Appellant does not argue that the state con s t i t u t i o n af fords him g reater prote ction under the 1 circ umstances than doe s the fede ral c onstitut ion. 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00078- CR

Do nal d Ra y G unn, A ppe lla nt

v. The State of Texas, App ellee

F ROM THE COUNTY COURT AT LAW NO. 2 OF WILLI AMSO N COUNTY NO. 02-3 485- 2, HO NORAB LE TIMO THY L. WRIGHT, JUDGE P RESIDING

M E M O R

A N D U M O P I N I O N
At his bench trial for driving while intox icated, a ppellant Donald Ray

Gunn objecte d to any testimony

reg arding his a

ppear ance and conduc t after being stopped by

the police, including the re sults of his int o x i l y z er t es t , on the g round that the e vidence was the f ruit of an unlaw ful detention. The obje ction was ove rruled, a nd appellant wa s adjudg ed g u i l t y an d s entenc ed to 180 day s i n j ai l and a $2000 fine, probated. The sole issue on a ppeal is whe ther the stop violated the Four th Amendment and a

rticle I , section 9. U.S. Const. amend. I V; Tex. Const. art. I , § 9. We find 1 that the stop was lawf

ul and af firm the convic tion. On the nig ht in question, appellant had an alterc ation with the ca shier and ma nag er of a Round Rock fa st-food restaur ant. Appellant, who smelled of alcoholic be vera g e and a

ppear ed2

to be intox icated, insisted that he ha d been shor t-cha ng ed by the ca s h i er . The mana g er took appellant to her

office , counted the c hang e dra wer , and expla i n ed to him that there wa s no discrepa ncy . Appellant stormed out of the restau ra n t and drove awa y afte r making sever al threa tening g estures towa rd the mana g er. Th e ma n a g e r c a ll e d th e p o li c e a n d r e p o rte d w h a t h a d h a p p e n e d
. She g ave the dispatcher

appellant’ s phy sical desc ription and the desc ript i o n an d l i cense plate number of the pickup truck he was driving
. Three police office rs in separ ate units wer e in the ar ea a nd responde d to the repor

ted disturbance
. Meanw hile, appellant r eturne d to the restaur ant, drove around it twice , then stopped and beg an to pound on the drive-thr oug h service window. The ma nag er ma de anothe r
c a ll t o th e po lic e , a

nd thi s in fo rm a tio n w a s a lso dis pa tc he d to the of fi c e rs . Offic er Jeff Ec kard was t he first office r t o arr ive at the restaura nt. He sawappellant’ s pic ku p p ull inga wa

y fr om the se rv ic e wi nd ow a nd re c og nize d th a t bo th t he tr uc k a nd the dr ive r f

it the desc ription he h ad b ee n gi v en by the dispatche r. He also saw a person, late r identified a s the manag er, w ear ing w hat appe are d to be a r estaura nt unif o rm . S h e wa s waiving fra ntically and pointing at the de parting truck, whic h was the only vehicle in the drivewa

y . Ecka rd drove up to the
rea r of a ppellant’s truc k as it waited a t a re d light and initiated the stop. We mus t de c ide if

, und e r t he c ir c ums tanc e s, Of

fi c e r E c ka

rd ha d a re a so na ble ba sis for suspec ting that a

ppellant was or

had bee n eng ag ed in cr iminal activity
. Se e Te rry v . O hio , 392 U. S. 1 , 3 0 ( 19 68 ) ( g ro un ds fo r t e mpo ra ry inv e sti g a tiv e de te nti on ); Da v is v . S tat e , 829 S.W .2d 218, 22 1 ( Te x. Cr im. Ap p. 19 92 ) ( same ); an d s e e Gu zm an v . S tat e , 955 S.W .2d 85, 89 (Tex. Crim. App. 1997) (standa

rd of r eview) . Appellant ar g ues that he did not, citing the offic er’ s testimony that he3

stopped appe llant “base d on what my observations of something may have g one on inside the
re sta ur a nt. ” We a g re e wi th t

he Sta te that this one se nte nc e ta ke n out of c on te xt doe s n ot a c c ur a te ly ref lect the f acts a nd circ umstances known to the of fice r. Offic er Ec kard kne w that a disturbance had bee n repor ted at the r estaura

nt involving a man who a

ppear ed to be intoxi cate d. He ha d a desc ription of the man and of the vehicle he wa s driving , and he kne w that the man ha d returne d to the restaur ant and initiated a se cond disturbanc e at the ser vice window. When the officer arrive d at t he restaura nt moments after

rec eiving the sec ond
re po rt , h e saw a pic ku

p tru c k dri vin g a wa

y fr om the wi nd ow . T his tr uc k a nd its dr ive r, a

pp e lla nt, matched the descr ipti o n s h e h ad bee n g iven. An obviously excited woman who appe are d to be a
re sta ur a nt e mpl oy e e wa s wa ivi ng a t the of fi c e r a nd po int ing a t the de pa rt ing pic ku

p tr uc k. We h old that these fa cts rea sonably war rante d appellant’ s detention for f urther inve stiga tion. The e vidence supporting a ppellant’s convic tion for driving while intox icated w as not the fruit of a

n unlawful de tention. The judg ment of convic tion is affirmed.

__________________________________________ J an P. Patterson, J ustice Be fore Chief J ustice L aw, Justi ces Patter son and Pury ear Affir med Filed: Jul y

6, 2005 Do No t Pu

bli sh