Keith Edward Bullock v. The State of Texas--Appeal from 411th District Court of Polk County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-01-469 CR
____________________
KEITH EDWARD BULLOCK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. 15,927
O P I N I O N

A jury convicted Keith Edward Bullock of a third degree felony offense, assault of a public servant. See Tex. Pen. Code Ann. 22.01 (b)(1) (Vernon Supp. 2002). The trial court assessed his punishment at five years in the Texas Department of Criminal Justice, Institutional Division and a $1,000 fine, but probated the sentence and placed Bullock on community supervision for five years. (1) Bullock primarily challenges the admission of blood test results into evidence. We will affirm.

For several months prior to his arrest, Bullock had been under investigation for narcotic trafficking. On the day of Bullock's arrest, officers had set up surveillance at Bullock's place of business and also at the residence of a third party. Driving an unmarked vehicle, Officer Brandan Lovell followed Bullock to the third party's residence, and continued to follow Bullock when he left, about fifteen minutes later. Because Bullock was driving erratically, Lovell thought Bullock might be intoxicated and might be in possession of an illegal controlled substance. Lovell called for assistance from Officer Doug Phillips, who was wearing a uniform and driving a marked patrol unit. Phillips activated his emergency lights and stopped Bullock at his business location. During the arrest, Bullock struck Lovell several times. Lovell testified that Bullock's eyes were glassy and red but Bullock did not smell as if he had been drinking alcoholic beverages. Lovell advised Phillips that Bullock was "on something and to cuff him." Bullock struggled as Lovell and Phillips attempted to handcuff him. The officers did not find any illegal substances on Bullock or in his vehicle, but obtained a search warrant requiring Bullock to allow a blood sample to be taken to test for narcotic and alcohol use.

Bullock brings four issues. In issue one, Bullock contends the trial court erred in denying his motion to suppress the results of a blood test because the probable cause affidavit supporting the search warrant failed to meet requirements of the federal and state constitutions as well as the Texas Code of Criminal Procedure. In issue two, Bullock contends the trial court erred in denying his motion to suppress the results of a blood test because the officer's stop and arrest of Bullock was without a warrant, without probable cause and violated his rights under the federal and state constitutions and the Texas Code of Criminal Procedure. In issue three, Bullock asserts the trial court erred in overruling his objections to the introduction of the blood test and its results before the jury because Lovell's affidavit failed to comply with the federal and state constitutions and the Texas Code of Criminal Procedure. In issue four, Bullock maintains the trial court erred in overruling his objections to the introduction of the blood analysis and alleged drug use before the jury.

The trial court conducted two suppression hearings. The first dealt with the blood testing issue, while the second considered the traffic stop and arrest.

At the first suppression hearing, Bullock asserted that an invalid affidavit, that of Officer Brandan Lovell, was used to procure the search warrant compelling Bullock to allow his blood to be drawn. Lovell was the only witness at the hearing on Bullock's motion to suppress. According to Lovell, the officers continued their investigation for additional evidence relating to Bullock's condition while Bullock was being taken into custody for the alleged assault. After Bullock refused to have his blood tested, the officers got a search warrant.

The original search warrant (2) introduced into evidence at the hearing had Lovell's affidavit attached to it. During his testimony, Lovell conceded his affidavit (3) contained the word "blood" only in the phrase, "bloodshot eyes." He further admitted that the affidavit did not explain to the magistrate that the officers were asking for the warrant in order to obtain Bullock's blood. When asked by defense counsel why the officers needed Bullock's blood, Lovell stated that they were trying to show that Bullock was under the influence of some type of narcotic and that the affidavit described that condition for the magistrate.

On further cross examination, Lovell testified as follows:

 

[Defense Counsel]: Sir, how can you ask in an affidavit - a Judge, how can you tell a Judge in an affidavit that you want to search for blood when you don't use the word "blood"?

 

[Lovell]: It basically showed what we were wanting it for. I mean, you keep skipping from the front page. The front page clearly explains what the requirement was for this search warrant.

 

[Defense Counsel]: Does it? Isn't the first page the warrant signed by the Judge?

 

[Lovell]: Well, it explains what is to be done from the Judge's signature.

 

[Defense Counsel]: Are you aware that the Judge has to read the affidavit to make a determination from the four corners of the affidavit what you seek and why?

 

[Lovell]: Evidently he felt like that was enough that was on there.

 

[Defense Counsel]: My question is: Do you understand that to be the rules?

 

[Lovell]: Yes, I do.

