                                  NO. 07-01-0380-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                 FEBRUARY 8, 2002
                          ______________________________

                                  SANDRA D. BURNS,

                                                      Appellant

                                           v.

                                THE STATE OF TEXAS,

                                                Appellee
                        _________________________________

       FROM THE COUNTY COURT AT LAW NO. 2 FOR LUBBOCK COUNTY;

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

Before QUINN, REAVIS and JOHNSON, JJ.

       Appellant, Sandra D. Burns, appeals from a judgment under which she was

convicted of operating a motor vehicle in a public place while intoxicated. Through two

points of error, she contends that the trial court erred in refusing to suppress evidence

obtained via an allegedly improper stop and admitting into evidence the results of her

intoxilyzer test. We affirm.
                      Point One – Refusal to Suppress Evidence

       Initially, appellant contends that the trial court erred in denying her motion to

suppress evidence obtained by the officer after he stopped her. The evidence was

purportedly subject to suppression because the officer lacked probable cause to stop her

for any traffic offense. We overrule the contention.

       Standard of Review

       The applicable standard of review was described by this court in State v. Wallett,

31 S.W.3d 329 (Tex. App.–Amarillo 2000, no pet.). We cite the litigants to same.

       Next, a law enforcement officer need not have probable cause to stop an individual.

He need only have reasonable suspicion that criminal activity is afoot. Held v. State, 948

S.W.2d 45, 51 (Tex. App.–Houston [14th Dist.] 1997, pet. ref’d). This enables him to

temporarily detain (for investigatory purposes) those engaged in the activities creating the

reasonable suspicion. Furthermore, in determining if such suspicion existed, we assess

whether a reasonable person in the position of the officer making the stop, with the

training, experience, and knowledge of the officer, could suspect that the vehicle or person

to be stopped has been or is connected to criminal activity. See United States v. Cortez,

449 U.S. 411, 421-22, 101 S.Ct. 690, 697, 66 L.Ed.2d 621 (1981); Martinez v. State, No.

07-01-0194 (Tex. App.–Amarillo January 29, 2002). And, because the perspective through

which we view the situation is that of the reasonable officer, the subjective thoughts and

intentions of the actual officer making the stop are not determinative. Whren v. United

States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996), Martinez v. State,




                                             2
supra.1

        Application

        Here, the record contains evidence illustrating that appellant traveled down a public

street at 4:40 a.m., made a wide turn, almost hit a curb on which stood the officer who

subsequently stopped appellant, and proceeded to drive down four city blocks while

weaving from her lane three times. Weaving alone has been held sufficient basis to

reasonably suspect one may be intoxicated and to justify an investigatory stop. Held v.

State, 948 S.W.2d at 51. Couple this with evidence of a turn which almost resulted in the

vehicle striking a curb and a pedestrian and we cannot but conclude that a reasonable

officer witnessing the events would have had legitimate grounds to undertake an

investigatory stop of appellant.

                   Point Two – Admitting the Results of the Breath Test

        Appellant next complains of the trial court’s admission into evidence of the results

of her intoxilyzer tests. Two tests were taken, and the results of same revealed that she

had an alcohol concentration of .168 and .164, respectively. The admission of these

results was allegedly error because they were irrelevant, as that term was defined under

Texas Rule of Evidence 401. Furthermore, assuming they were relevant, their probative

value was substantially outweighed by the danger of unfair prejudice; so, they were

purportedly subject to exclusion under Texas Rule of Evidence 403. We overrule the point.


        1
          Again, the test focuses upon the conduct and deductions of a reasonable officer under the
circumstances. Given this, we reject appellant’s suggestion that since the officer at bar stopped appellant
because he thought he had probable cause to believe she com m itted a traffic offense, the Sta te c ould only
justify the stop on that basis. Quite the contrary, if the circum stances perm it the court to de duc e tha t a
reasonable officer could have justified the stop based upon the existence of circumstances creating
reasonable suspicion that c rim inal activity w as afo ot, that is all the State need show, irrespective of the
subjective m otivations of the actua l officer.

                                                      3
        Standard of Review

        The standard of review applicable to claims implicating the admission of evidence

is discussed in Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990). We

refer the litigants to it.

