In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-16-00200-CR ____________________
JAMES ALLAN BURG II, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the County Court at Law No. 1 Montgomery County, Texas Trial Cause No. 15-307592 ________________________________________________________________________
MEMORANDUM OPINION
In seven issues, James Allan Burg II appeals his class A misdemeanor driving
while intoxicated conviction. See Tex. Penal Code Ann. § 49.04(a), (d) (West Supp.
2017). Burg’s first four issues contend that the trial court erred by denying four
challenges for cause he lodged against venire members because of alleged material
bias or prejudice. In his fifth issue, Burg argues that the trial court erred because it
failed to suppress a blood warrant obtained with an affidavit that Burg contends
contained material misstatements and omissions made deliberately or with reckless
disregard for the truth. Sixth, Burg asserts the trial court should have allowed his
request for an article 38.23 instruction in the jury charge because of the issue
surrounding the blood warrant. See Tex. Code Crim. Proc. Ann. art. 38.23 (West
2005). And last, Burg complains about the trial court’s suspension of his driver’s
license as part of the terms of his community supervision. We overrule all of Burg’s
issues and affirm the trial court’s judgment.
Background
Texas State Trooper Matthew Cline stopped Burg late one night when Burg
was driving on the interstate with his high beam lights against oncoming traffic.
Patrolling with Trooper Cline—who was nearing the completion of his field
training—was Texas State Trooper Richard Hazenberg, Trooper Cline’s field
training supervisor. Trooper Cline’s patrol vehicle was equipped with a dash camera
that recorded the stop, which was admitted into evidence. After both Trooper
Hazenberg and Trooper Cline detected alcohol on Burg, Trooper Cline requested
Burg exit his vehicle and conducted field sobriety tests on Burg. Based on the totality
of his observations, including Burg’s performance during the tests, Trooper Cline
arrested Burg for driving while intoxicated and transported him to jail.
Burg refused to provide a blood sample, so Trooper Cline submitted an
affidavit to a judge and obtained a warrant for Burg’s blood. The blood alcohol test
revealed Burg had an alcohol concentration of 0.212 grams of alcohol per one
hundred milliliters of blood. The jury convicted Burg of driving while intoxicated, a
class A misdemeanor in this case because his blood alcohol concentration level
exceeded 0.15. See Tex. Penal Code Ann. § 49.04(d). Based on the suggestion of the
jury, the trial court assessed a one-year sentence in county jail, but probated and
suspended the sentence and placed Burg on community supervision for eighteen
months. Additionally, the trial court ordered that Burg’s driver’s license be
suspended for one year.
Burg appealed complaining of issues associated with voir dire, the affidavit
resulting in the warrant for Burg’s blood, an instruction in connection with the blood
warrant, and the suspension of his driver’s license.
Venire Member Challenges
In Burg’s first four issues, he contends that the trial court improperly denied
his challenges for cause against venire members three, five, ten, and twenty-two.
Burg alleges these venire members were challengeable for cause under article 35.16
because they were either biased regarding a police officer’s credibility compared to
other witnesses, or they did not afford him the presumption of innocence with respect
to the results of a blood alcohol test. See Tex. Code Crim. Proc. Ann. art. 35.16(a)(9),
(c)(2) (West 2006).
Specifically, venire members three and twenty-two stated that if they were
given a number indicating that the defendant’s blood alcohol level exceeded .08, the
defendant was guilty. Moreover, when asked whether they would believe a police
officer’s testimony over a layperson solely based on the witness being a police
officer, venire members three, five, and ten stated, “Yes.” Venire member twenty-
two alluded that he would likely listen to a police officer over someone else.
Following the trial court’s attempt to clarify whether the venire members would
consider the evidence presented in the case and then judge the credibility of the
witnesses based on their testimony versus their position as a police officer, the
complained of venire members were then called to the bench individually to further
discuss their alleged biased and prejudices.
Venire member number three was called to the stand after the trial court
denied Burg’s request to strike him. When asked to clarify his answers, venire
member number three stated that “[a]nybody who’s testifying it’s a clean slate” and
that with regard to the blood test, “[i]f everything is presented in the courtroom and
it’s .08 and everything’s been presented legally, that’s the law.” Burg renewed his
request to strike venire member three, but the trial court denied his request.
