No. PD-0527-18

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

JAMES ALLAN BURG, II

V.

THE STATE OF TEXAS

On Discretionary Review

from the Ninth Court of Appeals Beaumont, Texas No. 09-16-00200-CR

On Appeal from the County Court at Law No. 1

Montgomery County, Texas Cause No. 15-307592

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MATTHEW J. DELUCA State Bar No. 24069601 712 Main St., Suite 2450 Houston, Texas 77002 Tel: (713) 429-4400 Fax: (713) 228-2366 matt@mattdelucalaw.com Attorney for Appellant

Oral Argument Requested

PD-0527-18COURT OF CRIMINAL APPEALS

AUSTIN, TEXASTransmitted 6/29/2018 4:30 PM

Accepted 6/29/2018 4:33 PMDEANA WILLIAMSON

CLERK

FILEDCOURT OF CRIMINAL APPEALS 6/29/2018 DEANA WILLIAMSON, CLERK

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IDENTIFICATION OF PARTIES AND COUNSEL

Appellant

James Allan Burg, II

Appellant’s Trial Counsel Joseph LaBella

333 Simonton St., Suite 200 Conroe, Texas 77301

Appellant’s Appellate Counsel

Matthew DeLuca 712 Main St., Suite 2450 Houston, Texas 77002

Appellee

The State of Texas

Appellee’s Trial Counsel Neel Kapur Sara Corradi

Montgomery County District Attorney’s Office 207 W. Phillips St., 2nd Floor

Conroe, Texas 77304

Appellee’s Appellate Counsel Bill Delmore

Montgomery County District Attorney’s Office 207 W. Phillips St., 2nd Floor

Conroe, Texas 77304

Trial Judge The Honorable Dennis Watson County Court at Law No. 1 Montgomery County, Texas

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TABLE OF CONTENTS Identification of Parties and Counsel ........................................................................ i

Table of Contents ..................................................................................................... ii

Index of Authorities ................................................................................................ iii

Statement Regarding Oral Argument ....................................................................... 1

Statement of the Case .............................................................................................. 1

Statement of Procedural History .............................................................................. 2

Ground for Review ................................................................................................... 2

Does a failure to object to a driver’s license suspension at trial bar complaint on appeal?

Argument ....................................................................................................... 2

Prayer ....................................................................................................................... 7

Certificate of Compliance ........................................................................................ 8

Certificate of Service ................................................................................................ 8

Appendix .................................................................................................................. 9

iii

INDEX OF AUTHORITIES

Cases Gutierrez v. State

380 S.W.3d 167 (Tex. Crim. App. 2012) ............................................................ 5 Love v. State

702 S.W.2d 319 (Tex. App.—Austin 1986, no pet.) ....................................... 6,7

Miffleton v. State 728 S.W.2d 880 (Tex. App.—Austin 1987), aff’d, 777 S.W.2d 76 (Tex. Crim. App. 1989) .............................................................................................. 6

Speth v. State 6 S.W.3d 530 (Tex. Crim. App. 1999) .......................................................... 3,4,5

Statutes & Rules TEX. CODE CRIM. PROC. art. 42.02 ........................................................................... 4

TEX. PENAL CODE § 12.01(c) ................................................................................... 4

TEX. PENAL CODE § 49.04 .................................................................................... 1,6

TEX. R. APP. P. 66.3(b) .............................................................................................. 3

TEX. R. APP. P. 66.3(c) .............................................................................................. 3

TEX. R. APP. P. 66.3(d) .............................................................................................. 3

TEX. REV. CIV. STAT. ANN. art. 6687b, § 24(g) ...................................................... 6

TEX. TRANSP. CODE § 521.341(3) ............................................................................. 5

TEX. TRANSP. CODE § 521.344(a) ......................................................................... 3,5

TEX. TRANSP. CODE § 521.344(d) ...................................................................... 2,5,7

TEX. TRANSP. CODE § 521.344(d)(2) .................................................................... 6,7

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

JAMES ALLAN BURG II, Appellant, in accordance with Texas Rule of

Appellate Procedure 68, files this petition for discretionary review.

STATEMENT REGARDING ORAL ARGUMENT

This case presents a unique issue related to the classification of a license

suspension and the ability to raise a complaint on appeal. Burg believes oral

argument would assist this Court in its decision.

STATEMENT OF THE CASE

This is an appeal from a driving while intoxicated (“DWI”) conviction.

