Francis Earl Bullock, Jr. v. State of Texas--Appeal from 91st District Court of Eastland County

11th Court of Appeals

Eastland, Texas

Opinion

Francis Earl Bullock, Jr.

Appellant

Vs. No. 11-01-00189-CR B Appeal from Eastland County

State of Texas

Appellee

Appellant pleaded guilty to the third degree felony offense of driving while intoxicated, subsequent offense; and the trial court assessed appellant=s punishment at confinement for 6 years and a fine of $1,000. The trial court suspended the imposition of the sentence and placed appellant on community supervision for 6 years. Appellant appeals the trial court=s denial of his pretrial motion to suppress evidence. We affirm.

Tim Pitts, a police officer employed by the Eastland Police Department, testified that he arrested appellant for driving while intoxicated. The trial court found that Officer Pitts first observed appellant around 1:00 a.m. badly weaving within appellant=s lane of traffic. Appellant was jerking the wheel as if to avoid hitting something. Next, Officer Pitts observed appellant constantly hitting his brakes and traveling at a slow rate of speed. The officer observed that appellant barely missed hitting a well-delineated curb. Officer Pitts believed that appellant=s driving was erratic. Officer Pitts followed appellant for several blocks before stopping appellant. The officer testified that, at that time, he had a reasonable suspicion that the driver was intoxicated. The officer based his opinion on his having many years of experience with prior driving while intoxicated arrests.

We give almost total deference to a trial court=s determination of historical facts that find support in the record, especially when the trial court=s fact findings are based on an evaluation of credibility and demeanor. We review de novo the trial court=s application of the law to the facts. Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997). Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1 (1968). To justify the intrusion, the officer must have specific articulable facts which, in light of his experience and personal knowledge, would reasonably warrant the intrusion on the freedom of the citizen detained for further investigation. Johnson v. State, 658 S.W.2d 623, 626 (Tex.Cr.App.1983). The officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime. Davis v. State, 947 S.W.2d 240, 244 (Tex.Cr.App.1997).

Officer Pitts testified that, based on his training and experience, he had a reasonable suspicion that the driver was intoxicated. All of the factors that Officer Pitts observed (the weaving, the slow speed, the jerking, the constant braking, and the near collision with the curb) were indications that the driver was intoxicated. While none of the observed conduct was criminal, innocent acts can give rise to a reasonable suspicion under proper circumstances. Woods v. State, 956 S.W.2d 33, 38 (Tex.Cr.App.1997).

The cases cited by appellant are factually distinguishable. State v. Arriaga, 5 S.W.3d 804 (Tex.App. - San Antonio 1999, pet=n ref=d), and State v. Tarvin, 972 S.W.2d 910 (Tex.App. - Waco 1998, pet=n ref=d), involved drivers who were stopped solely on the basis of drifting or weaving within a single lane of traffic, an action the officers erroneously believed to be a moving violation. The officers did not testify that they suspected the drivers were intoxicated. In Hernandez v. State, 983 S.W.2d 867, 870 (Tex.App. - Austin 1998, pet=n ref=d), the court held that crossing a lane marker a single time did not support a reasonable suspicion that the driver was intoxicated. The officers involved in Ehrhart v. State, 9 S.W.3d 929 (Tex.App. - Beaumont 2000, no pet=n), did not testify that they suspected the defendant was intoxicated.

Officer Pitts identified several specific articulable facts that created in his mind a reasonable suspicion that appellant=s driving was out of the ordinary and suggested that appellant was intoxicated. Based on a review of the totality of the circumstances, the trial court did not err in denying appellant=s motion to suppress the evidence.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

May 23, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Wright, J., and

McCall, J., and McCloud, S.J.[1]

[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.