Wheeler v. State

573 S.W.3d 437

Chase Erick WHEELER, Appellant

v.The STATE of Texas

No. 02-18-00197-CR

Court of Appeals of Texas, Fort Worth.

Delivered: March 21, 2019

ATTORNEY FOR APPELLANT: STEPHANIE M. GONZALES, ARLINGTON, TEXAS.

ATTORNEYS FOR STATE: SHAREN WILSON, CRIMINAL DISTRICT ATTORNEY; JOSEPH W. SPENCE, CHIEF OF POST CONVICTION; SHELBY J. WHITE, BRYCE BUCHMANN, ASSISTANT CRIMINAL DISTRICT ATTORNEYS FOR TARRANT COUNTY, FORT WORTH, TEXAS.

Before Gabriel, Pittman, and Bassel, JJ.

Opinion by Justice Gabriel

Appellant Chase Erick Wheeler appeals from the trial court’s denial of his pretrial motion to suppress blood-alcohol evidence seized under a warrant that was supported by an unsworn affidavit. In what Wheeler and the State both declare is an issue of first impression, we are asked to decide whether the good-faith exception to the statutory exclusionary rule allows admission of this evidence even though it was obtained in violation of the Texas Constitution’s oath requirement. Under the singular facts of this case, we conclude that it does not.

I. BACKGROUND

A. THE ARREST

The facts surrounding Wheeler’s arrest and the issuance of the search warrant are largely undisputed. On July 9, 2016, Officer Tyler Bonner, who at the time had worked for the Pantego Police Department (Pantego) for one year and two months,¹ responded to a report that a driver was asleep behind the wheel of an idling car in the drive-through lane of a fast-food restaurant. Bonner arrived, woke the driver up, and noted that he appeared intoxicated. The driver, identified as Wheeler, refused to perform any field-sobriety tests but told Bonner that he had "consumed 4 beers." Bonner arrested Wheeler and drove him to the police department to get a search warrant for Wheeler’s blood after Wheeler refused to supply a sample.

B. THE SEARCH WARRANT

Pantego routinely prepares premade packets that include several fill-in-the-blank forms: an affidavit for a search warrant, a search warrant, an order to execute the warrant, and a return. The affidavit form includes a recital that the "undersigned Affiant, a peace officer ..., and after first being duly sworn, on oath makes the following statements and accusations." Bonner filled out the affidavit form, supplying the probable-cause facts that he believed supported the issuance of a search warrant for a compelled sample of Wheeler’s blood. These facts included that Wheeler had a moderate odor of alcohol and that his speech was slurred and confused. Bonner signed the affidavit, affirming that it was sworn by his oath, and dated the jurat on the affidavit. Bonner then gave the packet to the dispatcher who called the magistrate and electronically sent the packet to her.

The magistrate, Sara Jane Del Carmen, knew that the arrangement of Pantego’s office space dictated that the requesting officer physically hand the packet documents to the dispatcher who would then electronically forward the packet. When Del Carmen received Bonner’s packet, she reviewed the affidavit, determined that probable cause had been established, and electronically signed the affidavit’s dated jurat and the warrant. The jurat provided: "Subscribed and sworn to before me on this 9 day of July, 20 16, by an official authorized to administer and authorize this oath pursuant to TEX. GOV'T CODE § 602.002." Del Carmen did not notice that Bonner’s affidavit, unlike other affidavits she had seen from Pantego officers, did not have another officer’s badge number or a notary’s stamp on it. Del Carmen admitted that she had signed the jurat in error because she had "missed" that Bonner’s affidavit was not sworn. But at the time, Del Carmen believed probable cause for a search warrant had been established and did not see any defects in Bonner’s affidavit. She electronically signed the warrant, authorizing officers to take a sample of Wheeler’s blood, and electronically returned the packet to the dispatcher. The warrant included a recitation that the affiant—Bonner—"did heretofore this day subscribe and swear to said affidavit before me"—Del Carmen.

The dispatcher informed Bonner that the warrant had been signed. The warrant was executed, and Wheeler’s blood draw occurred approximately one hour after his arrest. See Tex. Code Crim. Proc. Ann. art. 18.06. On Pantego’s blood-room-procedure form, Bonner did not indicate whether the blood draw was pursuant to Wheeler’s consent or a search warrant. He later did not remember why he did not circle "Search Warrant" on that form. Bonner signed the return as the affiant, but Del Carmen never signed it.² See id. art. 18.10. Wheeler’s blood-alcohol content was 0.14.