On May 26, 2016, a jury found Burg guilty of misdemeanor DWI with an

alcohol concentration of 0.15 or more. See TEX. PENAL CODE § 49.04. (6 RR

160-61, CR 99). The jury assessed punishment at one year in the Montgomery

County Jail and a $1500 fine, recommending that the trial court place Burg on

community supervision. (7 RR 20-21, CR 99). The trial court followed the

jury’s recommendation and placed Burg on community supervision for a

period of 18 months. The trial court also ordered Burg’s driver’s license

suspended for a period of one year. (7 RR 22-25, CR 99). Burg argued on

appeal that the trial court was not authorized by law to suspend his driver’s

license.

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STATEMENT OF PROCEDURAL HISTORY

On April 11, 2018, the Ninth Court of Appeals delivered a memorandum

opinion affirming the trial court’s judgment. Burg v. State, No. 09-16-00200-

CR, 2018 WL 1747393, 2018 Tex. App. LEXIS 2531 (Tex. App.—Beaumont,

April 11, 2018) (mem. op., not designated for publication). Burg’s motion for

rehearing was filed on April 26, 2018 and denied on April 30, 2018.

GROUND FOR REVIEW

1. Does a failure to object to a driver’s license suspension at trial bar complaint on appeal?1

ARGUMENT

After a jury convicted Burg of misdemeanor DWI, the trial court placed

him on community supervision for a period of 18 months, assessed a $1500

fine, and ordered his driver’s license suspended for a period of one year. (7 RR

24, CR 99). On appeal, Burg argued that the license suspension violated

section 521.344(d) of the Texas Transportation Code. The lower court

overruled the issue without considering its merits, instead describing the

license suspension as a condition of community supervision that Burg could

not complain about on appeal because he did not object at trial. Burg, slip op.

at 19.

1 7 RR 24; CR 99.

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This case warrants review because the lower court erroneously decided

that the license suspension was a condition of community supervision. To the

contrary, Burg’s license suspension was part of the sentence, not a condition

of community supervision. And because the trial court was not authorized by

law to suspend Burg’s license, that part of the sentence was void, and could be

a raised for the first time on appeal. The lower court’s holding conflicts with

Speth v. State2 and other decisions of this Court, and conflicts with statutes in

the Texas Code of Criminal Procedure, Texas Penal Code, and Texas

Transportation Code. Burg asks this Court to settle this important question of

law. TEX. R. APP. P. 66.3(b), 66.3(c), 66.3(d).

Burg’s license suspension was part of his sentence, not a condition of community supervision.

In its opinion, the lower court erroneously described Burg’s license

suspension as a “condition of community supervision.” But a license

suspension for an offense involving intoxication is a separate penalty

independent of community supervision, and dictated by section 521.344 of the

Texas Transportation Code. Moreover, a suspension would have been

required if Burg did not receive community supervision. See TEX. TRANSP.

CODE § 521.344(a).

2 6 S.W.3d 530 (Tex. Crim. App. 1999).

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In the trial judgment, Burg’s license suspension was reflected with other

orders of the sentence including confinement and fine. (CR 99). While the

trial court ordered the imposition of confinement suspended, remaining

orders of the sentence were not suspended. Further evidence to support

Burg’s position is found in the three-page document titled “Conditions of

Community Supervision,” signed and agreed to by the trial court and Burg.

(CR 101). The document identifies several specific conditions that Burg was

ordered to abide by while on community supervision but does not include any

mention of the order of a license suspension. (CR 101-03). If the license

suspension were a condition of community supervision, it would have been

included in the written conditions.

Here, Burg’s license suspension was imposed as part of his sentence.

The “sentence” is the part of the judgment that orders that the punishment

be carried into execution in the manner prescribed by law. TEX. CODE CRIM.

PROC. art. 42.02. A license suspension is a civil penalty but is considered

punishment for purposes of sentencing. See Tex. Penal Code § 12.01(c)

(license suspension may be included in the sentence). And this Court has held

that the sentence and conditions of community supervision are each separate

parts of the judgment. Speth v. State, 6 S.W.3d at 532. It follows that Burg’s

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license suspension, as part of the sentence, cannot also be a condition of his

community supervision.

Burg has an absolute and nonwaiveable right to be sentenced within the statutorily applicable range of punishment.

