NO. 07-01-0380-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C FEBRUARY

8, 2002

______________________________ SANDRA D. BURNS,

Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE CO UNTY COURT AT LAW NO. 2 FOR LUB BOCK COUNT Y;

NO. 2000-471243; HON. DRUE FARMER, PRESIDING

_______________________________ Before QUINN, REAVIS and JOHNSON, JJ. Appellant, Sandra D. Burns, ap peal s from a judgment u nder whic h she was convicted of operating a motor vehicl e in a public place whi le intoxi cat ed. Thro ugh two points of error, she contends tha t the trial court erred in refusin g to supp ress evidence obtained via an al legedly improper stop and admitt ing i nto evidence the results of her intox ily zer test. We affirm.2 Point One –

Refusal to

Suppress Evid

ence Init ially, appella nt cont ends th at the t rial court erred in d enying h er motion to suppress evidence obtained by the officer after he stopp ed h er. The evi dence was purportedlysubject tosuppression because the officer l acked probable cause to stop her for any traffic offense. We overrule the contention. Standard of Revi

ew The applicable standard ofreview was described by thiscourt in S tate v. Wallett, 31 S.W.3d 329 (Tex. App.–Amarill o 2000, no pet.). We cite the litigants tosame. Next, a law enforcement off icer need not have probable cause to stop an individual. He need only hav

e reasonable sus picion that criminal activ ity is afoot. Held v. State , 948 S.W.2d 45, 51 (Tex. App.–Houston [14 th Dist.] 1997, p et. ref’d). This enables him to temporarilydetain (for investigatory purposes) those engaged in the activ ities creat ing the reasonable suspicion. Furtherm ore, in determining if such suspicion existed, we assess whether a reaso nable person in the position of theofficer making t he stop, wi th the trainin g, experience, and knowledge of the of ficer, could suspect that the vehi cle or person to be stopped has been or is connected to criminal a ctivity

. See United States v. Cortez, 449 U.S. 411, 421-22, 101 S. Ct. 690, 697, 66 L.Ed.2d 6 21 (1981); Martinez v. State , No. 0 7-01-0194 (Tex. App.–Amarillo January 29, 2002 ). And, because the perspect ive thro ug h which we view the situa tion is tha t ofthe re ason able off icer, the s ubje ctive thoughts and intentionsof the actual officer mak ing the s top are not determinati ve. Whren v. United States , 517 U.S. 806, 813, 116 S.Ct. 1769, 17 74, 135 L.Ed.2d 89 ( 1996), Martinez v. State ,1 Again, the t est focuses upon t he con duct and d ed ucti ons of a r easonabl e offi cer under the cir cumstances. Given t his, we rej ect appel lant ’s sugge sti on that since the of

fi cer atbar st opped appel lant be ca us e h e th ou gh t he ha d p ro ba ble ca us e to be liev e s he co m m itted a tr af fic off en se , the Sta te c ou ld o nly ju stify the stop on that basis. Quite the contrary, i f the circum stances p erm it t he court to de duc e tha t a re as on ab le offi cer coul d have j usti fi ed the st op based upon t he exist ence of ci rcumstances creat ing re as on ab le su sp icio n th at c rim ina l ac tivity w as afo ot, t ha t is a ll the Stat e need show, ir respect ive of t he subjective m otivati ons of the actua l offi cer. 3 supra
. 1 Application Here, the record contains evi dence illust rating that appellant trav

eled down a public street at 4:40 a.m., made a w ide turn, almos t hit a curb on which stood t he officer wh o sub seque ntlystopped appellant, an d proceeded to drive down four city blocks while weavin g from her lane thr ee times. Weav ing alone has been held sufficie nt basis to reasonably suspect one may be intoxi cated and to just ify an investigatory stop. Held v. State , 948 S.W.2d at 51 . Couple this with evidence of a t urn whic h almost resul ted in the vehi cle striking a curb and a pedestrian and we cannot but concl ude that a reason abl e officer wit nessi ng theevent s wou ld have had l egit ima te gro unds to undertake an investig atory stop of appellant.

Point Two

– Admit

ting the Results of

the Breat

h Test Appellant

next complai ns of the trial court’s admis sion into ev idence of the resul ts of her intoxilyzer tests. Two tests were taken, and the results of same reveal ed that she had an alcohol concentration of.168 and .164, respectively. The adm issi on of t hese resultswas all egedly error because th ey wer e irrelevant, as that

term was defined under Texas Rule of Evi dence 401. Furthermore, assu ming they we re rel evan t, th eir pr oba tive value was substantially outweig hed by the dang er of unfair prejud ice; so, they were purportedlysubject toexclusi on under Texas R ule of Evidence403. We overrule the point.2 Retrogr ade extr apolat ion i nvol ves the computati on back in ti me of the al cohol co ncentr ati on found

in one’s body ba sed upon t he speed wi th whi ch the al cohol i s eli minated from the body

. Ma ta v. S tate , 46 S.W .3d 90 2, 9 08 -9 09 (T ex . C rim . Ap p. 2 00 1) . Fu rth er m or e, th e s pe ed wit h w hich al cohol i s eli minated depends upon a myri ad of fa ctors, as di scussed in Ma ta

. 4 Standard of Revi

ew The standard of review applicable toclaims impl icating the admission of evidence is discussed i n Montgomery v. State , 8 1 0 S

. W. 2 d 3 7 2 , 3 7 8
- 7 9 ( Tex . C r i m
. A p p
. 1 9 9 0 )

. We refer the liti gants to it. Application of Standard To the extent th at appellant bel ieves the re sults we re irrel evant, we note that the legislature effectively

resolved that d ispu te. Via §724.064 of the Texas Transpor tation Code, it declared that “evi dence of the alcohol concentration .