C. THE MOTION TO SUPPRESS AND APPEAL

Wheeler was charged by information with the class B misdemeanor of driving while intoxicated. See Tex. Penal Code Ann. § 49.04(a) – (b). Before trial, he filed a motion to suppress the seized blood-alcohol evidence, arguing that the warrant was invalid because it was based on an unsworn affidavit and therefore violated the United States and Texas Constitutions.³

At the trial court’s December 19, 2017 evidentiary hearing, Bonner testified that he did not fabricate the probable-cause facts included in his affidavit. Although he had been trained at the police academy about the oath requirement for warrant affidavits, Pantego did not reinforce that he needed an oath or its equivalent administered before submitting the affidavit. In fact, he stated that he had never before sworn to a probable-cause affidavit in the fourteen months he was a Pantego officer and that he had previously applied for search warrants from Del Carmen. At the suppression hearing, Bonner admitted that he was aware of the constitutional oath requirement for search-warrant affidavits based on his prior academy training.⁴ When Bonner was asked if an oath had been administered or if someone watched him sign the affidavit for Wheeler’s warrant, Bonner stated, "Not that I remember." Bonner admitted that he never communicated directly with Del Carmen that night. But he testified that he followed what he believed to be Pantego’s standard procedure in obtaining the search warrant. Bonner was familiar with oaths and understood that the probable-cause facts in his affidavit were never properly sworn. Bonner could not remember if he saw the signed search warrant, but he was not subjectively aware of any defects in his affidavit at the time and he subjectively believed he had a valid search warrant.

Del Carmen testified that she previously had seen many warrant affidavits from Pantego officers and that they ordinarily were sworn either before another officer or before a notary before being sent to her by the dispatcher. She did not notice that Bonner’s affidavit was not sworn and she did not administer an oath to Bonner that night. Based on her knowledge of Pantego procedure regarding officers' handing the packet to the dispatcher to forward to her, Del Carmen believed that an attestation to the affidavit could have occurred. But she testified that based on the packet she received regarding Wheeler’s warrant, there was no indication of an attestation. Del Carmen agreed that Bonner’s affidavit provided no verified facts supplying probable cause for the search warrant.

The dispatcher did not testify at the hearing and was no longer employed by Pantego. The trial court took judicial notice that the dispatcher was terminated for "the creation of fictitious, racial profiling codes."

The trial court denied Wheeler’s motion on January 9, 2018. In its carefully crafted order, the trial court framed the issue: "Is the good faith exception provision in Article 38.23(b) Code of Criminal Procedure applicable under these facts so that the exclusionary rule contained in Article 38.23(a) is inapplicable?" The trial court, after paying "particular attention" to the plain language of the good-faith exception in article 38.23(b), found that the unsworn affidavit was a procedural mistake, not a substantive error, that fell within the good-faith exception to article 38.23(a) ’s exclusionary rule. See Tex. Code Crim. Proc. Ann. art. 38.23.

After pleading guilty under a plea-bargain agreement, Wheeler now appeals the trial court’s denial of his pretrial motion to suppress. See id. art. 44.02. The trial court certified that Wheeler had the right to appeal from the trial court’s suppression ruling notwithstanding that his guilty plea was the result of a plea bargain. See Tex. R. App. P. 25.2(a)(2)(A), (d). Wheeler now argues that because Bonner’s affidavit was not sworn, the evidence seized under the subsequently issued warrant should have been suppressed because it violated the affidavit and warrant requirements found in the Texas Constitution,⁵ which could not be cured by the exclusionary-rule exception found in the code of criminal procedure. See State v. Villarreal , 475 S.W.3d 784, 811–12 (Tex. Crim. App. 2014) (5-4 decision) (recognizing legislature cannot create "new exception to the warrant requirement" contrary to constitutional, guaranteed rights); Ex parte Ainsworth , 532 S.W.2d 640, 641 (Tex. Crim. App. 1976) (recognizing legislature cannot alter the scope of constitutional protections by statute). See generally Wilson v. State , 311 S.W.3d 452, 458 (Tex. Crim. App. 2010) (recognizing Texas’s exclusionary rule provides broader protections than does federal, judicially created rule); State v. Huddleston , 387 S.W.3d 33, 40 n.11 (Tex. App.—Texarkana 2012, pet. ref'd) (noting Texas’s statutory good-faith exception more limited than federal, nonstatutory counterpart).

II. STANDARD OF REVIEW

In general, when tasked with the review of a trial court’s suppression ruling, we use a bifurcated standard of review—giving almost total deference to historical-fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor and reviewing de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador v. State , 221 S.W.3d 666, 673 (Tex....