 

[Defense Counsel]: Can you - again, do you understand that the requirement is that you need to explain to the Judge where the individual is and why you want to take it? Is there anything in this affidavit where you tell us?

 

[Lovell]: I was not aware of that we had to do that, no.

 

On redirect examination, Lovell testified as follows:

 

[State's Attorney]: And, of course, the warrant itself incorporated the affidavit in the body of the warrant, did it not?

 

[Lovell]: Yes, it did.

 

[State's Attorney]: And I guess you are looking at the two documents in conjunction with one another, are you not?

 

[Lovell]: Correct. One would not work without the other.

When we review a trial court's decision on a motion to suppress evidence based upon a claim that the search warrant was not supported by probable cause, we apply the "bifurcated" standard of review set out in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). See Burke v. State, 27 S.W.3d 651, 654 (Tex. App.--Waco 2000, pet. ref'd). Because probable cause to support a warrant's issuance is determined from the "four corners" of the affidavit alone, there are no credibility choices to be made by the trial court in examining the sufficiency of the affidavit to establish probable cause. See Robuck v. State, 40 S.W.3d 650, 654 (Tex. App.--San Antonio 2001, pet. ref'd); see Burke, 27 S.W.3d at 654. Thus, we review the trial court's application of the law of probable cause, as well as the court's ruling on the motion to suppress, de novo. See Burke, 27 S.W.3d at 654.

We must examine the totality of the circumstances when considering whether the facts alleged in the affidavit establish probable cause. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983); Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996). The issuing magistrate is entitled to draw reasonable inferences from the facts stated in the affidavit, and we must accord those inferences great deference. Ramos, 934 S.W.2d at 363.

Taking blood is a search and seizure under federal and state law. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); Escamilla v. State, 556 S.W.2d 796, 798 (Tex. Crim. App. 1977). Absent consent, officers must obtain a valid warrant to take a blood sample from a defendant in custody. See Davis v. State 831 S.W.2d 426, 440 (Tex. App.--Austin 1992 pet. ref'd).

A search warrant for evidence must be supported by probable cause: (1) that a specific offense has been committed, (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.. . . See Tex. Code Crim. Proc. Ann. art. 18.01(c) (Vernon Supp. 2002).

The State argues that the warrant and the affidavit are a "single, stapled and unified document," that the warrant specifically states that the affidavit is incorporated into the warrant "for all purposes" and that the warrant specifically directs that Bullock's blood sample be obtained. In support of its argument, the State relies on Reese v. State, 712 S.W.2d 131 (Tex. Crim. App. 1986); Barnes v. State, 876 S.W.2d 316, 327-28 (Tex. Crim. App. 1994); United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965). All of these cases are distinguishable.

In Reese, the question was whether the affidavit was properly sworn to and properly incorporated by reference in the warrant. Reese, 712 S.W.2d at 132. It did not involve the proposition that confronts us: whether a probable cause affidavit that lacks the statutorily required element of a description of the evidence to be obtained may be cured by an evidence description in the warrant where there is no language in the affidavit incorporating the warrant and where there is no evidence that the trial court considered the affidavit to incorporate the warrant.

In Barnes, the Court of Criminal Appeals decided that when documents submitted with an affidavit are not incorporated by reference, they may be implicitly incorporated if it is established that: (1) the issuing magistrate essentially considered the attached documents as "part and parcel" of the warrant affidavit; (2) the documents were physically attached; and (3) the matters contained in the documents were an obvious continuation of the affidavit. Barnes, 876 S.W.2d at 327. The testimony presented by Officer Lovell at the suppression hearing does not establish that the magistrate essentially considered the warrant as "part and parcel" of the affidavit.

Moreover, it is well settled law in Texas that the description contained in the affidavit limits and controls the description contained in the warrant. Riojas v. State, 530 S.W.2d 298, 303 (Tex. Crim. App. 1975); State v. Tipton, 941 S.W.2d 152, 155 (Tex. App.--Corpus Christi 1996, pet. ref'd). The logical basis for this rule was explained by the Texas Court of Criminal Appeals in Green v. State, 799 S.W.2d 756 (Tex. Crim. App. 1990):

