     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-00-00199-CR



                                Jody Lynn Dowler, Appellant

                                               v.

                                 The State of Texas, Appellee




    FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
           NO. 9327, HONORABLE H. R. TOWSLEE, JUDGE PRESIDING




               After his motion to suppress evidence was overruled, appellant Jody Lynn Dowler

pleaded no contest to an indictment accusing him of felony driving while intoxicated (DWI). See

Tex. Penal Code Ann. §§ 49.04(a), .09(b) (West Supp. 2001). In accord with a plea bargain

agreement, the district court assessed punishment at imprisonment for six years and a $2500 fine,

suspended imposition of sentence, and placed appellant on community supervision. Appellant

brings forward three points of error complaining of the overruling of the suppression motion. We

will overrule these points and affirm.

               At the suppression hearing, Smithville Police Officer Joe Meiron testified that on

the afternoon of July 4, 1999, he and his partner received a dispatch regarding a possible DWI

on Highway 71. The dispatch described the suspect vehicle as a black Ford pickup, Texas license

number TK2500. The officers drove to the indicated location, found the pickup, and began to
follow it. The truck was traveling 50 miles-per-hour in a 70 miles-per-hour zone. The officers

saw the vehicle drift from side-to-side within its lane of traffic. On at least two occasions, the

truck’s outside wheels touched the solid white line defining the outer edge of the highway. The

truck also crossed the broken line separating its lane from an onramp. The pickup did not respond

when the officers turned on their patrol vehicle’s emergency lights, stopping only after the officers

used their siren. The pickup was driven by appellant. We need not detail Meiron’s testimony

regarding appellant’s intoxication.

               Appellant contends the stop of his vehicle violated the constitutions and statutes of

the United States and Texas. See U. S. Const. amends. IV, XIV; Tex. Const. art. I, §§ 9, 19;

Tex. Code Crim. Proc. Ann. arts. 14.01-.04 (West 1977 & Supp. 2001); Tex. Transp. Code Ann.

§§ 542.301, 543.001 (West 1999). Because the district court’s ruling does not turn on the

credibility of a witness, we will review the order overruling the motion to suppress on a de novo

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

               Appellant argues at length that he did not commit any moving traffic violation in

the officers’ presence. The State concedes this. Thus, we confine ourselves to the question of

whether appellant was lawfully detained to investigate the possibility that he was driving while

intoxicated.

               In his second and third points of error, appellant asserts that the Texas constitutional

and statutory provisions cited above prohibit a police officer from stopping an automobile without

probable cause to believe a crime has been or is being committed. The cited statutes state the

unarguable proposition that an officer must have probable cause to make an arrest. But a vehicle


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stop does not always constitute an arrest. Often, such a stop is merely a temporary investigative

detention for which only reasonable suspicion is required. See Berkemer v. McCarty, 468 U. S.

420, 439 (1984). Appellant cites no authority holding that the Texas Constitution does not permit

an officer to stop a motor vehicle under circumstances giving him reasonable suspicion to believe

that the driver is engaged in criminal activity. Points of error two and three are overruled.

                A police officer may stop and briefly detain a person 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. Terry v. Ohio, 392 U. S. 1, 30 (1968). The reasonableness of a

temporary detention must be examined in terms of the totality of the circumstances. Woods v.

State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). A temporary detention is justified when the

detaining officer has specific articulable facts which, taken together with rational inferences from

those facts, lead him to conclude that the person detained is, has been, or soon will be engaged

in criminal activity. Id. A reasonable suspicion means more than a mere hunch or suspicion.

Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). A detention is not permissible

unless the circumstances objectively support a reasonable suspicion of criminal activity. Id.

