       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00078-CR



                                 Donald Ray Gunn, Appellant

                                                v.

                                  The State of Texas, Appellee




         FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY
         NO. 02-3485-2, HONORABLE TIMOTHY L. WRIGHT, JUDGE PRESIDING



                            MEMORANDUM OPINION


               At his bench trial for driving while intoxicated, appellant Donald Ray Gunn objected

to any testimony regarding his appearance and conduct after being stopped by the police, including

the results of his intoxilyzer test, on the ground that the evidence was the fruit of an unlawful

detention. The objection was overruled, and appellant was adjudged guilty and sentenced to 180

days in jail and a $2000 fine, probated. The sole issue on appeal is whether the stop violated the

Fourth Amendment and article I, section 9. U.S. Const. amend. IV; Tex. Const. art. I, § 9.1 We find

that the stop was lawful and affirm the conviction.

               On the night in question, appellant had an altercation with the cashier and manager

of a Round Rock fast-food restaurant. Appellant, who smelled of alcoholic beverage and appeared


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     Appellant does not argue that the state constitution affords him greater protection under the
circumstances than does the federal constitution.
to be intoxicated, insisted that he had been short-changed by the cashier. The manager took

appellant to her office, counted the change drawer, and explained to him that there was no

discrepancy. Appellant stormed out of the restaurant and drove away after making several

threatening gestures toward the manager.

                The manager called the police and reported what had happened. She gave the

dispatcher appellant’s physical description and the description and license plate number of the

pickup truck he was driving. Three police officers in separate units were in the area and responded

to the reported disturbance. Meanwhile, appellant returned to the restaurant, drove around it twice,

then stopped and began to pound on the drive-through service window. The manager made another

call to the police, and this information was also dispatched to the officers.

                Officer Jeff Eckard was the first officer to arrive at the restaurant. He saw appellant’s

pickup pulling away from the service window and recognized that both the truck and the driver fit

the description he had been given by the dispatcher. He also saw a person, later identified as the

manager, wearing what appeared to be a restaurant uniform. She was waiving frantically and

pointing at the departing truck, which was the only vehicle in the driveway. Eckard drove up to the

rear of appellant’s truck as it waited at a red light and initiated the stop.

                We must decide if, under the circumstances, Officer Eckard had a reasonable basis

for suspecting that appellant was or had been engaged in criminal activity. See Terry v. Ohio, 392

U.S. 1, 30 (1968) (grounds for temporary investigative detention); Davis v. State, 829 S.W.2d 218,

221 (Tex. Crim. App. 1992) (same); and see Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997) (standard of review). Appellant argues that he did not, citing the officer’s testimony that he



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stopped appellant “based on what my observations of something may have gone on inside the

restaurant.” We agree with the State that this one sentence taken out of context does not accurately

reflect the facts and circumstances known to the officer.

               Officer Eckard knew that a disturbance had been reported at the restaurant involving

a man who appeared to be intoxicated. He had a description of the man and of the vehicle he was

driving, and he knew that the man had returned to the restaurant and initiated a second disturbance

at the service window. When the officer arrived at the restaurant moments after receiving the second

report, he saw a pickup truck driving away from the window. This truck and its driver, appellant,

matched the descriptions he had been given. An obviously excited woman who appeared to be a

restaurant employee was waiving at the officer and pointing at the departing pickup truck. We hold

that these facts reasonably warranted appellant’s detention for further investigation.

               The evidence supporting appellant’s conviction for driving while intoxicated was not

the fruit of an unlawful detention. The judgment of conviction is affirmed.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: July 6, 2005

Do Not Publish



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