The reason for the rule underscores our recognition that a factual affidavit, upon which the actual instrument of search or seizure must succeed or fail, is usually more specific and meticulous in reciting the information known to an affiant than is the warrant which follows. By nature the affidavit is intended to inform and persuade; the warrant simply executes the determination of probable cause made by the magistrate. When the question on appeal relates to descriptive facts supporting the probable cause determination, a reviewing court may logically look behind the warrant to the supporting affidavit. But, the same may not be said for all so-called 'technical defects' acknowledged by the State. Due to the nature of such errors, this Court has held such defects may be cured by explanatory testimony. We have never held such defects are curable solely by reference to another document which is itself a part of the controversy. . . . The danger posed by the possible use of pre-signed warrants or the alteration of affidavits after issuance of warrants is too great for this Court to consider such discrepancies a matter of inconsequential irregularity, absent some form of testimony or other evidence other than the documents in question themselves, which tends to reveal the error as technical or clerical in nature. Without even limited verification of the error as technical defect, the underlying goal of preventing mistaken execution of warrants is not served. . . . There being a total lack of evidence corroborating the State's contention of clerical error, and having rejected the trial court's rationale that the two documents may be read together absent any such corroboration, we are constrained to hold the trial court improperly overruled appellant's Motion to Suppress evidence.

 

Green, 799 S.W.2d at 760-61 (citations omitted).

The State also cites United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965) for the general proposition that "affidavits for search warrants must be tested and interpreted by magistrates and courts in a common sense and realistic fashion." Id. at 108. Texas courts agree. See Jones v. State, 833 S.W.2d 118, 123-24 (Tex. Crim. App. 1992). But, it is also well settled that "[t]he federal constitution sets the floor for individual rights; state constitutions establish the ceiling." LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex. 1986).

Texas cases continue to require that an affidavit supporting a warrant to search under section 18.01(c) must establish all three elements required by that section: i.e., (1) that a specific offense has been committed, (2) that specifically described property or items to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched. See Tex. Code Crim. Proc. Ann. art. 18.01(c) (Vernon Supp. 2002).

In Johnson v. State, 722 S.W.2d 417 (Tex. Crim. App. 1986), overruled on other grounds by McKenna v. State, 780 S.W.2d 797 (Tex. Crim. App. 1989), the appellate court found that the supporting affidavit was insufficient where it did not provide substantial facts establishing probable cause to believe that the items sought would be located at defendant's apartment. "Absent these underlying facts, the judge was unable to make an independent determination of probable cause and the evidence seized as a result of the search should have been suppressed." Johnson, 722 S.W.2d at 422.

In Davis v. State, 831 S.W.2d 426 (Tex. App.--Austin 1992, pet. ref'd), the appellate court found the supporting affidavit failed to establish probable cause where it did "not even state that the evidence to be searched for and seized is the defendant's blood. No facts whatsoever are set out in the affidavit to show that the items to be searched for are evidence of a crime or show that the person involved committed the offense. The motion to which the affidavit was attached simply states that appellant is a suspect in the offense and then requests the blood, hair, and sperm samples." Davis, 831 S.W.2d at 440.

In Taylor v. State, 54 S.W.3d 21 (Tex. App.--Amarillo 2001, no pet.), the Amarillo Court of Appeals held that an affidavit failed to establish probable cause for a warrant to search an appellant's home where the warrant was based on Internet transmission of child pornography by an particular and the affidavit did not sufficiently connect appellant to that screen name. Taylor, 54 S.W.3d at 24-26 (discussing the lack of evidence connecting the screen name to appellant and the lack of evidence showing the contraband was susceptible to receipt or delivery from the specific site to be searched).

In Flores v. State, 888 S.W.2d 193, 198 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd), the court found the supporting affidavit was insufficient to establish probable cause where it incorrectly stated the vehicle to be searched was owned and controlled by the owners of the suspected premises rather than appellant. At the suppression hearing, the officer testified (1) he was aware appellant was the actual owner of the vehicle and (2) he had probable cause to suspect the vehicle contained contraband based on the officer's surveillance of the vehicle as it arrived and departed from the suspected premises. However, the appellate court noted that none of those facts were included within the four corners of the affidavit or presented to the magistrate and concluded that the court "must determine the legal adequacy of an affidavit in support of a search warrant by reviewing it within its four corners." Id. at 197.

Thus, we agree with Bullock's arguments presented in issues one, three, and four that the Lovell affidavit did not show probable cause to obtain his blood and that the results therefore were before the jury improperly. (4) However, our analysis does not end here. Having determined an error of constitutional magnitude occurred, we must now conduct a harmless error analysis to determine if reversal of Bullock's punishment is appropriate. See Tex. R. App. P. 44.2(a).