Venire member number five was then called to the stand because the trial
court denied Burg’s request to strike her regarding her inclination to give more
weight to a police officer’s testimony. However, after speaking with counsel and the
trial court, venire member number five clarified that she would keep an open mind,
because “you have to look at everything” and judge the officer’s credibility after
hearing the evidence. The trial court continued to deny Burg’s request to strike
venire member number five as well as deny his request for an extra preemptory
strike.
Similarly, venire member number ten told the trial court he would listen to the
evidence of the case and determine the credibility of the officer based on the officer’s
testimony, not his position as a police officer. The trial court denied Burg’s renewed
request to strike venire member number ten, as well as his request for an extra
preemptory strike.
The court also denied Burg’s request to strike venire member number twenty-
two based on his assertion that police officers are better trained and thus, afforded
more credibility. When asked about whether he would listen to all of the evidence
and make a determination regarding the officer’s credibility based on that evidence,
venire member number twenty-two explained that context had a lot to do with his
answer, but that he would listen to everything. The trial court denied Burg’s renewed
request to strike.
Prior to seating the jury, Burg explained to the trial court that because his
requests for venire members three and twenty-two were denied and that he then used
two of his strikes to remove these venire members, questionable venire members
five and ten would be seated on the jury. Burg requested two additional preemptory
strikes to rid venire member numbers five and ten from the jury, but the trial court
denied Burg’s request.
To preserve error for a trial court’s erroneous denial of a challenge for cause,
Burg must show that he asserted a clear and specific challenge for cause, that he used
a peremptory challenge on the complained-of-venire member, that his peremptory
challenges were exhausted, that his request for additional strikes was denied, and
that an objectionable juror sat on the jury. See Davis v. State, 329 S.W.3d 798, 807
(Tex. Crim. App. 2010).
We review a trial court’s decision to deny a challenge for cause by looking at
the entire record to determine whether sufficient evidence supports the ruling. See
id. (citing Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002)). “The test
is whether a bias or prejudice would substantially impair the venire member’s ability
to carry out the juror’s oath and judicial instructions in accordance with the law.” Id.
(citing Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009)). In applying
this test, we must afford considerable deference to the trial court’s ruling because
the trial judge is in the best position to evaluate a panel member’s demeanor and
response. See id. A trial court’s ruling on a challenge for cause may be reversed only
for a clear abuse of discretion. Id. (citing Gardner, 306 S.W.3d at 296). “When a
venire member’s answers are vacillating, unclear, or contradictory, we accord
particular deference to the trial court’s decision.” Id.
A venire member is challengeable “if he cannot impartially judge the
credibility of witnesses[,]” but “this means only that jurors must be open-minded
and persuadable, with no extreme or absolute positions regarding the credibility of
any witness.” Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999). Because
“‘complete impartiality cannot be realized as long as human beings are called upon
to be jurors[,]’” venire members “are not challengeable for cause simply because
they would give certain classes of witnesses a slight edge in terms of credibility.” Id.
(quoting Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998) (addressing a
venire member who indicated that he would tend to believe a police officer more
than another witness)); see also Smith v. State, 907 S.W.2d 522, 531 (Tex. Crim.
App. 1995) (holding that a venire member who said he might give more credibility
to a Texas Ranger’s testimony was allowed to serve as a juror); Moore v. State, 54
S.W.3d 529, 537 (Tex. App.—Fort Worth 2001, pet. ref’d) (holding that a venire
member was not challengeable for cause simply because they stated that they would
trust an adult’s credibility more than that of a child).
“Before venire members may be excused for cause, the law must be explained
to them, and they must be asked whether they can follow [the] law, regardless of
their personal views.” Davis, 329 S.W.3d at 807. The party seeking to have the
venire member struck does not meet his burden of establishing that the challenge is
proper “until he has shown that the venire member understood the requirements of
the law and could not overcome his or her prejudice well enough to follow the law.”
Id.
Initially, we note that Burg did not use peremptory strikes on either venire
member five or ten, but used two on venire members three and twenty-two. Burg
identified venire members five and ten as the objectionable jurors that were seated
on the jury. The record is silent as to whether Burg exhausted all of his peremptory
strikes preventing him from striking venire members five and ten; but clearly, one
strike remained as it was used on venire member twenty-two. Thus, it is questionable
whether Burg successfully preserved his issues on appeal. See id.
