Mugank v. State

1

Deng Mugank, Appellant v. The State of Texas

No. 02-21-00199-CR

Court of Appeals of Texas, Second District, Fort Worth

May 4, 2023

Do Not Publish Tex.R.App.P. 47.2(b)

On Appeal from the 213th District Court Tarrant County, Texas Trial Court No. 1588826D

Before Sudderth, C.J.; Kerr and Walker, JJ.

MEMORANDUM OPINION

ELIZABETH KERR, JUSTICE

Appellant Deng Mugank was arrested and charged with driving while intoxicated enhanced by two prior DWI convictions. See Tex. Penal Code Ann. §§ 49.04 .09(b)(2). Mugank moved to suppress blood-alcohol evidence seized under a search warrant. After the trial court denied Mugank's suppression motion, the case proceeded to trial. A jury found Mugank guilty, and the trial court assessed his punishment at four years in prison. Mugank appeals from his conviction, arguing in a single point that the trial court erred by denying his motion to suppress because (1) the magistrate who issued the search warrant did not place the law-enforcement officer seeking the warrant under oath and (2) the magistrate did not acknowledge the law-enforcement officer's search-warrant affidavit in writing on the affidavit itself.^[1] We will affirm.

I. Background

On March 27, 2019, Officer Micah Palmer with the North Richland Hills Police Department was dispatched on a welfare-check call in response to a report that a driver was passed out in a vehicle. When Officer Palmer arrived at the scene, he discovered Mugank slumped over the steering wheel of a car. The car was in drive with its engine running, but Mugank's foot was on the car's brake pedal.

Officer Palmer and the other responding officers were initially unable to rouse Mugank. Through an open window, the officers were able to unlock the car and were then able to put the car in park, turn off the engine, and remove the keys from the ignition. The officers eventually woke Mugank up. Mugank's speech was slurred, and Officer Palmer could smell alcohol on Mugank's breath. Officer Palmer also saw several empty beer containers on the car's front seats and front floorboard.

Officer Palmer then administered three standardized field sobriety tests (SFSTs): the horizontal-gaze-nystagmus test, the walk-and-turn test, and the one-leg-stand test. Mugank failed them all. Officer Palmer arrested Mugank for DWI and transported him to the police station, where Mugank was unable to provide a sufficient breath sample when he blew into the intoxilyzer machine. Officer Palmer then decided to get a search warrant for Mugank's blood.

The facts surrounding the search warrant's issuance are undisputed. Officer Palmer completed an "Affidavit for Search Warrant." The affidavit stated that the "undersigned Affiant, a peace officer under the law of Texas and being duly sworn, on oath makes the following statements and accusations." In the affidavit, Officer Palmer set out the probable-cause facts that he believed supported the issuance of a search warrant for a sample of Mugank's blood:

• Mugank's being passed out in a running car that was in drive;

• the officers' difficulty waking Mugank;

• his slurred speech;

• the smell of alcohol on his breath;

• the empty beer containers in the car;

• the results of and his failing all three SFSTs; and

• his subsequent arrest for DWI.

In the presence of notary public Joshua Sourber-who was also a jailer at the police station-Officer Palmer swore to the affidavit under oath and signed it. Sourber signed the jurat-which stated that the affidavit was "[s]ubscribed and sworn to before me on this 27[th] day of March, 2019"-and affixed his notary seal to the affidavit.

The affidavit was then faxed to Magistrate Judge Stewart Bass for review. Officer Palmer never spoke with Judge Bass. Based on the affidavit, Judge Bass determined that probable cause had been established, and he electronically signed a search warrant authorizing the blood draw. But Judge Bass did not acknowledge Officer Palmer's attestation in writing on the faxed affidavit. The signed search warrant was faxed to Officer Palmer.

