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Luckenbach v. State

Court of Appeals of Texas, Fourteenth District

June 6, 2017

LANCE MITCHELL LUCKENBACH, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the County Criminal Court at Law No. 10 Harris County, Texas Trial Court Cause No. 1935781

          Panel consists of Chief Justice Frost and Justices Christopher and Brown. (Brown, J., dissenting)

          MAJORITY OPINION

          Kem Thompson Frost Chief Justice

         Appellant Lance Mitchell Luckenbach challenges his conviction for driving while intoxicated, arguing in a single issue that the trial court should have granted his motion to suppress evidence of blood-alcohol-concentration tests conducted under a search warrant because the warrant's supporting affidavit did not show probable cause. Concluding the affidavit supports a finding of probable cause and the trial court did not err in denying appellant's motion to suppress, we affirm.

         I. Background

         After appellant was charged with driving while intoxicated ("DWI"), he filed a written motion to suppress blood-test evidence on the grounds that the affidavit in support of the search warrant failed to provide probable cause. Appellant attached the affidavit to his motion. The affiant, Officer David Ciers of the Houston Police Department, described his background and experience in the field of alcohol detection and then stated:

I have reason to believe that on or about November 1, 2013 at 12:08 AM, in Harris County, Texas, the Defendant did then and there unlawfully operate a motor vehicle in a public place while intoxicated. My belief is based on the following:
ssIn this case, On or about November 1, 2013 at approximately 12:08 AM Officer K.V. Mitchell, a peace officer employed by the Houston Police Department, observed a 2009 Black Audi A5, a motor vehicle, license plate BNK-8360, in the 1700 block of Gray Street a public place in Harris County, Texas, driving the wrong way eastbound on a oneway street that goes westbound only. Officer Mitchell a reliable and credible witness then initiated a traffic stop by "activating his emegency [sic] equipment in his marked police car and the defendant's vehicle stopped in the 2100 block of Hamilton a public roadway in Houston, Harris County, Tx. Officer Mitchell made contact with the defendant and he observed him with a strong odor of an alcoholic beverage on and about his breath. Officer Mitchell then asked for a DWI Task force unit and I came by the scene to assist with the investigation.
I came into contact with Defendant and noticed glassey [sic] eyes and a strong odor of an alcohol beverage on and about the Defendant's breath and person.
I asked Defendant to perform some field sobriety tests to determine the Defendant's level of intoxication, including the HGN, OLS, and WAT. I use these tests frequently and find them to be accurate and reliable indicators of intoxication or lack thereof and have arrested many people based on their poor performances on these tests (as well as having released many people based upon their satisfactory performance on these tests). The defendant refused to do all field sobriety test[s] at the scene.
At the scene, I offered the Defendant an opportunity to provide a sample of the Defendant's breath and Defendant declined to provide a sample. This is a violation of the Texas Implied Consent law and is also an indication to me that Defendant is attempting to hide evidence of the Defendant's level of intoxication.
Based on the totality of the circumstances including Defendant's actions and performance prior to the testing, I formed the opinion that Defendant was intoxicated due to the introduction of alcohol into the Defendant's system and had lost the normal use of the Defendant's mental and physical faculties. I am aware that blood can be drawn and used to scientifically determine a person's level of intoxication and I have therefore done so on many occasions. I am aware through my training and my experience that blood can be drawn through minimally invasive and medically accepted techniques. It is my belief that based upon all my observations, that a chemical sample will provide evidence of this Defendant's state of intoxication as well as evidence of the type of substance that has been consumed.

         In appellant's motion to suppress, he asserted that the affiant made conclusory statements. Specifically, appellant pointed to the following two statements and argued they were conclusory:

Based on the totality of the circumstances including Defendant's actions and performance prior to the testing, I formed the opinion that Defendant was intoxicated due to the introduction of alcohol into the Defendant's system and had lost the normal use of the Defendant's mental and physical faculties.
It is my belief that based upon all my observations, that a chemical sample will provide evidence of this defendant's state of intoxication as well as evidence of the type of substance that has been consumed.

         Appellant argued that the two conclusions did not support each other and that the four corners of the affidavit did not support the affiant-officer's initial conclusion that appellant was intoxicated based on alcohol consumption. Appellant further argued that the affiant-officer did not state that his observations of appellant were "accurate and reliable indicators of intoxication." According to appellant, the magistrate could not infer that driving the wrong way ...


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