
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-97-00650-CV


Texas Department of Public Safety, Appellant

v.


Frank Bartow, Jr., Appellee






FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY

NO. 234,823, HONORABLE JOE DIBRELL, JUDGE PRESIDING 






	Appellant Texas Department of Public Safety challenges a county court at law order
reversing an administrative order sustaining the suspension of appellee Frank Bartow, Jr.'s
driver's license.  See Tex. Transp. Code Ann. §§ 724.042, .043 (West Supp. 1999).  The
Department contends the trial court erred in reversing the administrative order because the
necessary fact findings were supported by substantial evidence.  We agree and will reverse.

	We summarize the undisputed evidence presented at the hearing before the
administrative law judge ("ALJ").  Carl Pardinek, a sergeant with the Austin Police Department
K-9 unit, testified that on December 4, 1996 at approximately 11:30 p.m., he was training his
patrol dog in a field in east Austin when a pedestrian approached him and reported seeing a man
slumped over the steering wheel of a vehicle at the nearby intersection of East 12th Street and
Chestnut.  Sergeant Pardinek drove to the intersection, turned on his emergency lights, and
positioned his unmarked police vehicle behind a white Dodge pickup truck sitting at the location
described by the pedestrian.  Before he could approach the pickup, a woman walked toward the
pickup and yelled at the driver to wake up.  Sergeant Pardinek testified that the driver did wake up
and proceeded to drive eastbound on 12th Street at approximately five miles per hour.
	Sergeant Pardinek followed less than five feet behind the truck and eventually
signaled the driver to pull over.  The truck continued to creep down the street.  Sergeant Pardinek
testified that when the driver did not respond to his signal, he "bumped" his siren several times and
identified himself as police over his PA system.  The driver finally stopped.  There was no testimony
that the truck was being driven recklessly or in any way unlawfully.  Sergeant Pardinek testified that
he did not believe the driver had violated any traffic laws, but that, based on his experience, he
suspected that the driver was intoxicated.  He stated that in addition to the slow rate of speed, he
noticed that the driver "did sway noticeably within that outer lane of traffic."
	Sergeant Pardinek approached the pickup, identified himself as a police officer, and 
asked the driver to turn off the engine.  He testified that the driver took a "full 15 seconds" before
turning off his ignition.  In response to Sergeant Pardinek's request, the driver identified himself as
appellee.  Sergeant Pardinek then asked appellee to get out of the vehicle and accompany him to the
sidewalk.  It was at that time Sergeant Pardinek observed that appellee "swayed as he walked." 
Sergeant Pardinek also noticed a "moderate odor of alcoholic beverage" on appellee's breath.  He
then called for a patrol officer to administer field sobriety tests on appellee, which appellee failed. 
Appellee's license was subsequently suspended and sustained after a hearing before the ALJ. 
Appellee appealed the suspension to the county court of law.  Following a hearing, the court issued
an order reversing the suspension, holding that the evidence "was insufficient to provide
substantial evidence that the Department met the requisite burden of proof to establish sufficient
temporary suspicion for the stop."
	In its only issue presented, the Department argues that Sergeant Pardinek articulated
sufficient facts showing that appellee was engaged in activity that was connected to the crime of
driving while intoxicated, thereby establishing reasonable suspicion under Texas law to warrant
the initial stop.  Pursuant to the Administrative Procedure Act, a reviewing court must test the
agency's findings, inferences, conclusions, and decisions to determine whether they are reasonably
supported by substantial evidence considering the evidence in the record as a whole.  Tex. Gov't
Code Ann. § 2001.174(2)(E) (West Supp. 1999); Texas Health Facilities Comm'n v. Charter
Medical-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984); Texas Dep't of Pub. Safety v. Latimer,
939 S.W.2d 240, 244 (Tex. App.--Austin 1997, no writ).  When the facts established are
undisputed, the question of whether they constitute reasonable suspicion is reviewed de novo.  See
Guzman v. State, 955 S.W.2d 85, 87-88 (Tex. Crim. App. 1997).
	"[A]n officer may stop and briefly detain a citizen for investigative purposes if the
officer, in light of his experience, has a reasonable suspicion supported by articulable facts that
criminal activity may be afoot."  Woods v. State, 970 S.W.2d 770, 773 (Tex. App.--Austin 1998, 
pet. ref'd) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)).  Reasonable suspicion means more than
a hunch or suspicion.  Id. (citing Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997)).
The activity need not constitute a crime in itself to justify the detention; however, the detaining
officer must point to something which would lead a reasonable person to believe that the detainee
was engaged in a criminal act.  See Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992).
	Sergeant Pardinek testified that based on his experience he suspected appellee was
driving drunk because "his speed was right at five miles an hour and within his lane, he did sway
noticeably within that outer lane of traffic," and that these actions created a suspicion for him to
stop the vehicle.  In conjunction with the other evidence regarding the pedestrian report and the
length of time the vehicle remained at the intersection without moving, this testimony provided
sufficient specific facts to support the ALJ's finding that appellee's temporary detention was
lawful.  Although none of the acts in which appellee engaged prior to the initiation of the stop
were inherently illegal, together they were sufficient to create a reasonable suspicion that some
activity out of the ordinary was occurring or had occurred.  See, e.g., Fox v. State, 900 S.W.2d
345, 346 (Tex. App.--Fort Worth 1995) (officer followed defendant for four miles, during which
time his speed fluctuated between forty and fifty-five miles per hour four times and he was
weaving within his lane), pet. dism'd per curiam, 930 S.W.2d 607 (Tex. Crim. App. 1996);
Raffaelli v. State, 881 S.W.2d 714, 716 (Tex. App.--Texarkana 1994, pet. ref'd) (reasonable
suspicion existed when officer observed defendant weaving within his own lane and driving at a
"high" rate of speed); Barraza v. State, 733 S.W.2d 379, 380 (Tex. App.--Corpus Christi 1987)
(reasonable suspicion existed when officer observed defendant weaving within his own lane and
making two improper turns), aff'd, 790 S.W.2d 654 (Tex. Crim. App. 1990); Miffleton v. State,
728 S.W.2d 880, 883 (Tex.App.--Austin 1987) (reasonable suspicion existed based on defendant's
rapid acceleration, weaving, and excessive speed), aff'd, 777 S.W.2d 76 (Tex. Crim. App. 1989). 
Considering the totality of the circumstances in this case, we conclude that the record contained
substantial evidence to support the ALJ's decision that appellee's conduct was suspicious enough
to warrant police intrusion at the time the stop was made.  See Hulit v. State, 982 S.W.2d 431,
438 (Tex. Crim. App. 1998).
	The order of the trial court is reversed and judgment is rendered upholding the
administrative suspension of Bartow's driver's license. 


  
					J. Woodfin Jones, Justice
Before Chief Justice Aboussie, Justices Jones and Yeakel
Reversed and Rendered
Filed:   May 27, 1999
Do Not Publish  Released for publication June 17, 1999.  Tex. R. App. P. 47.3(c).

facts showing that appellee was engaged in activity that was connec