Warrant in hand, Officer Palmer took Mugank to Medical City North Hills Hospital where Mugank's blood was drawn. Lab tests on Mugank's blood showed that his blood-alcohol-concentration level was .122. A grand jury indicted Mugank with DWI enhanced by two prior DWI convictions. See id. §§ 49.04, .09(b)(2). He moved to suppress the blood-alcohol evidence. At the suppression hearing, Officer Palmer testified, and the search-warrant affidavit and the search warrant were admitted into evidence. Mugank asserted that because Judge Bass did not himself place Officer Palmer under oath and did not acknowledge Officer Palmer's search-warrant affidavit in writing on the affidavit itself, the search warrant failed to satisfy the requirements set out in Article 18.01(b-1) of the Texas Code of Criminal Procedure and was thus issued unlawfully. See Tex. Code Crim. Proc. Ann. art. 18.01(b-1). Accordingly, Mugank argued, any evidence seized under the warrant should be excluded. See id. art. 38.23(a). The trial court disagreed and denied the motion.

Mugank pleaded not guilty, a jury found Mugank guilty of the offense as alleged in the indictment, and the trial court assessed his punishment at four years' incarceration. Mugank timely appealed. At Mugank's request, the trial court made written findings of fact and conclusions of law regarding its ruling on the suppression motion.

II. The Trial Court's Fact Findings and Legal Conclusions

The trial court made the following findings of fact and conclusions of law relevant to Mugank's arguments on appeal:

Findings of Fact ....

5. To obtain the warrant, Officer Palmer swore out his affidavit to a notary who was located at the police station. Officer Palmer signed his name to the bottom of the affidavit. The affidavit begins with "The undersigned Affiant being a peace officer under the laws of Texas and being duly sworn, on oath makes the following statements and accusations."

6. Officer Palmer's affidavit was then scanned and faxed to Judge Stewart Bass. Judge Bass reviewed the affidavit, electronically signed the warrant, and returned it to the Officer via electronic means. Judge Bass did not have additional questions of the officer relating to the affidavit.

7. Shortly thereafter, the warrant was executed and given back to Officer Palmer.

Conclusions of Law

1. The Texas Constitution states that a warrant requires (1) a particular description of the person or thing being searched, (2) facts establishing probable cause, and (3) that it is supported by an oath or affirmation. Tex. Const. art. I, § 9.

2. Here, the officer provided a particular description of the person, facts that established probable cause, and supported his statements by an oath via signature and swearing before a notary.

3. The Texas Government Code provides that an oath may be administered and certified by a notary public. Officer Palmer swore his oath to a notary. Tex. Gov't Code Ann. § 602.002.

4. The Court of Criminal Appeals has held that there is "no compelling reason to construe the 'sworn affidavit' contemplated by Article 18.01(b) necessarily to require that the oath always be administered in the corporal presence of the magistrate, so long as sufficient care is taken in the individual case to preserve the same or an equivalent solemnizing function to that which corporal presence accomplishes.["] See Clay v. State, 391 S.W.3d 94, 103 (Tex. Crim. App. 2013).

5. Officer Palmer provided his oath to a notary and affixed his signature to the affidavit. Accordingly, an "equivalent solemnizing function" was accomplished. Officer Palmer did not need to appear corporally in front of the magistrate to satisfy the third prong of the warrant process.

6. By signing the warrant and swearing to a notary in compliance with the Government Code, the officer satisfied all three prongs of the warrant requirement.

III. Standard of Review

We apply a bifurcated standard of review to a trial court's ruling on a motion to suppress evidence. State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019). Because the trial judge is the sole trier of fact and judge of the witnesses' credibility and the weight to be given their testimony, Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007), we defer almost totally to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on evaluating credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor, Martinez, 570 S.W.3d at 281.

When, as here, the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those findings. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). We then review the trial court's legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). Even if the trial court gave the wrong reason for its ruling, we must uphold the ruling if it is both supported by the record and correct under any applicable legal theory. Martin v. State, 620 S.W.3d 749, 759 (Tex. Crim. App. 2021); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).

IV. Analysis

In his sole point, Mugank argues that the trial court erred by denying his suppression motion because (1) Judge Bass did not place Officer Palmer under oath and (2) Judge Bass did not acknowledge Officer Palmer's search-warrant affidavit in writing on the affidavit itself as Article 18.01(b-1) requires. See Tex. Code Crim. Proc. Ann. art 18.01(b-1). Mugank contends that because...