In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-17-00285-CR
MATTHEW DON HENSLEE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 18th District Court Johnson County, Texas1 Trial Court No. F50386, Honorable John Edward Neill, Presiding
January 3, 2019
MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.
Matthew Don Henslee, appellant, pleaded guilty to felony driving while
intoxicated.2 He was sentenced to ten years’ imprisonment, probated to ten years of
community supervision. In this appeal, appellant argues that the trial court should have
granted his motion to suppress evidence. We affirm.
1 Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to
this Court from the Tenth Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
2 See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2017). Background
A deputy constable for Johnson County, Texas, Precinct 2, responded to a 911
call reporting a dark-colored Ford truck “swerving all over the road.” The deputy constable
initiated a traffic stop after he observed a black Ford truck, driven by appellant, following
closely behind a work truck, then swerving across lane markers without signaling. The
time of the stop was around 8:05 p.m. When he approached the vehicle, he saw two
open beer bottles in the rear floor board, and when he made contact with appellant, he
smelled the odor of an alcoholic beverage coming from the truck. Appellant’s speech was
slightly slurred, and he struggled to locate his driver’s license. He said he had consumed
six or seven vodka waters.
Within two or three minutes, a deputy from the Johnson County Sheriff’s Office
arrived on the scene, and the two officers conferred. The second officer, who was more
experienced in DWI investigations, felt that he should continue to investigate. However,
because he was from a different law enforcement agency, he needed authorization from
his supervisor to take over.
Appellant exited the truck and leaned against the tailgate. The deputy constable
told appellant that he might be able to call for a ride. Appellant told the officers he had
twice been convicted of DWI and that they could retrieve his occupational license from
the console of his truck. A supervising officer from the sheriff’s department arrived on the
scene around 8:22 p.m. After the officers conferred, the deputy asked appellant to
perform the standard field sobriety tests, but appellant refused.
2 Appellant was arrested for suspicion of driving while intoxicated and violating his
occupational license. He was placed in the deputy’s vehicle for transport at 8:32 p.m. At
the jail, appellant refused to provide blood or breath for analysis. The deputy then
obtained a warrant for appellant’s blood. The warrant was issued by the Judge of the
Johnson County Court at Law No. 2.
Appellant was later charged with the felony offense of DWI. He filed a motion to
suppress, which was denied by the trial court. He subsequently entered a plea of guilty.
On appeal, appellant maintains that the trial court erred by denying his motion to suppress
evidence because (1) his continued detention after the initial traffic stop was unlawful,
and (2) the warrant for his blood was issued unlawfully because the evidence failed to
show that he refused a request for a specimen of his blood or breath.
Standard of Review
We review a trial court’s ruling on a motion to suppress for an abuse of discretion.
State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We view the record in the
light most favorable to the trial court’s determination, and will reverse the judgment only
if it is arbitrary, unreasonable, or “outside the zone of reasonable disagreement.” Id.
Because the trial court is the sole trier of fact, we give almost total deference to its
determination of historical facts. Id.
3 Analysis
Prolonged Detention
Appellant raises three arguments related to the denial of his motion to suppress.
In his first issue, he contends that the officers did not diligently pursue their investigation
after he was stopped. Appellant does not contest the initial traffic stop, but challenges
his continued detention after it.
Law enforcement officers are justified in stopping a vehicle when they have
reasonable suspicion to believe that a traffic violation has occurred. Guerra v. State, 432
S.W.3d 905, 911 (Tex. Crim. App. 2014). A traffic stop made to investigate a traffic
violation must be reasonably related to that purpose and may not be prolonged beyond
the time needed to complete the tasks associated with the traffic stop. See Kothe v.
State, 152 S.W.3d 54, 63-64 (Tex. Crim. App. 2004). However, if an officer develops
reasonable suspicion that the driver or another occupant of the vehicle is involved in
criminal activity, the officer may continue questioning the individual after the traffic stop
investigation is resolved. St. George v. State, 237 S.W.3d 720, 726-27 (Tex. Crim. App.
