In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-19-00387-CR ___________________________
DUSTIN MICHAEL VARDEMAN, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Court at Law No. 1 Parker County, Texas Trial Court No. CCL1-18-0138
Before Sudderth, C.J.; Kerr and Walker, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION
I. Background Facts
Appellant Dustin Michael Vardeman was arrested for driving while intoxicated
after state trooper Daniel Walker stopped him for speeding. Before pleading guilty,
Vardeman filed four motions to suppress. Vardeman’s first two motions alleged that
Trooper Walker did not have reasonable suspicion to stop him, probable cause to
arrest him for DWI, or probable cause to support a blood search warrant. His third
motion challenged the State’s authority to use the results of the blood test at trial.1
Vardeman’s fourth motion alleged that Trooper Walker committed a Franks
violation—namely that Trooper Walker omitted material information in his search
warrant affidavit.
The trial court held two hearings and denied Vardeman’s motions and thereafter
issued findings of fact and conclusions of law. In pertinent part, the trial court found
that Trooper Walker provided the following credible testimony:
1. That Trooper Walker has been employed as a state trooper since 2010 and has attended additional training in DWI investigations;
2. That while patrolling traffic on I-30, Trooper Walker observed a vehicle that appeared to be speeding above the posted speed limit;
3. That before he stopped the vehicle, Trooper Walker used his laser to verify his observation that the vehicle was speeding;
Vardeman does not challenge the trial court’s denial of his third motion to 1
suppress.
2 4. That Trooper Walker’s laser indicated that the vehicle was traveling 84 mph in a 70-mph zone;
5. That Trooper Walker made contact with the driver of the vehicle, Vardeman, and he noticed that the driver was wearing a bracelet that Trooper Walker recognized as worn by a bar patron;
6. That the driver told Trooper Walker that he was coming from a bar;
7. That Trooper Walker noticed a moderate smell of alcohol coming from Vardeman’s vehicle;
8. That Vardeman refused to participate in the field sobriety tests;
9. That Trooper Walker’s in-car camera recorded his entire encounter with Vardeman; and
10. That Trooper Walker transported Vardeman to the hospital to obtain a warrant to procure a sample of his blood.
The trial court also found that Trooper Walker’s affidavit contained sufficient
probable cause to obtain the warrant—namely the fact that Vardeman was speeding,
had bloodshot and watery eyes, smelled like alcohol, and admitted to drinking alcohol
shortly before Trooper Walker stopped his car.2
Vardeman subsequently pleaded guilty to DWI and was ordered to pay a $750
fine and sentenced to serve three days in jail. This appeal followed.
On appeal, Vardeman argues that the facts were not sufficient to 1) give
Trooper Walker sufficient reasonable suspicion to seize him for speeding, 2) prolong
2 Vardeman has not challenged any of the trial court’s findings of facts and having found no flaw with the trial court’s findings of historical facts we rely on them to review the issues Vardeman raises on appeal.
3 Trooper Walker’s detention of him to conduct a DWI investigation, 3) give Trooper
Walker probable cause to arrest him for DWI, and 4) support a warrant to take his
blood. Vardeman also argues that Trooper Walker knowingly and intentionally, or
with reckless disregard for the truth, made material false statements in the form of
omissions, in his search warrant affidavit.
II. Standard of Review
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to
a trial court’s rulings on questions of historical fact and application-of-law-to-fact
questions that turn on evaluating credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor.
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.
2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
Additionally, when reviewing the trial court’s ruling on a suppression motion,
we must view the evidence in the light most favorable to the ruling. State v. Wiede, 214
S.W.3d 17, 24 (Tex. Crim. App. 2017); State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim.
App. 2006). When the trial court makes explicit fact findings, we determine whether
the evidence, when viewed in the light most favorable to the trial court’s ruling,
supports those findings. Kelly, 204 S.W.3d at 818–19. We then review the trial court’s
4 legal ruling de novo unless its explicit fact findings that are supported by the record
are also dispositive of the legal ruling. Id. at 818.
