      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00569-CR



                                 Dick Charles Halley, Appellant

                                                  v.

                                   The State of Texas, Appellee


            FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY
       NO. C1CR-07-214657, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted Dick Charles Halley of driving while intoxicated, see Tex. Penal

Code Ann. § 49.04(a) (West 2003), and sentenced him to ten days in jail. In two points of error,

Halley argues that the trial court erred in refusing to submit a “probable cause” jury instruction and

in denying Halley’s motion to suppress certain testimony. We affirm the judgment of the trial court.

               On July 21, 2007, Officer Robert Mitchell was stopped in a Taco Cabana parking lot

when appellant Dick Charles Halley drove into the parking lot at high speed with tires squealing.

Mitchell waved his arms to signal Halley to slow down. Halley stopped and rolled down his window

to speak to Mitchell. When Mitchell approached Halley, Mitchell detected a strong odor of alcohol.

Suspecting that Halley was intoxicated based on Halley’s reckless driving, Mitchell asked Halley

to park and get out of the car. Further investigation led Mitchell to determine that Halley was,

indeed, intoxicated.
                Halley was charged by information with driving while intoxicated. A jury convicted

him and sentenced him to ten days in jail. Halley argues that the trial court erred in failing to include

a “probable cause for the stop” instruction in the jury charge, and in denying his motion to suppress

the testimony of Officer Mitchell.

                Citing no authority, Halley first argues that the trial court’s failure to include a

“probable cause for the stop” instruction is reversible error. According to Halley, Officer Mitchell

arrested Halley without a legal basis for the stop, but the jury charge as submitted implied that the

stop was reasonable and legal:


        The charge given to the jury implied that if Officer Mitchell walked out in front of
        Appellant’s car as it was traveling through the Taco Cabana parking lot and stopped
        him only for squealing his car tires and then made observations that would lead a
        reasonable person to believe that the driver might be intoxicated then the detention
        was reasonable and legal.


                An investigative detention is justified if the officer has a reasonable suspicion that

some activity out of the ordinary is occurring or had occurred, there is some suggestion to connect

the detained person with the unusual activity, and there is some indication that the activity is related

to a crime. Townsend v. State, 813 S.W.2d 181, 185 (Tex. App.—Houston [14th Dist.] 1991,

pet. ref’d) (citing Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983)). The court in

Townsend further explained:


        Indeed, it can reasonably be argued that one of the functions of patrol officers is to
        investigate what they reasonably perceive to be erratic or unsafe driving by motorists
        on public streets. Upon leaving his vehicle, Officer Scott noticed that appellant’s




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       eyes were glassy, there was a strong odor of alcohol on his breath, and appellant
       failed four field sobriety tests. At this point, Officer Scott had sufficient probable
       cause to arrest appellant. We overrule appellant’s third, fourth, and fifth points of
       error.


Id.

               Here, Officer Mitchell observed Halley squeal his tires by turning into a Taco Cabana

parking lot at a high rate of speed. Before Halley eventually stopped, he continued driving

through the parking lot at a high rate of speed. According to Mitchell, Halley’s manner of driving

led Mitchell to suspect that Halley was intoxicated. An officer may detain a driver for further

investigation based on such reasonable suspicion. See id. Here, as in Townsend, Mitchell stopped

Halley based on erratic and/or reckless driving. As Mitchell investigated further, he smelled the

strong odor of alcohol on Halley’s breath. Mitchell’s report further indicates that Halley’s eyes were

bloodshot and glassy, that his speech was slurred, and that he was swaying and staggering. Halley

failed several field sobriety tests. As in Townsend, it was at this point that Officer Mitchell had

sufficient probable cause to arrest Halley. See id.

               In light of these circumstances, Halley complains that the jury was not properly

instructed as to “the law of probable cause to conduct a traffic stop.” The jury was given the

following instruction:


       An officer is permitted to make a temporary investigation detention of a defendant
       if the officer has reasonable suspicion to do so. The reasonable suspicion required
       does not rise to the level of probable cause such as is required to justify a warrantless
       arrest or search. An officer has reasonable suspicion when the officer has specific
       articulable facts that some activity out of the ordinary is [sic] or has occurred, some
       suggestion to connect the defendant with the unusual activity, and some indication



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        that the activity is related to a crime. The defendant’s conduct does not have to be
        actually unlawful.

        Now, if you believe beyond a reasonable doubt that the officer had a reasonable
        suspicion to detain the Defendant, Dick Halley, then you will consider the following
        paragraph. If, however, you do not believe that a reasonable suspicion existed or
        have a reasonable doubt thereof, then you must acquit the defendant, and so say by
        your verdict.


The jury was, therefore, instructed as to the reasonable suspicion standard set out above. No

probable cause instruction was required. See Johnson, 658 S.W.2d at 626. Accordingly, we overrule

Halley’s first point of error.

                Again citing to no authority, Halley also argues that the trial court erred in denying

his motion to suppress evidence obtained during the search about which he complains. According

to Halley, Officer Mitchell’s testimony was “inconsistent and incredible” and, therefore, should have

been suppressed. In light of conflicting testimony, the credibility of a witness and the weight to be

given to his testimony is a matter to be determined by the jury. Having already found that the search

was properly conducted pursuant to the reasonable suspicion standard and that the jury was properly

instructed, we also overrule Halley’s second point of error.



                                               __________________________________________

                                               G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: August 21, 2009

Do Not Publish

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