Phillip Jerome List v. State of Texas--Appeal from County Criminal Court at Law No 14 of Harris County

No. 04-00-00406-CR

Phillip Jerome LIST,

Appellant

v.

STATE of Texas,

Appellee

From the County Criminal Court at Law No. 14, Harris County, Texas

Trial Court No. 9956653

Honorable Michael R. Fields, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: January 10, 2001

AFFIRMED

Appellant Phillip Jerome List was charged with driving while intoxicated. He filed a motion to suppress evidence of intoxication which was denied by the trial court. Pursuant to a plea agreement, List pled no contest. The court sentenced him to 180 days in the Harris County Jail probated for two years, a $500.00 fine, and three days in the Harris County Jail as a condition of probation. On appeal, List complains the trial court erred in denying his motion to suppress. We affirm the judgment of the trial court.

In the early morning hours of December 31, 1999, Harris County Constable Corporal Daniel Zientek stopped List after following him for approximately half a mile. Officer Zientek conducted several field sobriety tests, which List failed. List was arrested for driving while intoxicated. Prior to trial, List moved to suppress evidence of intoxication, alleging the initial stop of his vehicle was illegal because it was not based on reasonable suspicion. The trial judge denied the motion.

A trial court's ruling on a motion to suppress is reviewed under an abuse of discretion standard of review. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). We afford great deference to the trial court's findings on issues of historical fact and credibility. State v. Ross, No. 1618-99, 2000 WL 1749834, at *2 (Tex. Crim. App. November 29, 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When the historical facts are undisputed, we review de novo to determine whether the arresting officer had reasonable suspicion to justify the initial stop. See Oles, 993 S.W.2d at 106; Guzman, 955 S.W.2d at 89.

In determining whether reasonable suspicion existed for the initial stop, we look at the totality of the circumstances. Loesch v. State, 958 S.W.2d 830, 832 (Tex. Crim. App. 1997); Davis v. State, 989 S.W.2d 859, 863 (Tex. App.-Austin 1999, pet. ref'd). An officer must be able to state specific, articulable facts upon which to base reasonable suspicion that "some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime." Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989). Reasonable suspicion must be based on the facts and reasonable inferences considered in light of the officer's experience and personal knowledge. Comer v. State, 754 S.W.2d 656, 657 (Tex. Crim. App. 1986).

Officer Zientek testified he observed List weave out of his lane to the right, at which time the officer activated his video camera and observed List for an additional half mile. List then drifted out of the lane to the left. Officer Zientek testified he stopped List because he suspected List was intoxicated. Officer Zientek cited the holiday season, the late night hour, the location near several bars and nightclubs, along with List's driving, as factors for his suspicion. In addition, Officer Zientek stated he was concerned with the safety of other drivers, himself, and List because List was driving in an unsafe manner. See Loesch, 958 S.W.2d at 831-32 (character of area and driver's behavior must be considered in combination).

Based on the totality of the circumstances, there was sufficient reasonable suspicion to justify Officer Zientek's initial stop of List; therefore, the trial court did not abuse its discretion in denying

the motion to suppress. We overrule List's point of error and affirm the judgment of the trial court.

PAUL W. GREEN

JUSTICE

DO NOT PUBLISH