2007). The reasonableness of an extended detention depends on whether law
enforcement officers diligently pursued a means of investigation that was likely to confirm
or dispel their suspicions expeditiously. United States v. Sharpe, 470 U.S. 675, 687-88,
105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). When determining the reasonableness of the
duration of a detention, courts may consider whether legitimate law enforcement
purposes were served by any delay in the investigation. Id. at 685. “When a traffic stop
detention is prolonged by a reasonable delay to comply with legitimate police policy, no
4 Fourth Amendment violation has occurred.” Bullock v. State, 426 S.W.3d 226, 232 (Tex.
App.—Houston [1st Dist.] 2012, no pet.).
Appellant argues that the officers’ authority for detaining him ended before the
deputy began his DWI investigation by offering appellant the field sobriety tests, because
the officers reasonably should have completed their tasks related to the investigation
before then. The State responds that the delay in the investigation was for legitimate law
enforcement purposes and, consequently, appellant’s continued detention was not
unreasonable.
Here, appellant was stopped following an observed traffic violation. Prior to the
conclusion of the traffic stop, the two officers on the scene observed that appellant had
slowed or slurred speech and had difficulty in locating his driver’s license. They also saw
open and empty alcoholic beverage containers in appellant’s vehicle and heard
appellant’s admission that he had consumed several alcoholic drinks prior to the traffic
stop. These observations were made before the officers had positively identified
appellant and checked for warrants, i.e., before the initial traffic stop was completed.
Therefore, the officers developed reasonable suspicion during their initial investigation to
justify an extended detention for a DWI investigation.
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-17-00285-CR
MATTHEW DON HENSLEE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 18th District Court Johnson County, Texas1 Trial Court No. F50386, Honorable John Edward Neill, Presiding
January 3, 2019
MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.
Matthew Don Henslee, appellant, pleaded guilty to felony driving while
intoxicated.2 He was sentenced to ten years’ imprisonment, probated to ten years of
community supervision. In this appeal, appellant argues that the trial court should have
granted his motion to suppress evidence. We affirm.
1 Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to
this Court from the Tenth Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
2 See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2017). Background
A deputy constable for Johnson County, Texas, Precinct 2, responded to a 911
call reporting a dark-colored Ford truck “swerving all over the road.” The deputy constable
initiated a traffic stop after he observed a black Ford truck, driven by appellant, following
closely behind a work truck, then swerving across lane markers without signaling. The
time of the stop was around 8:05 p.m. When he approached the vehicle, he saw two
open beer bottles in the rear floor board, and when he made contact with appellant, he
smelled the odor of an alcoholic beverage coming from the truck. Appellant’s speech was
slightly slurred, and he struggled to locate his driver’s license. He said he had consumed
six or seven vodka waters.
Within two or three minutes, a deputy from the Johnson County Sheriff’s Office
arrived on the scene, and the two officers conferred. The second officer, who was more
experienced in DWI investigations, felt that he should continue to investigate. However,
because he was from a different law enforcement agency, he needed authorization from
his supervisor to take over.
Appellant exited the truck and leaned against the tailgate. The deputy constable
told appellant that he might be able to call for a ride. Appellant told the officers he had
twice been convicted of DWI and that they could retrieve his occupational license from
the console of his truck. A supervising officer from the sheriff’s department arrived on the
scene around 8:22 p.m. After the officers conferred, the deputy asked appellant to
perform the standard field sobriety tests, but appellant refused.
2 Appellant was arrested for suspicion of driving while intoxicated and violating his
occupational license. He was placed in the deputy’s vehicle for transport at 8:32 p.m. At
the jail, appellant refused to provide blood or breath for analysis. The deputy then
obtained a warrant for appellant’s blood. The warrant was issued by the Judge of the
Johnson County Court at Law No. 2.
Appellant was later charged with the felony offense of DWI. He filed a motion to
suppress, which was denied by the trial court. He subsequently entered a plea of guilty.
On appeal, appellant maintains that the trial court erred by denying his motion to suppress
evidence because (1) his continued detention after the initial traffic stop was unlawful,
and (2) the warrant for his blood was issued unlawfully because the evidence failed to
show that he refused a request for a specimen of his blood or breath.