        Application of Standard

        To the extent that appellant believes the results were irrelevant, we note that the

legislature effectively resolved that dispute. Via §724.064 of the Texas Transportation

Code, it declared that “evidence of the alcohol concentration . . . as shown by analysis of

a specimen of the person’s blood, breath, or urine or any other bodily substance . . . is

admissible” in a prosecution arising from chapter 49 of the Penal Code. TEX . TRANSP .

CODE ANN . §724.064 (Vernon 1999). (Emphasis added). Needless to say, trying appellant

for operating a motor vehicle in a public place while intoxicated is prosecution arising under

Chapter 49 of the Penal Code.                TEX . PENAL CODE ANN . §49.04 (Vernon Supp.

2002)(appearing under chapter 49 of the Texas Penal Code and criminalizing the act of

operating a motor vehicle in a public place while intoxicated). Furthermore, the results or

the intoxilyzer tests here purportedly quantify the alcohol concentration found in appellant’s

body. Thus, the legislature made those results relevant pursuant to §724.064 of the

Transportation Code.

        To the extent that appellant invokes Texas Rule of Evidence 403, we read her

argument to implicate the concept of retrograde extrapolation.2 That is, she believes that


        2
         Retrograde extrapolation involves the computation back in time of the alcohol concentration found
in one’s body based upon the speed with which the alcohol is eliminated from the body. Ma ta v. S tate, 46
S.W .3d 902, 908-909 (Tex. Crim . Ap p. 2001). Fu rtherm ore, th e speed with which alcohol is eliminated
depends upon a myriad of factors, as discussed in Mata.

                                                    4
the State tendered the intoxilyzer results to illustrate that she had an alcohol concentration

of .08 or more while driving. Yet, because the tests were not administered until one and

one-half hours after she ceased driving, evidence of the rate at which she eliminated

alcohol from her body (i.e. retrograde extrapolation) was necessary to place the tests

results in context and render them meaningful. Without that evidence (which the State did

not present), the jury was allegedly free to view the results and simply conclude that since

her alcohol concentration exceeded .08 at the time of the test, it did so when the officer

stopped her. And, being allowed to so speculate created a substantial danger of unfair

prejudice.   Assuming arguendo that this argument may have merit under some

circumstances, it does not given those before us.

       The officer who arrested appellant for “driving while intoxicated” had opportunity to

witness certain conduct and circumstances before making the arrest. That conduct

consisted of appellant 1) making a wide turn on a public street and “almost colliding with

the curb where” the officer stood, 2) weaving three times as she drove down a four block

stretch of road, 3) having “a strong odor of an alcoholic beverage on her breath,” 4)

appearing “a little disoriented,” 5) appearing “a little confused,” and 6) failing to

satisfactorily perform the various sobriety tests administered to her. The sobriety tests

consisted of her attempting to recite her A, B, C’s in a way directed by the officer, stand on

one foot while counting to 30, touch her nose with her finger, and walk heel to toe in a

straight line for nine paces, turn around, and repeat the task. Her inability 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 evidence that her breath smelled of

alcohol, one could rationally conclude, beyond reasonable doubt, that appellant was

                                              5
operating a motor vehicle in a public place while intoxicated.3 Consequently, we hold that

the trial court’s decision to reject appellant’s attempt to exclude the evidence via Rule 403

fell within the zone of reasonable disagreement and evinced an exercise of legitimate

discretion.4

        Accordingly, the judgment is affirmed.



                                                                              Brian Quinn
                                                                                 Justice

Do not publish.




        3
          According to statu te, the Sta te m ay prove one to be intoxicated by 1) establishing that the person
did not have the normal use of mental or physical faculties by reason of the introduction of alcohol or any other
substance into the body or 2) having an alcohol concentration of .08 or m ore. T EX . P ENAL C ODE A N N .
§49.01(2) (Vern on Sup p. 2002).

        4
         In holding as we do, we need not address the State’s proposition that §724.064 of the Texas
Transportation Code permits the admission of intoxilyzer results irrespective of the limitations expressed in
Rule 403. We do note, however, that Rule 403 has been applied in situations wherein the legislature has
previously dec lared particular eviden ce a dm issible. See e.g., Mc Co y v. S tate, 10 S.W .3d 50 (Tex.
App.–A m arillo 199 9, no pet. ) (involving a rt. 38.37 of the T exa s Code of C rim inal Pro ced ure).

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