III. Reasonable Suspicion to Stop Vardeman
In his first issue, Vardeman claims that the trial court erred by failing to
suppress evidence obtained from an invalid traffic stop. Specifically, Vardeman
argues that Trooper Walker’s stop was illegal because the trooper improperly relied on
his light detection and ranging device (LIDAR) as the basis for the stop—and nothing
else. Because Trooper Walker observed Vardeman speeding and the LIDAR was not
the sole basis for the stop, we disagree.
A. Applicable Law
A detention, as opposed to an arrest, may be justified on less than probable
cause if a person is reasonably suspected of criminal activity based on specific,
articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche v.
State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An officer conducts a lawful
temporary detention when he or she has reasonable suspicion to believe that an
individual is violating the law. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App.
2010); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable
suspicion exists when, based on the totality of the circumstances, the officer has
specific, articulable facts that when combined with rational inferences from those
facts, would lead him to reasonably conclude that a particular person is or has been
engaged in criminal activity. Ford, 158 S.W.3d at 492. This is an objective standard
5 that disregards any subjective intent of the officer making the stop and looks solely to
whether an objective basis for the stop exists. Id. An officer’s belief that a driver
committed a traffic offense provides sufficient reasonable suspicion to detain the
driver. Tex. Dep’t of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 879–80 (Tex. App.—Fort
Worth 2009, no pet.) (en banc op. on reh’g) (holding that an officer’s stop of a car
was justified because the officer reasonably suspected the offense of speeding).
B. Trooper Walker’s detention of Vardeman was based on reasonable suspicion.
Vardeman points to Hall v. State, 297 S.W.3d 294 (Tex. Crim. App. 2009) for
the proposition that a LIDAR device cannot serve as the sole basis of a valid stop.
Vardeman’s reliance on Hall, however, is misplaced. In reaching its decision in Hall,
the Court of Criminal Appeals emphasized that the law enforcement officer in the
case “relied solely on LIDAR technology” in making his determination that the
defendant was speeding. Id. at 298. The Court noted that there was no evidence that
the officer used the LIDAR unit to confirm his otherwise independent personal
observation that the defendant was speeding. Id. This case is inapposite. Here,
Trooper Walker testified that he believed Vardeman was speeding based on his
personal observation. In fact, Trooper Walker stated that it was only after he saw
Vardeman speeding that he confirmed his belief using the LIDAR. Contrary to
Vardeman’s claim, Trooper Walker did not stop him for speeding based solely on his
use of the LIDAR device.
6 By itself, Trooper Walker’s observation of Vardeman’s speeding was sufficient
to justify the traffic stop. See Gonzalez v. State, No 09-14-0322-CR, 2015 WL 4760094
at *3 (Tex. App.—Beaumont August 12, 2015, no pet.) (not designated for
publication); Icke v. State, 36 S.W.3d 913, 915–16 (Tex. App.—Houston [1st Dist.]
2001, pet. ref’d); see also Dillard v. State, 550 S.W.2d 45, 53 (Tex. Crim. App. 1977) (op.
on reh’g) (holding that a peace officer who observes a speeding vehicle may stop the
car and approach the driver). We hold that the trial court did not err by denying
Vardeman’s motion to suppress evidence due to the traffic stop. We overrule
Vardeman’s first issue.
IV. Trooper Walker’s Continued Detention of Vardeman
In his second issue, Vardeman contends that the trial court erred by denying
his motion to suppress evidence obtained from the detention because Trooper Walker
prolonged the detention without sufficient reasonable suspicion. Specifically,
Vardeman argues that Trooper Walker had no reasonable suspicion to believe that he
had driven while intoxicated and thus the prolonged stop was not justified. We
disagree.
The presence of reasonable suspicion is not carte blanche for an officer to
prolong a detention and investigation. Matthews v. State, 431 S.W.3d 596, 603 (Tex.
Crim. App. 2014). An investigative detention must be temporary, and the questioning
must last no longer than is necessary to effectuate the purpose of the stop. Florida v.
7 Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983); Balentine v. State, 71 S.W.3d 763,
770–71 (Tex. Crim. App. 2002); Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App.
