                                NO. 07-02-0055-CR

                           IN THE COURT OF APPEALS

                    FOR THE SEVENTH DISTRICT OF TEXAS

                                  AT AMARILLO

                                     PANEL E

                                JANUARY 29, 2003

                       ______________________________


                    ADOLFO BENJAMIN ROCHA, APPELLANT

                                        V.

                        THE STATE OF TEXAS, APPELLEE


                      _________________________________

             FROM THE COUNTY COURT OF DEAF SMITH COUNTY;

                NO. 00-0136; HONORABLE TOM SIMONS, JUDGE

                       _______________________________

Before JOHNSON, C.J., REAVIS, J., and BOYD, S.J.1


                             MEMORANDUM OPINION


      In this appeal, appellant Adolfo Benjamin Rocha challenges his driving while

intoxicated conviction upon his plea of nolo contendere. His punishment was assessed



      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
at 120 days confinement in the Deaf Smith County Jail, probated for 18 months, and a fine

of $400. The appeal arises from the trial court’s pretrial denial of appellant’s motion to

suppress evidence obtained as a result of a police stop which appellant contends was

illegal. In a single issue, he asks us to determine if his detention by the police officer was

in violation of his constitutional right against unreasonable searches and seizures. For

reasons we later articulate, we affirm the judgment of the trial court.


       The facts giving rise to appellant’s arrest and prosecution are essentially

undisputed. The evidence at the suppression hearing showed that after midnight on March

4, 2000, Texas Alcoholic Beverage Commission (TABC) Officers Jeffrey Keith Mann and

Randy McCarthy were with Hereford Police Officer Rob Roach on patrol in Hereford. As

they were driving west on State Highway 60 and approaching its intersection with FM Road

2856, the officers saw another driver run the intersection stop sign. Although the car in

which the officers were riding was unmarked, it had emergency lights and they were used

to stop the driver of the other car.


       Officer Mann approached the driver of the other car and saw that she was “visibly

upset,” crying and shaking. He asked her what was wrong and, over appellant’s hearsay

objection,2 was allowed to testify that a white van had been following her for several

minutes, driving closely behind her, and pulled up beside her at stop signs where the



       2
        The State’s rejoinder to appellant’s objection was that the testimony was admissible
because it was an excited utterance within the purview of Rule of Evidence 803(2). We
agree. See Salley v. State, 25 S.W.3d 878, 880-81 (Tex. App.--Houston [14th Dist.] 2000,
no pet.).

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occupants of the car yelled out the window at her. All of this made her afraid for her safety.

That conversation was estimated to be some 20 to 30 seconds in length and, as Mann was

speaking to the woman, a white van drove by, which she identified as the one that had

been following her. Mann asked her to stay at the spot while he investigated the truth of

her statements.


       The officers returned to their car and pursued the van, which had accelerated to

“quite a high rate of speed.” The officers turned on their emergency lights and, in

response, the van stopped. Officer McCarthy approached the driver’s side of the van while

the other officers stood on the passenger side. The van was occupied by three people with

appellant in the driver’s seat and two passengers in the back of the van. McCarthy asked

appellant to get out of the van and, he said, as appellant did so, he “fell back against” the

van. McCarthy averred that appellant “could . . . hardly walk” and emitted a strong odor

of alcohol. The officer performed field sobriety tests, which included the horizontal gaze

nystagmus test, walking, and standing on one leg. He concluded that each test indicated

that appellant was intoxicated and, because of those results, arrested him for driving while

intoxicated. When the officers returned to the location where the woman had been

stopped, she was no longer there. The officers had not recorded her license plate number

and could not identify her.


       Appellant does not challenge McCarthy’s probable cause to arrest him for driving

while intoxicated after his stop. His challenge, rather, is directed at whether the stop itself,

because it was solely based on the statements of an unidentified third person, was


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permissible. He acknowledges that in pulling him over, the officers were conducting an

investigatory detention and, if they had a reasonable suspicion of unusual activity related

to a crime, the stop would have been permissible.


       In his brief, appellant cites many of the cases discussing the factors to be

considered in determining whether an officer has reasonable suspicion to justify a

temporary detention. See, e.g., U.S. v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870,

64 L.Ed.2d 497 (1980) (reasonableness is based upon the totality of the surrounding

circumstances).


       In his brief, appellant also discusses several cases in which it has been held that

anonymous telephone tips were not sufficient to justify an arrest or detention. See, e.g.,

Rojas v. State, 797 S.W.2d 41, 43-44 (Tex. Crim. App. 1990); Glass v. State, 681 S.W.2d

599, 601 (Tex. Crim. App. 1984); Reynolds v. State, 962 S.W.2d 307, 311 (Tex. App.--

Houston [14th Dist.] 1998, pet. ref’d). However, in other instances, depending upon the

facts, many anonymous telephone tips have been held sufficient to support investigatory

detention. See Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301

(1990); Illinois v. Gates, 462 U.S. 213, 241-42, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983);

Mann v. State, 525 S.W.2d 174, 176 (Tex. Crim. App. 1975).


       In challenging the credibility of the unidentified driver, appellant argues that the facts

here are similar to those before the courts holding anonymous tips insufficient to justify

investigative stops. We need not engage in a detailed analysis of how those cases can



                                               4
be distinguished from this one, because we find the holding of the Fort Worth Court of

Appeals in State v. Sailo, 910 S.W.2d 184 (Tex. App--Fort Worth 1995, pet. ref’d)

indistinguishable and dispositive here. In that case, while police officers were writing a

traffic citation, the driver of a car approaching from the opposite direction “shouted

excitedly” to the officers that he had seen a white Toyota pickup being driven erratically

and he thought the driver of that car must be intoxicated. One of the officers directed the

driver of the car to park nearby and wait for him. Soon thereafter, the officers saw a truck

meeting the first driver’s description. The officers stopped the truck, even though they had

not seen the driver commit any traffic violations.


       As they approached the truck driver, the officers noted a strong smell of alcohol and

saw, in plain view, several beer cans. The driver was unsteady on his feet and his eyes

were extremely bloodshot. The man was arrested as a result of his performance on field

sobriety tests. The driver who initially told the police about the truck left the scene before

the police had a chance to identify him. The trial court there sustained a motion to

suppress, and the State appealed that decision to the Court of Appeals. In considering the

appeal, and en route to reversing the trial court, the appellate court opined that the

question for its decision was how much weight an officer may place upon a tip given in

person from an unidentified informant. Id. at 188. After reviewing the factors to be

considered, the court held that, unlike an anonymous telephone call, the information was

provided by an informant in person who was driving a car from which, at the time of the

information, his identity might easily have been traced and the information furnished by the

informant was neither vague nor imprecise as to the time of the criminal activity nor the

                                              5
crime committed, which increased the reliability of the information. Id. Thus, the court

concluded, considering all the circumstances, the informant and the information was

sufficiently reliable to justify the officers in making an investigatory stop. Id. at 189.


       As we noted, the facts before the Fort Worth court and those before us are well-nigh

identical. We agree with the reasoning of the Fort Worth court and hold it is applicable to

the facts before us. Accordingly, appellant’s issue does not present reversible error, and

it is overruled.


       The judgment of the trial court is affirmed.



                                                   John T. Boyd
                                                   Senior Justice

Do not publish.




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