William Martin Clark v. The State of Texas--Appeal from County Court at Law No 1 of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-93-243-CR

WILLIAM MARTIN CLARK,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law

Brazos County, Texas

Trial Court # 1263-93

O P I N I O N

William Martin Clark appeals his conviction for driving while intoxicated. // After the trial court denied Clark's motion to suppress evidence, he entered a plea of guilty pursuant to a negotiated plea agreement. The court assessed punishment at thirty days in jail, probated for one year, and a $300 fine. On appeal Clark complains that the trial court erred in denying his motion to suppress evidence obtained as the result of an illegal stop. We affirm.

In two points of error Clark contends that the arresting officer's "observations and opinions" were obtained in violation of the Fourth and Fourteenth Amendments of the United States Constitution, article I, section 9 of the Texas Constitution, and article 38.22 of the Texas Code of Criminal Procedure. Under both points Clark cites federal and state cases holding that an arresting officer is not justified in detaining a suspect based solely upon the suspect's walking or running away from an approaching officer. Clark's brief, however, provides no argument applying that line of cases to the facts of this case.

On January 17, 1993, Lance Platt, a police officer for the City of Bryan, was dispatched to a Sonic Drive-in to investigate a restaurant employee's report that a customer was intoxicated. At the hearing on the motion to suppress, Platt testified that when he arrived at the restaurant an employee pointed at Clark's vehicle. Platt parked in a drive-in stall across from Clark, who made eye contact with Platt. According to Platt, he opened the door of his patrol car, stepped out, and took a step forward. As he did, Clark started his vehicle, backed out, squealed his tires, and left the parking lot at a high rate of speed, narrowly missing a vehicle parked on the other side of the street.

Platt returned to his patrol car, activated his overhead lights, and pursued Clark. Clark stopped less than a quarter of a mile down the street and got out of his vehicle before Platt approached him again. Platt noticed that when Clark began to walk toward the patrol car he was having a hard time maintaining his balance, touching the side of his vehicle as he went. Platt also testified that he smelled the strong odor of alcohol on Clark's breath when he asked Platt what the problem was. As a result, Platt conducted field sobriety tests, which indicated that Clark was intoxicated, and arrested him for driving while intoxicated.

An officer is entitled to make a temporary investigatory detention if the officer reasonably suspects that some activity out of the ordinary has occurred, there is some suggestion to connect the person detained to the unusual activity, and there is some indication that the activity is related to a crime. // Platt specifically testified that he had reasonable suspicion that Clark was intoxicated, based on the manner in which he left the parking lot, squealing his tires and narrowly missing a parked vehicle. Furthermore, Platt described this conduct as "exhibition of acceleration," a traffic offense. //

Clark argues that, because Platt testified that he would have stopped Clark regardless of whether he squealed his tires, and because simply leaving the Sonic did not give Platt the right to detain him, the trial court abused its discretion in denying his motion to suppress. However, we must sustain the trial court's ruling, absent a showing of an abuse of discretion, on any theory of law applicable to the case. // Platt's uncontroverted testimony that Clark left the parking lot at a high rate of speed, squealing his tires, shows that Platt was justified in stopping Clark for the misdemeanor offense of exhibition of acceleration. // Because we find that the trial court did not abuse its discretion in denying Clark's motion to suppress, we overrule points of error one and two.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed March 30, 1994

Do not publish