This Court has held that a defendant has an absolute and nonwaiveable

right to be sentenced within the statutorily applicable range of punishment

established by the Legislature, the complaint of which can be raised at any

time. Gutierrez v. State, 380 S.W.3d 167, 175 (Tex. Crim. App. 2012) (citing

Speth, 6 S.W.3d at 532-33 & n.5). That is, a defendant has a right to be

sentenced within the defined “universe of punishments applicable to the

offense.” Speth, 6 S.W.3d at n.5. Burg’s license suspension was outside the

defined universe of punishments statutorily applicable – specifically 521.344 of

the Texas Transportation Code. That he did not raise the objection at trial

does not preclude him from raising it for the first time on appeal.

The trial court was not authorized by law to suspend Burg’s driver’s license.

Generally, a person convicted of first-offense DWI is subject to a driver’s

license suspension. See TEX. TRANSP. CODE § 521.341(3) & 521.344(a).

However, an exception exists when a first-time offender is placed on

community supervision and ordered to complete a DWI education program.

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See TEX. TRANSP. CODE § 521.344(d). Another exception exists when a first-

time offender is placed on community supervision and is required to install an

ignition interlock device in his vehicle. See TEX. TRANSP. CODE §

521.344(d)(2).

In Love v. State, 702 S.W.2d 319 (Tex. App.—Austin 1986, no pet.), an

appellant was convicted of first-offense DWI and placed on community

supervision. On appeal, the appellant complained that the trial court had no

authority to impose a license suspension. Id. The Love court agreed, holding

the statute, read as a whole, supported the conclusion that a trial court could

not suspend the license of a first-time DWI offender placed on community

supervision and ordered to complete a DWI education program.3 Id. at 320. In

Miffleton v. State, 728 S.W.2d 880, 887 (Tex. App.—Austin 1987), aff’d, 777

S.W.2d 76 (Tex. Crim. App. 1989), the court drew the same conclusion about

treatment of first-time DWI offenders, though that appellant was disqualified

because he had a previous conviction.

The facts in this case are very similar to those in Love. Here, Burg was

convicted of first-offense DWI under section 49.04 of the Texas Penal Code

and placed on community supervision. As a condition of community 3 In Love, the statute on license treatment for first-time DWI offenders was former TEX. REV. CIV. STAT. ANN. art. 6687b, § 24(g). The relevant statutory language in Burg’s case is found in TEX. TRANSP. CODE § 521.344, enacted in 1995.

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supervision, he was ordered to complete a DWI education program within 180

days. Additionally, Burg was ordered to install an ignition interlock device in

his vehicle as a condition of community supervision. (CR 102). To order a

license suspension was plainly inconsistent with sections 521.344(d) and

521.344(d)(2) of the Texas Transportation Code and cannot stand. See Love,

702 S.W.2d at 321.

The lower court erred in its failure to consider the merits of Burg’s

complaint on appeal. Such a holding conflicts with decisions from this Court

and with statutory law. The lower court’s opinion should be reversed, and the

judgment should be reformed to omit the driver’s license suspension.

PRAYER

Burg prays that this Court grant review and, after full briefing on the

merits, issue an opinion resolving this important issue.

Respectfully submitted, /s/ Matthew J. DeLuca Matthew J. DeLuca State Bar No. 24069601 712 Main St., Suite 2450 Houston, Texas 77002 Tel: (713) 429-4400 Fax: (713) 228-2366 matt@mattdelucalaw.com Attorney for Appellant

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CERTIFICATE OF COMPLIANCE

I certify that this document contains 1,530 words and is in compliance

with Texas Rule of Appellate Procedure 9.4.

/s/ Matthew J. DeLuca Matthew J. DeLuca

CERTIFICATE OF SERVICE

I certify that a copy of this document was served on the following parties

through the efile.txcourts.gov e-filing system on June 29, 2018:

Bill Delmore Assistant District Attorney Montgomery County District Attorney’s Office 207 W. Phillips, 2nd Floor

bill.delmore@mctx.org Stacey Soule State Prosecuting Attorney PO Box 13046, Austin, TX 78711-3046 information@spa.texas.gov

/s/ Matthew J. DeLuca Matthew J. DeLuca

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APPENDIX

MEMORANDUM OPINION

OF THE NINTH COURT OF APPEALS

Filed April 11, 2018

  

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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

  

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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.

  

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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

  

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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.

  

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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

  

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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.

  

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(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

  

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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

  

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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

  

10  

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).

  

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“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

  

12  

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

  

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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.

  

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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

  

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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

  

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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

  

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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

  

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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

  

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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.