Description: At trial, Dallas Police Officer Alexander Shirley testified that on April 23, 2016, he was on
patrol at 5 a.m. On a public street, he came into contact with someone he later learned was
appellant. The officer testified that appellant was driving an ATV, or four-wheeler, on a sidewalk.
The ATV was designed for one person, but appellant had a passenger with him. In addition,
appellant was not wearing a helmet or other safety gear. The officer performed a traffic stop.
Appellant fumbled around a bit to get his I.D. out. Officer Shirley noticed a strong odor of alcohol
on appellant’s breath. He also noticed that appellant’s eyes were glassy and he was unsteady, even
when sitting on the ATV. The officer performed three standard field sobriety tests, the H.G.N.,
the walk-and-turn test, and the one-leg stand. Appellant did not pass any of these tests. Officer
Shirley arrested appellant and took him to jail, where he was placed in the intoxilyzer room.
Appellant declined to consent to a blood or breath sample. The officer then obtained a search
warrant for a sample of appellant’s blood and took appellant to a hospital to have his blood drawn.
The State presented evidence that the results of appellant’s blood test indicated his blood alcohol
level was .144 grams of ethanol per 100 milliliters of blood, which was above the legal limit.
In his first issue, appellant contends the evidence is insufficient to prove he committed
DWI. A person commits the offense of DWI if he is intoxicated while operating a motor vehicle
in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2017). Appellant’s sufficiency
challenge is limited to the issue of whether he operated the ATV. The penal code does not define
“operating” for purposes of the DWI statute. Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim.
App. 2012). The court of criminal appeals has stated that a person operates a vehicle when the
totality of the circumstances demonstrate that he took action to affect the functioning of his vehicle
in a manner that would enable the vehicle’s use. Id.
When reviewing the sufficiency of the evidence, we consider all of the evidence in the light
most favorable to the verdict to determine whether, based on that evidence and the reasonable
inferences therefrom, a factfinder was rationally justified in finding guilt beyond a reasonable
doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Jackson v. Virginia,
443 U.S. 307, 318–19 (1979). The factfinder is the sole judge of the credibility of the witnesses
and the weight to be given their testimony. Temple, 390 S.W.3d at 360.
Appellant maintains the evidence regarding whether police saw him driving the ATV is
ambiguous. We disagree. When asked the reason he came into contact with appellant, Officer
Shirley testified that appellant was driving an ATV on a sidewalk. On cross-examination, defense
counsel asked the officer directly, “The ATV in this particular case, you say you saw him driving
it?” Officer Shirley responded, “Yes.” The jury was rationally justified in finding beyond a
reasonable doubt that appellant committed DWI. We overrule appellant’s first issue.
In his second issue, appellant contends the trial court erred in failing to suppress the results
of his blood test because Officer Shirley’s affidavit in support of the search warrant contained false
statements. His argument is that his behavior as captured on video at the jail is inconsistent with
Officer Shirley’s description of his behavior in the affidavit.
Prior to voir dire, appellant made an oral motion to suppress the blood evidence and asked
that it be carried with the trial. The judge asked for a copy of the probable cause affidavit and
indicated that if appellant was seeking a Franks hearing it was “probably a little untimely” but he
would entertain it. The next day, after both sides closed, the trial court took up the motion to
suppress.1 Appellant asked the judge to suppress the blood evidence because appellant’s behavior
on video taken in the intoxilyzer room did not match Officer Shirley’s description of his behavior
in his affidavit. The only behavior described in the affidavit that appellant specifically mentioned
to the trial court was “talkative.” The affidavit also indicated appellant’s speech was “thick
tongued,” “slurred,” “slow,” and “mumbled” and that he was cooperative. Earlier that day, outside
the presence of the jury, the judge watched the video in question. The trial court denied the motion
to suppress. The judge indicated that even if he eliminated slow, mumbled, and talkative from the
affidavit, other information in the affidavit provided probable cause that appellant operated a motor
vehicle in a public place while intoxicated.
1 The charge instructed the jury that “intoxicated” meant either that the defendant did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body or the defendant had an alcohol concentration of at least .08. The judge stated that if he decided to suppress the blood evidence, he would take the instruction about .08 out of the charge.
A search warrant may be obtained from a magistrate only after submission of an affidavit
setting forth substantial facts establishing probable cause. State v. Jordan, 342 S.W.3d 565, 568
(Tex. Crim. App. 2011). Probable cause exists if, under the totality of the circumstances set forth
in the affidavit before the magistrate, there is a fair probability that evidence of a crime will be
found in a particular place at the time the warrant is issued. Id. at 568–69. Under Franks v.
Delaware, a defendant who makes a substantial preliminary showing that a false statement was
made in a warrant affidavit knowingly and intentionally, or with reckless disregard for the truth,
may be entitled to a hearing upon request. Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App.
2007); see Franks v. Delaware, 438 U.S. 154 (1978). An affidavit supporting a search warrant
begins with a presumption of validity. Cates v. State, 120 S.W.3d 352, 355 (Tex. Crim. App.
2003). To be granted a Franks hearing a defendant must: (1) allege 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. We review a trial court’s ruling on a Franks suppression issue under a mixed
standard of review that gives almost total deference to the trial court’s ruling on questions of fact
that depend upon evaluations of credibility and demeanor but reviews de novo the application of
the law. Jones v. State, 338 S.W.3d 725, 739 (Tex. App.—Houston [1st Dist.] 2011), aff’d, 364
S.W.3d 854 (Tex. Crim. App. 2012).
Any inconsistencies between appellant’s behavior at the jail and as described in the
affidavit do not establish that appellant’s behavior at the time of the traffic stop was inconsistent
with the description in the affidavit. Nevertheless, we will address appellant’s complaint.
Appellant contends the video shows he was uncooperative, while the affidavit indicated he was
cooperative. He also contends he was mute and that his speech was not slurred, slow, or mumbled.
But even if we assume appellant made a sufficient offer of proof to support his allegation that
Officer Shirley’s affidavit contained deliberate falsehoods or a reckless disregard for the truth in
these respects, he cannot show that, absent the allegedly false information, the remaining content
in the affidavit is insufficient to support issuance of the search warrant. The affidavit states that
Officer Shirley observed appellant operating a “4 wheel all terrain vehicle” on the sidewalk. The
officer noticed a strong odor of alcohol on appellant. Appellant’s eyes were bloodshot and glassy.
His balance was unsteady and swaying. The affidavit contained the results of the field sobriety
tests, which were noted to be reliable indicators of intoxication. Further, Officer Shirley noted that
when asked to perform the sobriety tests, appellant said, “I’m intoxicated, well not intoxicated,
intoxicated.” Also, appellant refused to provide a breath or blood sample. These statements in the
affidavit alone were sufficient to show probable cause that appellant committed DWI. See, e.g.,
Luckenbach v. State, 523 S.W.3d 849, 856 (Tex. App.—Houston [14th Dist.] 2017, no pet.). The
trial court did not err in denying appellant’s motion to suppress. We overrule appellant’s second