As explained in Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944, 121 S. Ct. 1407, 149 L. Ed. 2d 349 (2001):

We must be able to conclude from the record that the erroneously admitted evidence was, in fact, harmless as to punishment beyond a reasonable doubt. An appellate court should not focus on the propriety of the outcome of the trial. Instead, the appellate court should calculate as much as possible the probable impact of the error on the jury in light of the existence of other evidence. While the most significant concern must be the error and its effects, the presence of overwhelming evidence supporting the finding in question can be a factor in the evaluation of harmless error. If an appellate court rules that an error is harmless, it is in essence asserting that the nature of the error is such that it could not have affected the jury. Stated in an interrogatory context, a reviewing court asks if there was a reasonable possibility that the error, either alone or in context, moved the jury from a state of nonpersuasion to one of persuasion as to the issue in question.

Wesbrook, 29 S.W.3d at 119 (citations omitted).

Here, reversal is not appropriate. Bullock was found guilty of assaulting a public servant. Overwhelming record evidence supports the jury's verdict. Lovell testified that Bullock struck him [Lovell] several times during the arrest. Both Officer Phillips and Officer Galloway also testified that Bullock struck Officer Lovell. The defense called no witnesses to dispute this testimony.

In light of this evidence, we do not find that it to be reasonably possible that admission of the blood test evidence, either alone or in context, moved the jury from a state of nonpersuasion to one of persuasion on the assault issue. Further, the probated sentence determined by the jury leads us to conclude the erroneously admitted evidence was harmless as to punishment beyond a reasonable doubt. Issues one, three and four are overruled.

In issue two, Bullock complains that there was no probable cause for his stop and arrest. He argues that the stop was only a pretext to search his truck. Bullock concedes that pretextual stops are allowed under Texas law, but argues that the law should be reviewed and the courts should discourage conduct such as that of the officers in this case.

Here, Officer Lovell observed Bullock driving at "anywhere between 95-115 miles per hour." Lovell was in contact with Deputy Phillips and advised Phillips of what he was observing. Phillips effected the traffic stop. An "objectively valid traffic stop is not unlawful under Article I, 9, just because the detaining officer had some ulterior motive for making it." Crittenden v. State, 899 S.W.2d 668, 674 (Tex. Crim. App. 1995). Issue two is overruled.

The trial court's judgment and sentence are affirmed.

AFFIRMED.

________________________________

DON BURGESS

Justice

 

Submitted on October 1, 2002

Opinion Delivered November 27, 2002

Do not publish

 

Before Walker, C.J., Burgess, and Gaultney, JJ.

1. The punishment range for a third degree felony offense is not less than 2 years nor more than 10 years, and, in addition to imprisonment, the individual adjudged guilty may be punished by a fine not to exceed $10,000. See Tex. Pen. Code Ann. 12.34 (Vernon 1994).

2. The search warrant, which incorporated Lovell's affidavit by reference, stated in pertinent part:

WHEREAS, the Affiant whose signature is affixed to the Affidavit appearing on the reverse hereof did . . . swear to the said Affidavit before me, which said Affidavit is by this reference incorporated herein for all purposes, and

 

WHEREAS, I find that the verified facts stated by the Affiant in said Affidavit shows that Affiant has probable cause for the belief expressed therein and establishes the existence of proper grounds for the issuance of the Warrant:

 

NOW THEREFORE, you are commanded to transport the said KEITH EDWARD BULLOCK to Memorial Medical Center . . . and cause a qualified medical technician to obtain a blood sample from . . . BULLOCK in accordance with accepted medical procedures. It is further ordered . . . that a qualified medical technician from Memorial Medical Center . . . obtain by accepted medical procedures a sample of blood from . . . BULLOCK.. . .

3. The pertinent portion of Lovell's affidavit provides:

7. Your Affiant shall show BULLOCK displayed an appearance of being under the influence of a controlled substance. This includes but not limited to, glassey eyes that were blood shot, unusual strength, and unsteady on his feet. It is the opinion of your AFFIANT, BULLOCK was a danger to himself, as well as others. Your AFFIANT did not smell any alcoholic beverages on BULLOCK. Your AFFIANT shall show BULLOCK operated a motor vehicle on the public highways in the State of Texas.

4. We do not consider Bullock's argument the affidavit was defective because of misrepresentations of falsehoods. Bullock neither presented this argument in his motions to suppress nor in his arguments to the court at the hearings. Thus, this complaint is not preserved for our review. Tex. R. App. P. 33.1(a); see Robuck, 40 S.W.3d at 653.