1997). Once an officer concludes the investigation of the conduct that initiated the
stop, continued detention of a person is permitted for the purpose of issuing a
citation. Kothe v. State, 152 S.W.3d 54, 65 n.43 (Tex. Crim. App. 2004) (citing United
States v. Wellman, 185 F.3d 651, 656 (6th Cir. 1999)); see Coleman v. State, 188 S.W.3d
708, 719 (Tex. App.—Tyler 2005, pet. ref’d) (holding that purpose of stop was
complete upon the issuance of the citation). But once the reason for the stop has
been satisfied, the stop may not be used as a “fishing expedition for unrelated criminal
activity.” Davis, 947 S.W.2d at 243 (quoting Ohio v. Robinette, 519 U.S. 33, 41, 117 S.
Ct. 417, 422 (1996) (Ginsburg, J., concurring)).
If an officer develops reasonable suspicion during a valid traffic stop and
detention that the detainee is engaged in criminal activity, however, prolonged or
continued detention is justified. See Davis, 947 S.W.2d at 244; Haas v. State, 172
S.W.3d 42, 52 (Tex. App.—Waco 2005, pet. ref’d); see also United States v. Brigham, 382
F.3d 500, 510–11 (5th Cir. 2004); McQuarters v. State, 58 S.W.3d 250, 256 (Tex. App.—
Fort Worth 2001, pet. ref’d). Additional facts and information discovered by an
officer during a lawful detention may form the basis for a reasonable suspicion that
another offense has been or is being committed. Haas, 172 S.W.3d at 52.
8 B. Trooper Walker’s continued detention of Vardeman was justified.
During Trooper Walker’s investigation of the speeding offense, he observed
sufficient facts to reasonably suspect that Vardeman had been driving while
intoxicated. Trooper Walker testified that when he approached Vardeman’s car, he
noticed the smell of an alcoholic beverage. The smell of alcohol can constitute, or
contribute to, reasonable suspicion of intoxication. See Sanchez v. State, 582 S.W.2d
813, 814–15 (Tex. Crim. App. [Panel Op.] 1979); Shakespeare v. State, No. 03-00-00707-
CR, 2001 WL 421003 at *3 (Tex. App.—Austin Apr. 26, 2001, no pet.) (not
designated for publication); State v. Brabson, 899 S.W.2d 747, 749 (Tex. App.—Dallas
1995), aff’d, 976 S.W.2d 182 (Tex. Crim. App. 1998). And apart from the odor of
alcohol, other evidence in Trooper Walker’s knowledge at the time he detained
Vardeman might, too, have objectively and reasonably caused Trooper Walker to
suspect Vardeman of driving while intoxicated.
First, Trooper Walker stopped Vardeman for speeding. Speeding can
contribute to a reasonable suspicion that the driver is driving while intoxicated. See,
e.g., Arthur v. State, 216 S.W.3d 50, 55–56 (Tex. App.—Fort Worth 2007, no pet.); State
v. Cullen, 227 S.W.3d 278, 282 (Tex. App.—San Antonio 2007, pet. ref’d). Second,
Vardeman admitted that he had been drinking alcoholic beverages at a bar shortly
before he was stopped for speeding. These articulable facts gave Trooper Walker
sufficient reasonable suspicion to detain Vardeman in order to investigate him for the
offense of driving while intoxicated. See State v. O’Neal, No. 10-08-00042-CR, 2008
9 WL 3507773, at *4 (Tex. App.—Waco Aug. 13, 2008, pet. ref’d) (not designated for
publication) (holding that the odor of alcohol and speeding can contribute to
reasonable suspicion of driving while intoxicated).
Vardeman cites to our opinion in Byram v. State, 478 S.W.3d 905, 910–911 (Tex.
App.—Fort Worth 2015, pet. granted), rev’d on other grounds, 510 S.W.3d 918 (Tex.
