Glover Otho Amacker v. The State of Texas--Appeal from County Court at Law No. 1 of Comal County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-070-CR
GLOVER OTHO AMACKER,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE COUNTY COURT AT LAW OF COMAL COUNTY,
NO. 91CR-270, HONORABLE FRED CLARK, JUDGE PRESIDING

PER CURIAM

After appellant pleaded no contest, the county court at law found him guilty of driving while intoxicated and assessed punishment at incarceration for 180 days and a $750 fine, probated. Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (West Supp. 1992). In his only point of error, appellant contends the court erred by overruling his motion to suppress evidence. See Lemmons v. State, 818 S.W.2d 58 (Tex. Crim. App. 1991).

On the night of August 22, 1990, New Braunfels police officer Montgomery Kama stopped at a convenience store on Interstate 35 during the course of his routine patrol. The store attendant told him that the customer who had just driven away had exhibited unusual behavior. "She said she had to show the subject how to turn the pump on and -- the gas pump, and she watched him, his actions. She just said he was acting a little strange." The attendant also stated that she thought the customer might be intoxicated.

The officer, who had seen the car in question as it left the convenience store, pursued the vehicle to see if the driver had a medical problem or "if there was something wrong." As he approached the subject car, Kama saw it swerve from the shoulder of the highway to the center line several times. Kama testified that he thought the driver might be having steering problems and decided to stop the car to "check on the driver." Appellant was the driver of the vehicle. As Kama spoke to him, he noticed that appellant's eyes were bloodshot, his speech was slurred, and he had the odor of alcoholic beverage on his breath. The officer asked appellant to exit the automobile, and saw that appellant staggered when he walked. After appellant failed field sobriety tests, he was arrested.

An officer may stop and temporarily detain a motorist if he has a reasonable suspicion, based on articulable facts, that criminal conduct is occurring. Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992). In Viveros, the court held that a stop was unlawful where the officer's only reason for stopping the defendant was that he had slowed his vehicle after passing the officer's patrol car. Appellant urges that, as in Viveros, the officer in this cause did not have sufficient facts to give rise to a reasonable suspicion of criminal activity. We disagree.

Kama was told by the convenience store clerk that appellant's behavior was unusual and that he might be intoxicated. The officer witnessed appellant's vehicle swerve from the shoulder to the center of the highway several times. We conclude that these facts gave the officer a reasonable basis for suspecting that appellant was driving while intoxicated and warranted the stop and detention for further investigation. Under the circumstances, we need not decide whether, as the State argues, the officer's action was justified under a public safety or emergency doctrine. See McDonald v. State, 759 S.W.2d 784 (Tex. App.--Fort Worth 1988, no pet.); see also Garcia v. State, 827 S.W.2d 937, 943 (Tex. Crim. App. 1992) (validity of stop determined solely by objective facts). The point of error is overruled.

The judgment of conviction is affirmed.

 

[Before Chief Justice Carroll, Justices Jones and Kidd]

Affirmed

Filed: October 28, 1992

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