                                            NO. 07-02-0157-CR

                                     IN THE COURT OF APPEALS

                             FOR THE SEVENTH DISTRICT OF TEXAS

                                               AT AMARILLO

                                                   PANEL E

                                       DECEMBER 18, 2002
                                 ______________________________

                                          FRANKIE LEE NAGLE,

                                                                      Appellant

                                                        v.

                                         THE STATE OF TEXAS,

                                                      Appellee
                              _________________________________

   FROM THE COUNTY CRIMINAL COURT AT LAW NO. 4 OF HARRIS COUNTY;

                    NO. 1085784; HON. JAMES E. ANDERSON, PRESIDING
                            _______________________________

Before QUINN and REAVIS, JJ., and BOYD, SJ.1

          Appellant, Frankie Lee Nagle, appeals from his misdemeanor conviction of driving

while intoxicated. In five issues, he claims that 1) the trial court erred in denying his motion

to suppress evidence seized as a result of a warrantless stop, 2) the warrantless stop was

in violation of the Fourth Amendment to the Federal Constitution, 3) the warrantless stop

was in violation of art. I, §9 of the Texas Constitution, and 4) the evidence was legally and

factually insufficient to prove his guilt. We affirm the judgment of the trial court.



          1
            John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent. T EX . G O V ’T
C ODE   A N N . §75.0 02(a )(1) (V erno n Su pp. 2002 ).
                                    Background

          On November 2, 2001, at approximately 1:10 a.m., appellant drove onto Crown

Road from Traffic Circle in Harris County on his way home from a pub. He had arrived at

the pub after leaving work around 11:00 p.m. and consumed three to four beers before

leaving. Located on the road he traveled and near Crown Petroleum was a “security

checkpoint.” The latter was erected to check cars coming into the area and was staffed

by one employee of Crown Petroleum as well as three police officers.2 As appellant

approached the checkpoint, he was signaled to stop, according to an officer at the site.

In response, appellant allegedly waved what appeared to be a badge and continued

through the point. Appellant denied that anyone directed him to stop and that he presented

any badge. Rather, he testified that those at the checkpoint ignored him. Nevertheless,

the road upon which he traveled was not a throughway. It apparently ended in the parking

lot of the petroleum company. Thus, he turned around and attempted to again pass the

checkpoint. At that time, a police officer stopped him, asked that he identify himself, and

asked his destination. Furthermore, as the officer spoke with appellant, he noticed that

appellant smelled of alcohol, slurred his speech, and had red eyes. These circumstances

resulted in appellant’s detention until a DWI Task Force officer arrived to conduct field

sobriety tests.     The Task Force officer arrived approximately an hour later and

administered the tests. Appellant performed those tests poorly, which resulted in his

arrest.




          2
         Alth ough the officers were employed by Crown Petroleum, their work was approved by the
Pasad ena Police Departm ent.

                                               2
                     Issues One, Two, and Three - Motion to Suppress

        Via his first three issues, appellant challenges the warrantless stop of his vehicle.

He contends that the trial court erred in denying his motion to suppress because 1) the

officers lacked reasonable suspicion to temporarily detain him and 2) the checkpoint was

illegal.3 We overrule the issues.

                                                The Law

        The standard of review applicable to the issues is well settled. Instead of reiterating

it, we cite the parties to State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) and

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Furthermore, in State v.

Skiles, 938 S.W.2d 447 (Tex. Crim. App. 1997), the Texas Court of Criminal Appeals held

that one’s failing to stop at a roadblock itself creates reasonable suspicion to stop the

individual. Id. at 454. And, given that court’s interpretation of the authority it cited as

support for the proposition, the legality of the roadblock matters not. Id.

                                              Application

        The stop of which appellant complains is undoubtedly that encountered after turning

around in the parking lot of Crown Petroleum. This is so because he did not stop when he

first approached the checkpoint. Next, evidence of record exists upon which the trial court

could reasonably conclude that appellant failed to stop after those present, including at

least one police officer, directed him to do so. So too could it hold, given Skiles, that

appellant’s failure to stop gave the officer reasonable suspicion to temporarily detain him.

Finally, such a determination would not fall outside the zone of reasonable disagreement.