Crim. App. 2017) for the proposition that the odor of alcohol alone does not justify
seizing a citizen for the purpose of conducting a driving while intoxicated
investigation. But Vardeman’s reliance on this case is misplaced. In Byram, the State
argued that a police officer had reasonable suspicion to detain a citizen to conduct a
driving while intoxicated investigation when the officer smelled the “odor of an
alcoholic beverage” in an area where there were numerous people “partying” in the
officer’s direct vicinity. Id. at 911. Because there were no articulable facts which
could reasonably raise a suspicion that Byram was engaged in an alcohol-based
offense, we held that the officer’s stop of Byram violated his Fourth Amendment
rights. Id. Our rejection of the State’s argument centered on the fact that Byram was
lawfully socializing and drinking alcohol without engaging in disruptive or illegal
activities with a large group of people when the officer seized him. Id. We also noted
that at the time the officer began his investigation of Byram for driving while
intoxicated, the officer was not in the process of responding to or investigating Byram
for committing a criminal offense such as a traffic violation. Id
10 In contrast, this case involves a continued detention by an officer after
Vardeman’s vehicle had been lawfully stopped for a traffic violation where Trooper
Walker developed reasonable suspicion upon encountering Vardeman face-to-face. The
evidence of intoxication that Trooper Walker observed and identified during his
testimony at the suppression hearing—the smell of an alcoholic beverage coming
from Vardeman, his observation of Vardeman speeding, and Vardeman’s admission
to Trooper Walker that he had been drinking alcoholic beverages shortly before he
stopped him—was sufficient to provide him with reasonable suspicion that Vardeman
had been driving while intoxicated. See Mohmed v. State, 977 S.W.2d 624, 628 (Tex.
App.—Fort Worth 1998, pet. ref’d) (“An officer is entitled to rely on all of the
information obtained during the course of his contact with the citizen in developing
the articulable facts which would justify a continued investigatory detention.”) (citing
Ortiz v. State, 930 S.W.2d 849, 856 (Tex. App.—Tyler 1996, no pet.)); see also Newman v.
State, No. 01-00-00106-CR, 2001 WL 279182, at *3 (Tex. App.—Houston [1st Dist.]
Mar. 22, 2001, no pet.) (not designated for publication) (holding trial court could have
found reasonable suspicion based on the appellant’s nervousness and strong odor of
alcohol, which was inconsistent with the appellant’s explanation). Considering the
totality of the circumstances objectively, we hold that Vardeman was not detained
longer than reasonable suspicion justified. The trial court did not err by denying
Vardeman’s motion to suppress evidence based on his claim that Trooper Walker did
11 not have reasonable suspicion to prolong his detention. See Davis, 947 S.W.2d at 244;
Haas, 172 S.W.3d at 52. We overrule Vardeman’s second issue.
V. Probable Cause to Arrest Vardeman for DWI
Next, Vardeman claims that the trial court erred by denying his motion to
suppress evidence obtained as a result of his arrest because Trooper Walker did not
have probable cause to arrest him for DWI. We disagree.
“Probable cause” for a warrantless arrest exists if, at the moment the arrest is
made, the facts and circumstances within the arresting officer’s knowledge and of
which he has reasonably trustworthy information are sufficient to warrant a prudent
man to believe that the person arrested had committed or was committing an offense.
Amador, 275 S.W.3d at 875. The test for probable cause is an objective one, unrelated
to the subjective beliefs of the arresting officer and it requires a consideration of the
totality of the circumstances facing the arresting officer. Maryland v. Pringle, 540 U.S.
366, 371, 124 S. Ct. 795 (2003).
B. Trooper Walker had sufficient probable cause to arrest Vardeman.
Vardeman claims that Trooper Walker arrested him for the sole reason that he
refused to perform the field sobriety tests. Trooper Walker’s testimony at the
suppression hearing and the search warrant affidavit he filled out to obtain
Vardeman’s blood belie this claim. Trooper Walker testified that the facts known to
him at the time of the arrest were the following: 1) Vardeman was speeding at night
12 on a highway; 2) Vardeman was driving away from a bar where he consumed alcohol;
3) he smelled the odor of an alcoholic beverage as he spoke with Vardeman; and 4)
Vardeman refused to perform the standard field sobriety tests.
Trooper Walker explained that after he arrested Vardeman, he filled out an
affidavit to obtain a search warrant to collect Vardeman’s blood. In the affidavit,
Trooper Walker listed the facts that led him to believe Vardeman had committed the
offense of DWI, specifically that Vardeman:.