. . as sh own by analy sis of
a specimen of the pers on ’s blood, bre ath, or urine or any other bodily s ubstance . . . is admissible ” in apro secu tion ari sin g fr om ch apte r 49of the Penal Code. T EX
. T RANSP
. C ODE A NN
. §724.064 (Vernon 1999). (Emphasis added ). Needless to say, tr ying appellant for operating a motor vehicle in a public place while intoxicated is prosec ution arisi ng under Chapter 49 of the Penal Code. T E X
. P ENAL C O DE A NN
. §49.04 (Vernon Su pp. 2002)(appearing under chapter 49 of th e Texas P enal Code an d criminali zing theact of operating a motor vehicle in a public place while i ntoxicated) . Furthermor e, the results

or the intoxi lyzer

tes ts h ere purp ortedly

qua ntif y the alcohol concentration f ound in appellant’s bod y. Thus, t he leg islat ure ma de th ose results relevant pu rsuant to §724.064 of the Transportation C ode. To the exte nt th at ap pell ant i nvo kes Texas R ule of Ev idence 403, we read her argument

to implicate the concept of retr ograde ex

trapolation. 2 Thatis, shebelieves that5

the State tendered theintoxil yzer results toillustra te that she had an al cohol concentr ation of .08 or more w hile driv ing. Yet , because the test s were not

administered un til one and one-half hour s after s he ce ased dri vi ng, evi dence of the rate at which s he eliminated alcoh ol from h er bo dy ( i.e. retrogr ade extrapol ation) wa s necessary to place the tests resultsin context

and render them meaningf ul. With out that evidence (which the State did notpresent), thejury w

as allegedl y free to v iew the r esults and si mply concl ude that since her alcohol conce ntration exceeded .08 at the ti me of the test, i t did so when the officer stopped her. And, bein g allowed t o so speculate created a substan tial danger of unfair prejudice. Assumin g arguen do th at thi s arg ument may have merit

under some circumstances, it does not given those bef ore us. The officer who arrested appellant for “ driving while i ntoxicated”had opportunity to witness certain cond u ct and circumstances bef ore making the arrest. That condu ct consisted of appe llant 1) making a wide turn on a public str eet and “almost colliding with the curb wher

e” the officer

stood, 2) weaving t hree times as s he drove dow n a four block stretch of r

oad, 3) having “ a strong odor of an alcoholic beverage on her breath,”4) appearing “a littl e disoriented, ” 5) appeari ng “a lit tle confused,” and 6) f ailing to satisfactorily perform the va rious sobri ety tests administered to her. The sobri ety tests consisted of her attempting to recite her A, B, C’s i n a way directed by the officer, stand on
one foo t while coun ting t o 30, touc h her nose with he r fin ger, a nd wa lk heel to toein a straight line for ninepaces, turn ar ound, and repeat the task . Her inabi lity to perform the tests indicated that she suffered from impaired mental and physical faculties. And, when her inability to perform the tests is coupled to the ev idence that her breath smelled of alcohol, one could rationally conclude, beyond re asonabl e doubt, that appell ant was3 Accordi ng to s tatu te, t he Sta te m ay p ro ve on e to be into xic ated by 1) establ ishi ng that the person did not have the nor mal use of mental or phy sical facul ti es by reason of t he int roduct ion of alcoho l or

any o ther substance int o the bod y or 2) havi ng an al cohol co nc entr ati on of . 08 or m ore. T EX
. P ENAL C ODE A NN
. §49.01(2) (Vern on Sup p. 2002).

4 In ho ld in g as we do, we nee d not add ress t he Stat e’s proposit ion t hat §724. 064 of t he Texas Transport ati on Code permits t he admission of i ntoxi lyzer result s ir respect ive of t he li mitati ons expressed in R ule 403. We do note, howev er, that Rul e 403 has been appl ied i n sit uati ons wherei n the l egisl atur e has pr ev iou sly dec lared partic ular e viden ce a dm issible. Se e e.g ., Mc Co y v. S tate , 10 S. W .3d 50 ( Tex. Ap p.–A m arillo 199 9, no pet. ) (inv olving a rt. 38.3 7 of th e T exa s C ode of C rim inal Pro ced ure)

. 6 operating a motor vehicle in a public place whi le intoxi cated. 3 Consequentl y, we hold that the trial court’s decision to reject appellant’s attem pt to exclude the evidence via Rule 403 fell within the zone of reaso nable disagr eement and e vi nced an exerc ise of legit imate discretion. 4 Accordingl y, the judg ment is affirmed.

Brian Quinn Justice Do not publish

.