Standard of Review
We review a trial court’s ruling on a motion to suppress for an abuse of discretion.
State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We view the record in the
light most favorable to the trial court’s determination, and will reverse the judgment only
if it is arbitrary, unreasonable, or “outside the zone of reasonable disagreement.” Id.
Because the trial court is the sole trier of fact, we give almost total deference to its
determination of historical facts. Id.
3 Analysis
Prolonged Detention
Appellant raises three arguments related to the denial of his motion to suppress.
In his first issue, he contends that the officers did not diligently pursue their investigation
after he was stopped. Appellant does not contest the initial traffic stop, but challenges
his continued detention after it.
Law enforcement officers are justified in stopping a vehicle when they have
reasonable suspicion to believe that a traffic violation has occurred. Guerra v. State, 432
S.W.3d 905, 911 (Tex. Crim. App. 2014). A traffic stop made to investigate a traffic
violation must be reasonably related to that purpose and may not be prolonged beyond
the time needed to complete the tasks associated with the traffic stop. See Kothe v.
State, 152 S.W.3d 54, 63-64 (Tex. Crim. App. 2004). However, if an officer develops
reasonable suspicion that the driver or another occupant of the vehicle is involved in
criminal activity, the officer may continue questioning the individual after the traffic stop
investigation is resolved. St. George v. State, 237 S.W.3d 720, 726-27 (Tex. Crim. App.
2007). The reasonableness of an extended detention depends on whether law
enforcement officers diligently pursued a means of investigation that was likely to confirm
or dispel their suspicions expeditiously. United States v. Sharpe, 470 U.S. 675, 687-88,
105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). When determining the reasonableness of the
duration of a detention, courts may consider whether legitimate law enforcement
purposes were served by any delay in the investigation. Id. at 685. “When a traffic stop
detention is prolonged by a reasonable delay to comply with legitimate police policy, no
4 Fourth Amendment violation has occurred.” Bullock v. State, 426 S.W.3d 226, 232 (Tex.
App.—Houston [1st Dist.] 2012, no pet.).
Appellant argues that the officers’ authority for detaining him ended before the
deputy began his DWI investigation by offering appellant the field sobriety tests, because
the officers reasonably should have completed their tasks related to the investigation
before then. The State responds that the delay in the investigation was for legitimate law
enforcement purposes and, consequently, appellant’s continued detention was not
unreasonable.
Here, appellant was stopped following an observed traffic violation. Prior to the
conclusion of the traffic stop, the two officers on the scene observed that appellant had
slowed or slurred speech and had difficulty in locating his driver’s license. They also saw
open and empty alcoholic beverage containers in appellant’s vehicle and heard
appellant’s admission that he had consumed several alcoholic drinks prior to the traffic
stop. These observations were made before the officers had positively identified
appellant and checked for warrants, i.e., before the initial traffic stop was completed.
Therefore, the officers developed reasonable suspicion during their initial investigation to
justify an extended detention for a DWI investigation.
Although the sheriff’s deputy had authority to make an arrest for DWI, he testified
that he had to get clearance from his supervisor to do so, because he worked for a
different law enforcement agency than the officer who made the initial traffic stop. The
evidence shows that the supervisor arrived on the scene approximately sixteen minutes
5 after the initial stop. Within ten minutes of the supervisor’s arrival, appellant was asked
to perform a field sobriety test, then arrested.
We conclude that the officers possessed specific, articulable facts leading them to
conclude that appellant was engaged in criminal activity and that, therefore, they had
reasonable suspicion to detain him. Furthermore, the trial court could have reasonably
concluded that appellant’s prolonged detention—from the time the officers observed the
signs suggesting that appellant was driving while intoxicated to the time he was asked to
perform field sobriety tests—was not unreasonable. See, e.g., Belcher v. State, 244
S.W.3d 531, 540-42 (Tex. App.—Fort Worth 2007, no pet.) (detention for additional
twenty-seven minutes to allow another officer to perform DWI investigation was not
unreasonable under the circumstances); Smith v. State, No. 03-06-00085-CR, 2007 Tex.
