The Colony Police Department
applied for a search warrant to obtain a sample of [Appellant’s] blood
on or about June 22, 2015 based on his belief that [she] committed
the offense of operating a motor vehicle while intoxicated.
....
5. . . . Officer Wilcock was dispatched 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 personally observed [Appellant] at the
scene of the accident in a silver Kia Sorrento.
7. . . . Officer Wilcock also observed 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.
....
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19. . . . [A] Denton County magistrate 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 magistrate with the
existence of proper grounds to issue the blood search warrant.
The trial court concluded:
1. Officer Wilcock’s affidavit set forth sufficient facts establishing
probable cause that (1) [Appellant] committed driving while
intoxicated, (2) [her] blood[]sample constituted evidence of that
offense, and (3) the sample was located at or on [Appellant;] . . .
[and]
2. The magistrate who signed the warrant had a substantial
basis for concluding that [Appellant’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 approximately 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 probable cause. Specifically, she argues
that the affidavit does not state what time 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 magistrate’s signing of the warrant. Thus,
Appellant reasons, the magistrate had no basis for concluding that evidence of
intoxication would still be found in Appellant’s blood. The State argues that the
trial court’s denial of the motion to suppress was proper because the magistrate
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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 explained in a DWI blood-draw case,
The police may obtain a defendant’s blood for a DWI
investigation through a search warrant. A search warrant cannot
issue unless it is based on probable cause as determined from the
four corners of an affidavit.
Under the Fourth Amendment and 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 for concluding that probable cause
existed. Article 18.01(c) [of the code of criminal procedure] requires
an affidavit to set forth facts establishing that (1) a specific offense
has been committed, (2) the item to be seized constitutes evidence
of the offense or evidence that a particular person committed the
offense, and (3) the item is located at or on the person, place, or
thing to be searched. Probable cause 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 contain sufficient information to allow the
issuing magistrate to determine 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 occur, courts are to conscientiously
review the sufficiency of affidavits on which warrants are issued.
When reviewing a magistrate’s decision to issue a warrant, we
apply a deferential standard in keeping with the constitutional
preference for a warrant. No magical formula exists for determining
whether an affidavit provides a substantial basis for a magistrate’s
probable cause determination. Instead, when a court reviews an
issuing magistrate’s determination, the court should interpret the
affidavit in a commonsense and realistic manner, recognizing that
the magistrate may draw reasonable inferences. Nevertheless, a
magistrate should not read into an affidavit material information that
does not otherwise appear on its face. A magistrate should not have
to resort so much to inferences and “common sense” conclusions
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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 (Tex. App.—Fort Worth 2011, pet.
ref’d) (citations and internal quotation marks omitted).
C. Substantive Law on Staleness of Blood Alcohol Content
Staleness of the facts supporting a search 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 offense, 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 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. . . .
Assuming that a suspect did not drink after being stopped by
an officer, at least “some” evidence of alcoholic “intoxication”
(defined as 0.08 BAC) should still be in his blood system four hours
later . . . .
The higher the level of intoxication 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 ceased drinking would register any
detectable level of alcohol in his blood.
Id. at 708–09 (citations omitted).
In Crider, the officer’s affidavit stated that he stopped Crider on June 6,
2008 after seeing him make a left-hand turn without signaling but provided no
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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 been as great as twenty-
five hours. See id. at 710. The Texas Court of Criminal Appeals held that no fact
in the affidavit led to a reasonable inference that the stop was close enough to
the execution of the warrant that evidence of intoxication would still be in Crider’s
blood when the warrant was executed. Id. at 711.
State v. Jordan had the opposite result. 342 S.W.3d 565 (Tex. Crim. App.
2011). In Jordan, the affidavit was subscribed and sworn to on June 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 probable cause to believe that Jordan
committed DWI on June 6, 2008 and described police observations of his driving
violations and clues of intoxication. Id. But the affidavit did not specifically state
that those observations were also made on June 6, 2008. Id. at 568. The Texas
Court of Criminal Appeals held that because the date of the offense was included
in the introductory statement of the affidavit and the warrant was issued at
3:54 a.m., then the magistrate who signed the warrant had a substantial basis to
infer that the driving violations and intoxication clues described in the affidavit
were observed on that same date. Id. at 571. The Jordan court also held,
“Given the symptoms of intoxication described in the affidavit, . . . the magistrate
had a substantial basis to determine that evidence of intoxication would probably
be found in [Jordan’s] blood within four hours of the stop.” Id. at 572.
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D. Analysis
This case is governed by Jordan. While Appellant contends that the
magistrate needed to know specifically when the offense occurred to determine
the probability that alcohol would have been found in Appellant’s blood, enough
evidence was present in the affidavit to allow the magistrate 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 Wilcock found Appellant at the
scene of the accident, slumped over in the driver’s seat. Appellant admitted to
both drinking and driving; and Appellant, her car, and the car she hit were all still
at the scene of the accident. Appellant also admitted to then having an
intoxication level of 3 on a scale of 1 to 10. Considering the facts provided in the
affidavit, the magistrate could properly infer 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 affidavit suggest the offense occurred just
before 2:54 a.m. The time lapse of less 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 Appellant’s blood, especially 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.
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III. Conclusion
Having overruled Appellant’s sole issue, we affirm 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
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