Nevertheless, affording the trial court its considerable discretion, after each of
the objected to venire members subject of this appeal were called to the bench and
explained the law regarding the credibility of witnesses and evaluating results of a
blood alcohol test, venire members three, five, ten, and twenty-two each stated, as
detailed above, that he or she could apply the law as given regardless of any personal
views. See id.; see also Buntion v. State, 482 S.W.3d 58, 84 (Tex. Crim. App. 2016).
Thus, based on our review of the entire voir dire, we conclude that the trial court did
not clearly abuse its discretion by denying Burg’s challenge for cause to venire
members three, five, ten, or twenty-two. We therefore overrule Burg’s issues one
through four.
Suppression of Evidence
Burg argues in his fifth issue that the trial court erred in denying his motion
to suppress the blood warrant that was obtained with an affidavit completed by
Trooper Cline that Burg alleges contained deliberate or reckless material
misstatements and omissions.
“[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, if a
defendant establishes by a preponderance of the evidence that an affiant made false
statements knowingly and intentionally or with reckless disregard for the truth in a
probable cause affidavit and that the false statements were material to establish
probable cause, the false material must be excised from the affidavit. 438 U.S. 154,
155–56 (1978).
We review a trial court’s decision on a Franks suppression issue under the
same standard that we review a probable-cause deficiency, a mixed standard of
review. See 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). We give almost total
deference to a trial court’s rulings on questions of historical fact and application-of-
law-to-fact questions that turn on an evaluation of credibility and demeanor while
we review de novo the application of the law. See Johnson v. State, 68 S.W.3d 644,
652–53 (Tex. Crim. App. 2002) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997)); Jones, 338 S.W.3d at 739. However, in deciding a Franks
motion, the trial court may consider not only the probable-cause affidavit, but also
the evidence offered by the party moving to suppress, because this attack on the
sufficiency of the affidavit arises from claims that it contains false statements. See
Franks, 438 U.S. at 154–56; Cates v. State, 120 S.W.3d 352, 355–57 (Tex. Crim.
App. 2003).
“An affidavit supporting a search warrant begins with a presumption of
validity[.]” Cates, 120 S.W.3d at 355. While the assumption exists that the evidence
supporting a probable cause finding is truthful, the Fourth Amendment does not
mandate that every fact in a supporting affidavit be necessarily correct. See Franks,
438 U.S. at 164–65. “A misstatement in an affidavit that is merely the result of
simple negligence or inadvertence, as opposed to reckless disregard for the truth,
will not render invalid the warrant based on it.” Dancy v. State, 728 S.W.2d 772,
782–83 (Tex. Crim. App. 1987) (clarifying that a misstatement in an affidavit
resulting from mere negligence in checking or recording facts relevant to probable
cause determination “is beyond the pale of Franks”); see also Franks, 438 U.S. at
165.
In this case, almost immediately following opening statements, as well as
throughout Trooper Cline’s testimony, and during a separate Franks hearing outside
the presence of the jury, Burg attempted to argue that the blood warrant, and thus
the results from the blood alcohol test derived from obtaining Burg’s blood, should
be suppressed because Trooper Cline allegedly made intentional or deliberately false
statements and omissions in his affidavit to obtain the warrant. Trooper Cline
testified that after stopping Burg and approaching his vehicle, he noticed that Burg
seemed confused and was moving very slowly, which to him may indicate
intoxication. While acknowledging that he could not recall if he smelled alcohol on
Burg’s breath initially or after he requested Burg exit the vehicle, Trooper Cline
stated at trial that he smelled alcohol and characterized it as “strong.” Nonetheless,
during cross-examination, Trooper Cline said that his affidavit only indicated the
odor was “moderate,” and the video of the stop indicates that before Burg is asked
to exit his vehicle, Trooper Cline tells Trooper Hazenberg that he does not think he
smells alcohol. However, the video also shows that Troopers Cline and Hazenberg
discussed the matter despite being unable to understand the entire conversation.
Trooper Cline also explained that he conducted his DWI investigation that
included standardized field sobriety tests. Trooper Cline detected six out of six clues
while performing the HGN (horizontal gaze nystagmus). Burg also performed the
walk-and-turn test and the one-leg-stand test.