        3
          Appellant does not argue that the Texas Constitution provides him any greater protection than the
Un ited States Constitution . Therefore, w e will not addre ss th at conten tion se para tely.

                                                    3
Accordingly, we hold that the trial court did not abuse its discretion in refusing to grant the

motion to suppress.

                      Issues Four and Five - Sufficiency of the Evidence

       In his fourth and fifth issues, appellant challenges the legal and factual sufficiency

of the evidence to prove that, at the time he was operating a motor vehicle, he had lost the

normal use of his physical or mental faculties due to his ingestion of alcohol. Such were

elements of the crime which the State was obligated to prove beyond reasonable doubt.

It did not, according to appellant. We overrule the issues.

                                           The Law

       The standards of review applicable in determining whether the evidence was legally

and factually sufficient to sustain a conviction are well settled. We will not reiterate them

but rather refer the litigants to Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979), King v. State, 29 S.W.3d 556, 562-63 (Tex. Crim. App. 2000), and

Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) for explanations of the same.

       Next, to convict one of driving while intoxicated, the State must prove that the

defendant was intoxicated while operating a motor vehicle in a public place. TEX . PEN .

CODE ANN . §49.04 (a) (Vernon Supp. 2003). “Intoxicated” means “not having the normal

use of mental or physical faculties by reason of the introduction of alcohol . . . into the body

. . . .” Id. §49.01(2)(A). Additionally, there must be a concurrence of the elements of the

offense to warrant a conviction. Chaloupka v. State, 20 S.W.3d 172, 173-74 (Tex. App.—

Texarkana 2000, pet. ref’d). Thus, at bar, the State had to prove not that appellant was




                                               4
intoxicated at the time the officer conducted the field sobriety tests but when he was driving

on Crown Road.

                                             Application

       Appellant argues that the State presented no evidence of loss of faculties such as

erratic driving, poor balance, disorientation, or stumbling. Nor did the officer conduct the

field sobriety tests until an hour after appellant was initially detained. Thus, the State failed

to prove he was intoxicated at the time he operated the vehicle, he concludes. We

disagree.

       While the evidence may not illustrate that appellant drove erratically or exhibited

poor balance, disorientation, or stumbling, he did have slurred speech and bloodshot eyes,

according to the testimony of an officer. So too did he smell of alcohol. Appellant also

admitted to having three to four beers at the pub before leaving it.4 To this we add 1) the

evidence of appellant having run or missed what one could view as an open and obvious

checkpoint with one police car and three uniformed officers located thereat, and 2) doing

poorly on the sobriety tests later administered to him.

       It may well be that the field sobriety tests were delayed for about an hour.

Furthermore, as the time gap between the initial detention and the administration of those

tests increases, their results may well become less probative. Owen v. State, 905 S.W.2d

434, 439 (Tex. App.—Waco 1995, pet. ref’d). Nevertheless, that does not mean that they

are per se inadmissible, irrelevant, or non-probative. Rather, the delay renders the

evidence potentially subject to exclusion via Rule 403. Id.; TEX . R. EVID . 403 (stating that


       4
        The re is no evidence of record suggestin g that appellant normally had a speech impedim ent or
bloodshot eyes.

                                                  5
evidence may be inadmissible if its probative value is substantially outweighed by its

prejudicial effect).   Yet, until excluded, it can serve as evidence susceptible to

consideration by the factfinder, despite the delay. Owen v. State, supra. And, appellant

does not here contend that the evidence was inadmissible under Rule 403. So, when the

results of the field sobriety tests are considered here, along with the evidence of bloodshot

eyes, slurred speech, the smell of alcohol, and the running of a checkpoint, their sum total

constitutes some evidence upon which a rational factfinder could hold, beyond reasonable

doubt, that appellant did not have the normal use of his mental or physical faculties by

reason of the introduction of alcohol into his body while driving down Crown Road. And,

such a finding would not be manifestly unjust or clearly wrong when tested against the

entire record. Accordingly, the evidence was neither legally nor factually insufficient to

support the verdict.

       We affirm the judgment of the trial court.



                                                    Brian Quinn
                                                      Justice


Do not publish.




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