• was speeding after leaving a bar;
• admitted to drinking alcohol;
• emitted an odor of alcohol when speaking;
• refused to perform the field sobriety tests; and
• had bloodshot, watery eyes.3
At the time Trooper Walker arrested Vardeman, the facts and circumstances
within Trooper Walker’s knowledge and of which Trooper Walker had reasonably
trustworthy information sufficed to warrant a prudent person to believe that
Vardeman had committed the offense of DWI, for which a person properly may be
arrested. See, e.g., Maxwell v. State, 253 S.W.3d 309, 314 (Tex. App.—Fort Worth 2008,
pet. ref’d), following State v. Garrett, 22 S.W.3d 650, 655 (Tex. App.—Austin 2000)
Trooper Walker testified that he was unsure if he noticed Vardeman’s 3
bloodshot, watery eyes before or after he arrested him for DWI.
13 (upholding police officer’s reliance on suspect’s refusal to participate in field sobriety
tests in determining whether police officer had probable cause to arrest suspect);
Learning v. State, 227 S.W.3d 245, 249 (Tex. App.—San Antonio 2007, no pet.)
(holding officer had probable cause to arrest defendant for driving while intoxicated
where officer observed defendant swerve into adjacent lane, smelled alcohol on
defendant’s breath, and defendant admitted he had been drinking) (citing Dyar v. State,
125 S.W.3d 460, 464 (Tex. Crim. App. 2003) (finding probable cause to arrest where
driver admitted drinking alcohol and officer smelled alcohol and observed slurred
speech, unintelligible answers, and red glassy eyes); cf. Bartlett v. State, 270 S.W.3d 147,
153 (Tex. Crim. App. 2008) (“Evidence of the appellant’s refusal to submit to a breath
test is relevant . . . [because it] tends to show a consciousness of guilt on his part.”);
Russell v. State, 290 S.W.3d 387, 397 (Tex. App.—Beaumont 2009, no pet.) (“In
addition, the jury in this case could have inferred from Russell’s refusal to take a
breath test that the officer believed that Russell was intoxicated.”).
Vardeman further argues that Trooper Walker lacked probable cause to arrest
him because the trooper did not believe that Vardeman had lost the normal use of his
physical or mental faculties. To the extent that Trooper Walker was expressing his
subjective belief of Vardeman’s mental and physical condition, such a belief is
irrelevant because an arresting officer’s state of mind (including an officer’s subjective
beliefs and subjective reasons for an arrest) holds no relevance in a court’s probable-
cause determination. See Devenpeck v. Alford, 543 U.S. 146, 153, 125 S. Ct. 588, 593
14 (2004); Garcia v. State, 827 S.W.2d 937, 942–43 (Tex. Crim. App. 1992); see also Horton
v. California, 496 U.S. 128, 138, 110 S. Ct. 2301, 2311 (1990) (“Evenhanded law
enforcement is best achieved by the application of objective standards of conduct,
rather than standards that depend upon the subjective state of mind of the officer.”).
However, assuming Trooper Walker’s testimony amounted to an objective
observation of Vardeman’s condition, it should be noted that the penal code’s
definition of intoxication provides two methods of proof: either through evidence of
impairment or through evidence of blood alcohol content of .08 or more. Navarro v.
State, 469 S.W.3d 687, 694 (Tex. App.—Houston [14th Dist.] 2015, pet ref’d); see
Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). Trooper Walker need
not have observed a loss of physical or mental faculties by Vardeman to have
sufficient probable cause to arrest him for DWI; he only needed to have knowledge of
facts and circumstances that would warrant a prudent police officer in believing that
Vardeman’s blood alcohol content was .08 or more. Amador, 275 S.W.3d at 875
(citing Beck, 379 U.S. at 91). And here, Trooper Walker had sufficient facts to support
his conclusion that Vardeman’s blood alcohol content was .08 or higher.
Trooper Walker knew that Vardeman was speeding on the highway after
leaving a bar where he had been drinking alcoholic beverages, and Trooper Walker
could smell the odor of an alcoholic beverage when he spoke to Vardeman through
his passenger side window. Additionally, Vardeman told Trooper Walker that he
would not perform the field sobriety tests. See Bartlett, 270 S.W.3d at 153 (reciting that
15 an officer can consider a person’s refusal to participate in the field sobriety tests as
evidence that the person is intoxicated). The record contains abundant evidence from
which the trial court could have reasonably determined that a reasonable police officer
could have concluded that Vardeman’s blood alcohol content was .08 or more and
that he was intoxicated. Amador, 275 S.W.3d at 875.