With respect to the walk-and-turn, Trooper Cline indicated in his case report
(not admitted into evidence) that Burg had two out of eight clues. But, in his affidavit
to obtain the blood warrant, he noted an additional third clue. Trooper Cline
explained that two clues are required to consider the subject to have failed the walk-
and-turn test.
Concerning the one-leg-stand test, Trooper Cline testified that his affidavit for
the blood warrant indicated that Burg had three clues on the one-leg-stand, but his
case report only indicated two. Furthermore, during cross-examination, Trooper
Cline was asked specifically to evaluate, while watching the video, one of the clues
he did not mark in his case report regarding whether Burg raised his arms during the
test. Trooper Cline maintained Burg impermissibly raised one of his hands, although
after reviewing the video, any movement is difficult to detect. Nevertheless, when
asked whether Trooper Cline added that Burg lifted his arm to constitute the third
clue for purposes of the warrant, Trooper Cline stated “[n]o, I did not.” Two clues
are required to indicate intoxication following the performance of the one-leg-stand
test. Based on all of Trooper Cline’s observations of Burg as well as Burg’s
performance on the field sobriety tests, Trooper Cline arrested Burg for suspected
driving while intoxicated.
Prior to Burg’s vehicle being towed, an inventory was conducted of it
following Burg’s arrest, and a receipt indicating the purchase of alcoholic beverages
was found. Trooper Cline stated in his affidavit the receipt was for beer purchased
three hours prior to Burg’s arrest; the video shows Trooper Cline showing the receipt
to Burg and asking him about it, to which Burg did not respond. While Trooper Cline
noted the receipt in his affidavit for the warrant, the actual receipt could not be
located for trial.
During the Franks hearing, Burg denied purchasing the alcohol earlier that
day. Rather, Burg contended that he did not purchase beer on the night of his arrest
and produced some of his banking records that do not indicate a purchase on that
night.
Moreover, the affidavit included a note that Burg had received various
merchandise from a beer manufacturer’s marketer at a local establishment, but did
not indicate when he obtained the merchandise. Burg argued that he received the
merchandise from his friends who had gotten it at noon that day. However, the video
has Burg stating that he received the merchandise that night, but then later saying
that he and his friends had been at the establishment at noon. Burg argues that
Trooper Cline’s failure to include that the merchandise was obtained at noon was a
material omission in the affidavit.
Regarding the inconsistencies between his affidavit and his case report,
Trooper Cline stated that the affidavit for the blood warrant is made immediately
after the suspect is arrested at the jail, while he writes his report several days after
the suspect’s arrest. Thus, while acknowledging he is human and makes mistakes,
Trooper Cline explained that the most accurate indication of what clues of
intoxication he saw are the ones indicated in the affidavit. Trooper Cline also denied
Burg’s allegation that he made any statement or omission concerning the affidavit
in an intentional or deliberate attempt to obtain the blood warrant. At the conclusion
of the Franks hearing, the trial court denied his motion without further explanation
and the blood alcohol evidence was allowed to be admitted into evidence.
While some inconsistences exist amongst Trooper Cline’s testimony
regarding his observations and his case report that is not in evidence, his affidavit
supporting the blood warrant, and the video of the stop, we must afford almost total
deference to the trial court in its rulings on questions of historical fact in the trial
court’s resolution of Burg’s complaints. See Johnson, 68 S.W.3d at 652–53. The trial
court rejected Burg’s assertion that Trooper Cline’s misstatements or alleged
omissions were deliberate or intentional. See Franks, 438 U.S. at 155–56; Dancy,
728 S.W.2d at 782–83. The trial court’s ruling is supported by the record. See Dancy,
728 S.W.2d at 782–83. In addition, the affidavit lists numerous other facts—
including the clues on the HGN, his eyes being glassy, him swaying, his mood
swings, the undisputed clues on the other field sobriety tests, and some odor of
alcohol— that support probable cause even absent the complained of statements. See
Jordan, 342 S.W.3d at 568–69. We overrule Burg’s fifth issue.
Jury Instruction
Burg asserts in his sixth issue the trial court erred by refusing to submit a jury
instruction pursuant to Texas Code of Criminal Procedure article 38.23. Burg’s
request for the instruction concerned the underlying facts surrounding Trooper
Cline’s obtaining the blood warrant and whether probable cause existed.
