Anderson Whittington v. State ( 1992 )

Whittington v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-91-503-CR





ANDERSON WHITTINGTON,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY

HONORABLE DAVID PURYEAR, JUDGE

PER CURIAM

Following a plea of nolo contendere, the trial court found appellant guilty of driving while intoxicated. Tex. Rev. Civ. Stat. Ann. art. 6701l-1(b) (Supp. 1992). The trial court assessed punishment at confinement for ninety days and a fine of $1000.00. The court then suspended imposition of sentence, ordering that appellant's jail term be probated for two years and that $600.00 of his fine be probated.

By a single point of error, appellant contends that the trial court erred in refusing to suppress evidence obtained during an investigative detention. Appellant argues that the detention was based on insufficient specific, articulable facts. U.S. Const. amend. IV; Tex. Const. art. I, § 9; Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983).

While on patrol at 5:05 a.m., Police Officer Ritzenhaler received a call from the dispatcher. The dispatcher relayed the complainant's report that appellant, her ex-boyfriend, was doing something to the windows of her car.

Police Officer Carpenter, who was also on call, informed Ritzenhaler that the complainant had called earlier that night to report appellant's pouring something down her gas tank. Appellant left before Carpenter arrived, but the complainant described appellant's car to him as an older, lavender Pontiac LeMans. The complainant's earlier call was made between midnight and 5:00 a.m.

Ritzenhaler was five houses away from the complainant's house when he spotted a lavender LeMans moving up the middle of a side street. Ritzenhaler testified that he first saw the car two or three minutes after receiving the dispatcher's call. He followed the car, and after confirming its color and model, he signalled the driver to stop. Appellant stopped and exited the car.

An investigative detention requires specific, articulable facts that create a 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 that the unusual activity is related to crime. Meeks v. State, 653 S.W.2d 6, 12 (Tex. Crim. App. 1983). Appellant concedes that Officer Ritzenhaler knew sufficient facts to suspect that an unusual activity had occurred or was occurring. He contends, however, that the facts did not connect his car to that activity.

The statements from the complainant formed part of the facts justifying the detention without regard to reliability. Pringle v. State, 732 S.W.2d 363, 367 (Tex. App. 1987, pet. ref'd); e.g., Campbell v. State, 644 S.W.2d 154 (Tex. App. 1982), pet. ref'd, 647 S.W.2d 660 (Tex. Crim. App. 1983). The complainant had earlier described appellant's car to Officer Carpenter, and Officer Ritzenhaler knew that description. The complainant's first and second calls were close enough in time to allow Ritzenhaler to rely on the description she gave in the first call. Carlos v. State, 705 S.W.2d 359 (Tex. App. 1986, pet. ref'd); see 3 Wayne R. LaFave, Search and Seizure § 9.3(d)(6) (2d ed. 1987). Ritzenhaler saw appellant's car within one block of the complainant's house and within three minutes of her second call. Taken together, these facts connected appellant's car to the unusual activity.

Appellant also argues that the complainant's statements were too vague to relate the unusual activity to crime. In her second call, the complainant said that appellant was doing something to her car and that she thought he was cutting the windows of her vehicle. The complainant had called earlier that night to report that appellant was pouring something into her car's gas tank. These statements indicated that the unusual activity was a possible vandalism of the complainant's car.

Additionally, appellant was committing a traffic violation by driving in the middle of the street when Ritzenhaler stopped him. Tex. Rev. Civ. Stat. Ann. art. 6701d § 60 (1977). A traffic offense committed in an officer's presence authorizes an initial stop. Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982).

We overrule the point of error and affirm the trial court's judgment of conviction.

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

Affirmed

Filed: July 8, 1992

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