Based on the evidence at the suppression hearing and reasonable inferences
therefrom, discussed above, the trial court could have reasonably concluded that, at
the time and place in question, Trooper Walker had facts and circumstances within his
knowledge sufficient to warrant a prudent person in believing that Vardeman had
committed the offense of driving while intoxicated. In other words, the record
reasonably supports the trial court’s conclusion that the State carried its burden of
proving that Trooper Walker’s warrantless arrest of Vardeman was properly
supported by probable cause. Thus, we hold that the trial court did not err when it
denied Vardeman’s motion to suppress evidence obtained from Trooper Walker’s
arrest of Vardeman. We overrule Vardeman’s third issue.
VI. The Blood Search Warrant Affidavit
In his fourth issue, Vardeman argues that the trial court erred by denying his
motion to suppress evidence obtained from the blood search warrant because
Trooper Walker’s affidavit failed to contain sufficient probable cause to support the
search. We disagree.
16 A. Appliable law
A search warrant for the extraction of blood from a person who the police
believe to have committed an intoxication offense must be based on probable cause
that evidence of that offense will be found through the execution of a blood-draw
search warrant. Hyland v. State, 574 S.W.3d 904, 910 (Tex. Crim. App. 2019).
Probable cause “exists when reasonably trustworthy facts and circumstances within
the knowledge of the officer on the scene would lead a man of reasonable prudence
to believe that the instrumentality of a crime or evidence pertaining to a crime will be
found.” Washington v. State, 660 S.W.2d 533, 535 (Tex. Crim. App. 1983). In
determining whether probable cause exists to support the issuance of a search
warrant, the magistrate to whom the probable cause affidavit is presented is confined
to considering the four corners of the search warrant affidavit, as well as to logical
inferences the magistrate might draw based on the facts contained in the affidavit. See
State v. Elrod, 538 S.W.3d 551, 554 (Tex. Crim. App. 2017) (“[A]lthough the
magistrate’s determination of probable cause must be based on the facts contained
within the four corners of the affidavit, the magistrate may use logic and common
sense to make inferences based on those facts.”). The determination of whether
probable cause exists is a “totality of the circumstances” inquiry, based on the
magistrate’s reasonable reading of the affidavit, but the magistrate may not act as a
mere “rubber stamp.” State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012).
17 Generally, a reviewing court applies a presumption of validity regarding a
judge’s determination that a search warrant affidavit supports a finding of probable
cause. Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2691 (1978). As a result,
when reviewing a judge’s probable cause determination, a reviewing court—which in
this context can be a trial judge or an appellate court—must ordinarily “view the
magistrate’s decision to issue the warrant with great deference.” Jones v. State, 364
S.W.3d 854, 857 (Tex. Crim. App. 2012); see also Massachusetts v. Upton, 466 U.S. 727,
733, 104 S. Ct. 2085, 2091 (1984) (“A deferential standard of review is appropriate to
further the Fourth Amendment’s strong preference for searches conducted pursuant
to a warrant.”). A trial judge or an appellate court examining a judge’s probable cause
determination “must uphold the magistrate’s decision so long as the magistrate had a
substantial basis” for his finding. Duarte, 389 S.W.3d at 354; see also Illinois v. Gates, 462
U.S. 213, 239, 103 S. Ct. 2317 (1983) (holding the affidavit “must provide the
magistrate with a substantial basis for determining the existence of probable cause”
for issuance of a search warrant); State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim.
App. 2011) (“As long as the magistrate had a substantial basis for concluding that
probable cause existed, we will uphold the magistrate’s probable cause
determination.”).
18 B. The search warrant affidavit
The pre-printed search warrant affidavit form that Trooper Walker filled out
contains introductory and concluding statements and eight numbered paragraphs,
each of which contains brief statements, and some of which include blank lines for
the affiant to use to conform the affidavit to the specific facts of a given case. The
introductory statement contains a line on which the affiant, Trooper Walker, listed his
name and identified himself as a peace officer with the Texas Department of Public
Safety.