When reviewing jury-charge issues, we first determine whether an error
exists. See Phillips v. State, 463 S.W.3d 59, 64 (Tex. Crim. App. 2015). It would be
error to admit evidence obtained against a defendant that was illegally seized by
police in violation of a defendant’s constitutional rights. See Tex. Code Crim. Proc.
Ann. art. 38.23(a) (“No evidence obtained by an officer or other person in violation
of [the Texas or United States constitutions] shall be admitted in evidence against
the accused on the trial of any criminal case.”). When there is evidence admitted in
a trial that creates a question regarding whether
the fruits of a police-initiated search or arrest were illegally obtained, “the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this [a]rticle, then and in such event, the jury shall disregard any such evidence so obtained.”
Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012) (quoting Tex. Code
Crim. Proc. Ann. art. 38.23(a)).
“A defendant’s right to the submission of jury instructions under [a]rticle
38.23(a) is limited to disputed issues of fact that are material to his claim of a
constitutional or statutory violation that would render evidence inadmissible.”
Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007). To justify the
necessity of an article 38.23(a) instruction, there must be controverted evidence
demonstrating a “factual dispute about how the evidence was obtained.” Robinson,
377 S.W.3d at 719 (quoting Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App.
2004)). In other words, before the trial court is required to instruct the jury that it can
disregard evidence, the record must include evidence sufficient to create a genuine
issue of material fact as to whether the evidence was illegally obtained. See Madden,
242 S.W.3d at 513. “Where the issue raised by the evidence at trial does not involve
controverted historical facts, but only the proper application of the law to undisputed
facts, that issue is properly left to the determination of the trial court.” Robinson, 377
S.W.3d at 719. Moreover, “if other facts, not in dispute, are sufficient to support the
lawfulness of the challenged conduct, then the disputed fact issue in not submitted
to the jury because it is not material to the ultimate admissibility of the evidence.”
Madden, 242 S.W.3d at 510.
Burg argues that because Trooper Cline’s affidavit and testimony included
clues not indicated on his case report with respect to the walk-and-turn and one-leg-
stand tests and allegedly omitted other facts in the affidavit, a fact dispute existed
warranting the instruction about whether the blood was illegally obtained. However,
we rejected Burg’s complaint that sufficient probable cause was not established for
the issuance of the blood warrant in our preceding discussion. Specifically, even if
we excised every challenged statement in Trooper Cline’s affidavit, the warrant still
established probable cause because Burg displayed glassy eyes, smelled of alcohol,
exhibited six clues on the HGN test, two clues on the walk-and-turn test, and two
clues on the one-leg-stand test, along with other observed factors. Sufficient
undisputed facts existed establishing probable cause to decide the lawfulness of the
challenged conduct. See id. Trooper Cline’s affidavit provided probable cause for
the magistrate to issue the warrant for Burg’s blood.
We conclude the trial court was not required to charge the jury that it could
disregard evidence that it found had been illegally obtained by Trooper Cline
because there was no evidence showing that the evidence was illegally obtained. See
Robinson, 377 S.W.3d at 719; Madden, 242 S.W.3d at 513. Issue six is overruled.
Driver’s License Suspension
In Burg’s seventh and last issue, he argues the trial court erred by imposing a
one-year driver’s license suspension as a condition of his community supervision.
An award of community supervision is not a right, but is a contractual
privilege, and the conditions of community supervision agreed to by the defendant
are the terms of the contract entered into between him and the trial court. Speth v.
State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). If a defendant fails to object to
conditions of probation at trial, he affirmatively accepts them and is barred from
complaining about them for the first time on appeal. See Tex. R. App. P. 33.1(a);
Speth, 6 S.W.3d at 535. The only exceptions involve situations where the probationer
has effectively been denied the opportunity to object, such as a modification of the
conditions of community supervision without a hearing. See Rickels v. State, 108
S.W.3d 900, 902 (Tex. Crim. App. 2003).
Burg did not object at trial to the suspension of his driver’s license. He cannot
now complain about the alleged condition for the first time on appeal. See Speth, 6
S.W.3d at 535. We overrule Burg’s seventh issue.
Having overruled all of Burg’s issues on appeal, we affirm the trial court’s
judgment.
AFFIRMED.
_________________________ CHARLES KREGER Justice
Submitted on November 7, 2017 Opinion Delivered April 11, 2018 Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.