                In this case, the officers were dispatched to investigate a report of a possibly

intoxicated driver. There is no further evidence regarding the nature of the report, and we will

assume that it came from an anonymous source. While an anonymous tip or telephone call may

justify the initiation of an investigation, it alone will rarely establish the level of suspicion required

to justify a detention. Alabama v. White, 496 U. S. 325, 329 (1990); Davis v. State, 989 S.W.2d

859, 863 (Tex. App. SAustin 1999, pet. ref’d). Normally, a police officer must have additional


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facts before the officer may reasonably conclude that the tip is reliable and an investigatory

detention is justified. Davis, 989 S.W.2d at 863. An officer’s prior knowledge and experience,

and his corroboration of the details of the tip, may be considered in giving the anonymous tip the

weight it deserves. Id. at 864.

               The corroboration of details that are easily obtainable at the time the information

is provided, and which do not indicate criminal activity, will not lend support to the tip. Id. An

accurate description of a subject’s readily observable location and appearance will help the police

correctly identify the person whom the tipster means to accuse, but does not show that the tipster

has knowledge of concealed criminal activity. Florida v. J. L., 529 U.S. 266, 272 (2000). In

this case, the officers’ discovery of the suspect pickup on Highway 71 did not give them any basis

for crediting the tipster’s suspicion that the driver of the pickup was intoxicated.

               Meiron testified to other observations, however, that did lend support to the tip.

Meiron saw appellant weave or drift within his lane of traffic, touching the outside white line

more than once and once crossing into an onramp. Meiron stated that appellant had no reason to

enter the onramp, and that in his experience it is uncommon for sober drivers to drive in that

fashion. Meiron also testified that appellant was driving twenty miles-per-hour below the posted

limit, and that appellant failed to respond when the officer turned on the patrol car’s emergency

lights. While none of the observed conduct was criminal, even innocent acts can give rise to

reasonable suspicion under the proper circumstances. Woods, 956 S.W.2d at 38.

               The opinions on which appellant relies are distinguishable. In State v. Arriaga, 5

S.W.3d 804, 807 (Tex. App. SSan Antonio 1999, pet. ref’d), and State v. Tarvin, 972 S.W.2d


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910, 912 (Tex. App. SWaco 1998, pet. ref’d), the drivers were stopped solely on the basis of

observed drifting or weaving within a single lane of traffic, which the officers erroneously

believed to be a moving violation. The officers did not testify that they suspected the drivers of

being intoxicated, nor did they point to any other facts to justify the stops.

               In Hernandez v. State, 983 S.W.2d 867, 870 (Tex. App. SAustin 1998, pet. ref’d),

this Court held that a vehicle crossing a lane marker a single time did not support a reasonable

suspicion that the driver was intoxicated. We also noted that the officer did not claim to suspect

the driver of intoxication.

               In Rheinlander v. State, 888 S.W.2d 917, 918 (Tex. App. SAustin 1994), pet.

dism’d, 918 S.W.2d 527 (Tex. Crim. App. 1996), the issue presented was whether the defendant

had been lawfully stopped pursuant to a “community caretaker” exception to the Fourth

Amendment warrant requirement. It was not contended that the stop was based on reasonable

suspicion of intoxication, and we expressed no opinion on that subject.

               In Stewart v. State, 22 S.W.3d 646, 648 (Tex. App. SAustin 2000, pet. ref’d), an

officer stopped a vehicle solely on the basis of an anonymous tip that the driver might be

intoxicated. In Davis, 989 S.W.2d at 864-65, an officer stopped a vehicle solely on the basis of

an anonymous tip that the driver might be smoking marihuana. In neither case was there any

meaningful corroboration of the tip.

               Officer Meiron and his partner received a report of a possibly intoxicated driver.

The officers did not stop appellant solely on the basis of that tip, but instead observed appellant’s

driving. While the officers did not see appellant commit a moving violation, appellant’s conduct


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and the inferences an experienced officer could draw from that conduct gave the officers reason

to credit the tip. While the question is a close one, the totality of the circumstances gave the

officers a reasonable, articulable basis for suspecting that appellant was driving while intoxicated

and for detaining appellant to investigate their suspicion. Point of error one is overruled.

               The judgment of conviction is affirmed.




                                              __________________________________________

                                              Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Affirmed

Filed: April 12, 2001

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