The first numbered paragraph contains lines on which an affiant may provide
identifying information about the suspect. In that paragraph, Trooper Walker
identified the suspect as Dustin Michael Vardeman, a Caucasian male, and provided
his date of birth. Paragraphs 2 and 3, which are entirely pre-printed and contain no
additions by Walker, state that the suspect is in the custody of the affiant who believes
that the suspect has possession of and is concealing human blood, which constitutes
evidence that he committed the offense described in Paragraph 4. The next
paragraph contains date and time blanks and the elements of the offense of driving
while intoxicated. Trooper Walker conformed the blank lines in this paragraph to
reflect that on September 23, 2017, Vardeman committed the offense of driving while
intoxicated. Paragraph 5 requires the affiant to state why he stopped the suspect’s
vehicle. Trooper Walker indicated that he stopped Vardeman’s vehicle because it was
speeding over 70 mph. Paragraph 6 contains a list of observations that might lead a
19 person to reach a conclusion about whether a suspect was intoxicated while driving.
The list includes options followed by boxes which an affiant can check indicating the
presence of that condition. In the boxes following the option titled “eyes,” Trooper
Walker checked “bloodshot” and “Watered.” Trooper Walker also checked the box
following “Breath/Odor of Alcoholic Beverage” labeled “Moderate.” In the line
following “Additional observations,” Trooper Walker wrote “Admitted to drinking,
coming from a bar.”
Paragraph 7 of the affidavit form states that the affiant asked the suspect to
submit to the field sobriety tests and provides for the affiant to indicate whether the
suspect refused or agreed. Trooper Walker checked the box “refused.”
Paragraph 8 of the affidavit is preprinted and contains no additions by Trooper
Walker. That paragraph states
Wherefore, Affiant asks for a search warrant that will authorize Affiant or their agent to search the person of the suspected party for the property described above and seize the same as evidence that the offense described was committed and that suspected party committed said offense.
Trooper Walker then signed and dated the affidavit and submitted it to a
district judge who issued a search warrant to extract Vardeman’s blood.
C. Trooper Walker’s affidavit supplied sufficient probable cause to support the search warrant.
Trooper Walker swore in his affidavit that after pulling Vardeman over for
speeding, he smelled the odor of an alcoholic beverage coming from Vardeman and
20 that Vardeman’s eyes appeared to be bloodshot and watery. When Trooper Walker
asked Vardeman whether he had been drinking alcoholic beverages, Vardeman
admitted that he had and stated that he had driven from a bar. Vardeman refused to
perform the field sobriety tests.
After learning the facts contained in the search warrant affidavit, Trooper
Walker requested a search warrant for Vardeman’s blood specimen because he
believed it would produce evidence that Vardeman committed the offense of driving
while intoxicated. A district judge reviewed the evidence included in the sworn
affidavit and determined that probable cause existed for the issuance of a search
warrant for Vardeman’s blood specimen.
The facts found in the four corners of Trooper Walker’s affidavit and the
reasonable inferences derived from them, taken as a whole, provided a substantial
basis by which the judge could have reasonably concluded that a blood-alcohol test
had a fair probability or a substantial chance to uncover evidence that Vardeman had
been driving while intoxicated. See State v. Jordan, 342 S.W.3d 565, 569–72 (Tex. Crim.
App. 2011); State v. Crawford, 463 S.W.3d 923, 928 (Tex. App.—Fort Worth 2015, pet.
ref’d) (op. on reh’g) (holding search warrant affidavit established probable cause
necessary for issuance of blood search warrant from defendant who was arrested for
DWI; affidavit reflected that defendant was stopped for speeding, officer smelled
alcohol on defendant’s breath, defendant’s eyes appeared to be bloodshot, and
defendant admitted that he had been drinking). Because the judge had a substantial
21 basis to support his probable-cause determination, the trial court (and this court on
appeal) was required to defer to that determination. We overrule Vardeman’s fourth
issue.
VII. Franks Violation
In his last issue, Vardeman claims the trial court erred by denying his motion to
suppress the blood test evidence because Trooper Walker knowingly and intentionally
or with reckless disregard for the truth included false statements in his probable cause
affidavit. Vardeman argues, however, that the probable cause affidavit omitted material
information that would have eliminated probable cause.