App. LEXIS 1783, at *10 (Tex. App.—Austin Mar. 7, 2007, pet. ref’d) (mem. op., not
designated for publication) (delaying DWI investigation approximately twenty-six minutes
to await arrival of rookie officer for training purposes was reasonable, as it furthered
legitimate law enforcement purposes). We conclude the trial court did not abuse its
discretion in determining that appellant’s detention was not unduly prolonged. We
overrule appellant’s first issue.
Validity of Search Warrant
In his second issue, appellant contends that the warrant issued for his blood was
invalid because it did not comply with article 18.01(j) of the Texas Code of Criminal
Procedure. Article 18.01(j) authorizes a magistrate to issue a warrant for a blood draw in
DWI cases if the suspect refuses to consent to either a blood draw or a breath test. TEX.
6 CODE CRIM. PROC. ANN. art. 18.01(j) (West Supp. 2018); Thom v. State, 437 S.W.3d 556,
560 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Appellant argues that, because the
affidavit in support of the warrant does not indicate that appellant refused to submit to a
breath or blood test as required by article 18.01(j), the warrant was unlawful.
Chapter 18 of the Texas Code of Criminal Procedure governs the issuance of
search warrants. Appellant’s argument presupposes that the warrant in this case was
issued pursuant to article 18.01(j) because it was issued by the judge of the county court
at law, who is a “magistrate” under article 2.09 of the Code of Criminal Procedure. See
TEX. CODE CRIM. PROC. ANN. art. 2.09 (West Supp. 2018). While we agree with appellant’s
assertion that a warrant issued under 18.01(j) requires evidence that the suspect refused
to submit to a breath or blood alcohol test, we disagree with his proposition that 18.01(j)
is the only available avenue for a magistrate to issue a warrant in DWI cases.
As a statutory county court judge, the Judge of Johnson County Court at Law No.
2 is one of the magistrates permitted to sign an evidentiary search warrant under article
18.01(c). TEX. CODE CRIM. PROC. ANN. art. 18.01(c). An evidentiary search warrant may
issue for the extraction of blood. Clay v. State, 391 S.W.3d 94, 97 (Tex. Crim. App. 2013).
As we explained in Barrios v. State, subsection (j) of article 18.01 is intended to expand,
not restrict, the pool of judges who can issue a warrant to obtain a blood specimen. 452
S.W.3d 835, 846 (Tex. App.—Amarillo 2014, pet. ref’d); see also Zalman v. State, No.
13-13-00471-CR, 2015 Tex. App. LEXIS 1074, at *10-12 (Tex. App.—Corpus Christi Feb.
5, 2015, pet. ref’d) (mem. op., not designated for publication). Therefore, where there is
no showing that the accused citizen has refused to give a specimen of breath or blood,
as required for a warrant under subsection (j), law enforcement is not barred from seeking
7 a general evidentiary warrant under subsection (c), on the grounds set forth in article
18.02(a)(10). The grounds for an evidentiary warrant issued under article 18.02(a)(10)
do not include a suspect’s refusal to voluntarily provide a breath or blood sample. TEX.
CODE CRIM. PROC. ANN. arts. 18.01(c), 18.02(a)(10) (West Supp. 2018).
Here, the statutory county court judge was authorized to issue the warrant for a
specimen of appellant’s blood pursuant to article 18.01(c) of the Texas Code of Criminal
Procedure. We therefore overrule appellant’s second issue.
Article 38.23
In his third issue, appellant urges that article 38.23 of the Texas Code of Criminal
Procedure mandates suppression of the evidence against him. Article 38.23 provides
that “[n]o evidence obtained by an officer or other person in violation of any provisions of
the Constitution or laws of the State of Texas, or of the Constitution or laws of the United
States of America, shall be admitted in evidence against the accused on the trial of any
criminal case.” TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2018). We have held that
appellant’s detention was not unlawfully extended and that the warrant for appellant’s
blood draw was not unlawfully issued. Therefore, we conclude that the trial court did not
abuse its discretion by denying the motion to suppress. Appellant’s third issue is
overruled.
8 Conclusion
Having overruled appellant’s issues, we affirm the judgment of the trial court.
Judy C. Parker Justice
Do not publish.