Venancio Ortiz v. The State of Texas--Appeal from County Court at Law No. 6 of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-277-CR
VENANCIO ORTIZ,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
NO. 378,158, HONORABLE DAVID PURYEAR, JUDGE PRESIDING

PER CURIAM

After hearing appellant's plea of no contest, the county court at law found him guilty of driving while intoxicated, first offense. Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (West Supp. 1993). Pursuant to a plea bargain agreement, the court assessed punishment at incarceration for 120 days and a $2000 fine, probated. In two points of error, appellant urges that the court erred by overruling his pretrial motion to suppress evidence. See Lemmons v. State, 818 S.W.2d 58 (Tex. Crim. App. 1991).

On the night of July 27, 1992, Austin police officer Katrina Pruitt was on patrol when her attention was drawn to an automobile driven by appellant. Appellant was driving on East Seventh Street at an unusually slow speed, twenty miles-per-hour in a thirty-five miles-per-hour zone. The officer began to follow appellant's car in her patrol vehicle, noticing as she did that one of his tail lights was not functioning. Pruitt ran a check of appellant's license plate number. The computer indicated that the vehicle had last been registered for 1992, but the car displayed a 1993 registration sticker.

After following appellant for approximately fourteen blocks, Pruitt stopped appellant on the frontage road of Interstate 35. When she approached appellant, the officer smelled the strong odor of an alcoholic beverage and saw that his eyes were glassy and red. After appellant got out of his car, Pruitt administered several field sobriety tests. Based on his performance on these tests and her other observations, the officer arrested appellant for driving while intoxicated.

In his first point of error, appellant contends the stop violated the Fourth Amendment of the United States Constitution because the officer did not have a reasonable suspicion that appellant was engaged in criminal activity. Appellant notes that when Pruitt was asked why she stopped appellant's car, she replied, "The reason I stopped him is because of his driving. The reason I pulled up behind him was because of his speed, and then I ran the plates and it didn't correlate so I started following him and his driving was --." Asked what was wrong with appellant's speed, the officer stated, "It wasn't -- How do you explain it? It's one of the things that you look at when you are looking at a vehicle to see if it's an intoxicated vehicle. It's not driving normally." Appellant argues that this testimony demonstrates that the officer stopped him on the basis of an inarticulate hunch that he might be intoxicated.

A police officer may detain a person for investigation if, based on the totality of the circumstances, the officer has a particularized and objective basis for suspecting the person detained of criminal activity. United States v. Cortez, 449 U.S. 411 (1981). To justify such a detention, a police officer must have specific articulable facts which, in light of the officer's experience and personal knowledge, together with other inferences from those facts, reasonably warrant the intrusion on the freedom of the person detained. Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983).

Contrary to appellant's argument under this point of error, we do not believe that Pruitt's testimony, taken as a whole, establishes that she stopped appellant solely "because of his driving." Further, we do not agree with appellant's assertion that when determining the legality of a temporary detention on less than probable cause, the appellate court must consider only the officer's subjective, stated reason for the stop. Cortez teaches that the court must consider the totality of the circumstances, and must determine if there is an objective basis for the stop. Before stopping appellant, Pruitt observed at least one equipment violation, the broken tail light. She also knew that there was a discrepancy between the registration tab displayed on appellant's car and the computer records. We conclude that these facts reasonably warranted the officer's stop of appellant for further investigation. Point of error one is overruled.

In his second point of error, appellant argues that the stop cannot be upheld on the basis of the observed equipment violation and the registration discrepancy because, under Article I, Section 9 of the Texas Constitution, these facts were merely a pretext by which Pruitt stopped appellant to investigate her suspicion that he was intoxicated. See Hamilton v. State, 831 S.W.2d 326, 330 (Tex. Crim. App. 1992) (whether pretext arrest doctrine survives under Texas Constitution remains open question). We decline to address this contention because it was not preserved for review.

In his motion to suppress evidence, appellant urged, among other things, that the stop was a pretext to secure evidence of an offense for which the officer did not have probable cause to arrest. Appellant did not, however, urge this contention at the hearing on the motion. To the contrary, counsel for appellant stated, "I'd like to change my motion to suppress and argue that there was insufficient grounds to detain the defendant in the first place. . . . Knowing that the officer followed my client for several blocks and based on her testimony, I don't believe that there was sufficient evidence to actually stop him and detain him." Clearly, appellant waived any contention that the stop was an unlawful pretext to investigate appellant's possible intoxication. The second point of error is overruled.

The judgment of conviction is affirmed.

 

[Before Chief Justice Carroll, Justices Aboussie and B. A. Smith]

Affirmed

Filed: September 22, 1993

[Do Not Publish]