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,
438 U.S. 154, 98 S. Ct. 2674. 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
22 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 review 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).
Some intermediate appellate courts have held that Franks equally applies to
omissions, but the Texas Court of Criminal Appeals has not yet done so. See Massey v.
State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996); see also Renteria v. State, 206 S.W.3d
689, 703–04 (Tex. Crim. App. 2006) (assuming but not deciding Franks applies to
material omissions); but see Brooks v. State, No. 13-20-00085-CR, 2021 WL 2461062, at
*8–9 (Tex. App.—Corpus Christi–Edinburg June 17, 2021, no pet. h.) (mem. op., not
designated for publication) (holding Franks applies to material omissions in the
probable cause affidavit); Gonzales v. State, 481 S.W.3d 300, 311 (Tex. App.—San
Antonio 2015, no pet.) (holding the Franks applies to material omissions and that the
trial court should “determine whether, if the omitted material had been included in
the affidavit, the affidavit would still establish probable cause for the defendant’s
arrest, and if probable cause is not established, then the search warrant would be
voided and the fruits of the search excluded.”).
23 B. The complained-of omissions were not material.
Assuming Franks applies to material omissions, Vardeman would be required,
at minimum, to show that Trooper Walker withheld material information. See Renteria,
206 S.W.3d at 703–04; Brooks, 2021 WL 2461062 at *8–9; Gonzales, 481 S.W.3d at 311.
In his Franks motion and during the hearing on his motion, Vardeman pointed out
that the pre-printed blood search affidavit set out six categories of signs of
intoxication that Trooper Walker could have indicated he observed. The categories
are clothing, balance, walk, speech, eyes, and breath/odor of alcoholic beverage. As
Vardeman points out, the form allows the affiant to choose from a range of four
options in each category. This portion of Trooper Walker’s affidavit is set out below:
As reflected above, Trooper Walker checked the boxes indicating that
Vardeman’s eyes were bloodshot and watery and that he emitted a moderate odor of
an alcoholic beverage. Trooper Walker did not check any boxes in the speech,
balance, walk, and clothing categories. During the hearing on Vardeman’s first two
motions to suppress, Trooper Walker testified that Vardeman appeared normal in
each of the categories.
24 Vardeman argues that Trooper Walker omitted material information when he
failed to check the boxes in the affidavit that indicated his balance, speech, walk, and
clothing were normal. Vardeman argues that if Trooper Walker had checked
“normal” as to those categories, the district judge would not have found probable
cause to support the blood search warrant. We do not agree.
As we pointed out, the penal code’s definition of intoxication provides two
methods of proof: either through evidence of impairment or through evidence of
blood alcohol content of .08 or more. Navarro, 469 S.W.3d at 694. The judge who
reviewed the affidavit did not need to find probable cause that Vardeman was
impaired; he only needed to find probable cause that a blood draw would provide
evidence that Vardeman’s blood alcohol content was .08 or more. See Washington, 660
S.W.2d at 535; Navarro, 469 S.W.3d at 694. Vardeman’s bloodshot eyes and the
moderate odor of alcohol on his breath supplied sufficient probable cause to believe
that Vardeman’s blood alcohol content was .08 or more. But additionally, the
affidavit reflects that Trooper Walker observed Vardeman speeding on the highway
and that Vardeman told Trooper Walker that he was coming from a bar where he had
consumed alcoholic beverages. Finally, in his affidavit, Trooper Walker stated that
Vardeman refused to perform the field sobriety tests. The affidavit contains sufficient
probable cause for the judge to have believed that a blood draw would provide
evidence that Vardeman was intoxicated.
25 Applying the presumption of validity, we hold that even if the omitted
“normal” information was included in Trooper Walker’s probable cause affidavit, the
judge had a substantial basis for determining probable cause existed that Vardeman
was intoxicated—that his blood alcohol content was .08 or more. Therefore, the trial
court did not err by determining that Vardeman failed to show that the omissions in
this case were material. We overrule Vardeman’s fourth issue.
VIII. Conclusion
Having overruled Vardeman’s issues, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth Bonnie Sudderth Chief Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: October 14, 2021