Stone v. State
Decision Date | 29 January 1986 |
Docket Number | No. 418-85,418-85 |
Citation | 703 S.W.2d 652 |
Parties | Katrina Hurley STONE, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Robert J. Wilson, Burleson, for appellant.
Tim Curry, Dist. Atty., and C. Chris Marshall, David K. Chapman, Stan Hatcher and Gary Medlin, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of the misdemeanor offense of driving a motor vehicle in a public place while intoxicated. The jury found her guilty and assessed punishment at 30 days confinement in the Tarrant county Jail and a $500.00 fine. Appellant appealed her conviction to the Second Court of Appeals. That court reversed the conviction in a published opinion, Stone v. State, 685 S.W.2d 791 (Tex.App.--Fort Worth, 1985). The State petitioned this Court for discretionary review, which we granted to consider two issues arising from the court of appeals' decision to reverse the case: first, whether the court of appeals used the wrong rule when it held that the trial court should have instructed the jury on the issue of probable cause to stop the vehicle pursuant to Art. 38.23, V.A.C.C.P.; and second, whether appellant's requested instruction on that issue properly apprised the trial court of the deficiency in the charge.
During the trial, the arresting officer testified that he had stopped appellant's vehicle because he had observed her driving in a "hazardous manner," and because the vehicle was weaving in the roadway. Appellant and her witness denied that the vehicle was weaving in the roadway, and testified that appellant was driving in a prudent manner. Thus, an issue arose concerning the officer's right to stop the vehicle.
Appellant's requested charge stated:
The State objected to the requested charge on the grounds that it constituted an impermissible comment upon the evidence, did not involve an element of the offense, and was not an appropriate issue for jury consideration. The trial court stated the following:
The charge given to the jury did not contain appellant's requested instruction.
The court of appeals noted that there can be error in failing to instruct the jury according to the provisions of Art. 38.23, V.A.C.C.P., which provides:
The court of appeals held that the evidence was sufficient to raise the issue of lack of probable cause, appellant's requested charge sufficiently brought the omission to the court's attention, and that therefore appellant was entitled to have the jury charged on the issue of probable cause, citing Kelly v. State, 669 S.W.2d 720 (Tex.Cr.App.1984); Hall v. State, 649 S.W.2d 627 (Tex.Cr.App.1983); and Murphy v. State, 640 S.W.2d 297 (Tex.Cr.App.1982). The case was reversed on this holding.
We will first address the State's contention that an incorrect standard was used by the court of appeals. An officer is permitted to make a temporary investigative detention of a defendant if the officer has a reasonable suspicion that some activity out of the ordinary is or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication that the activity is related to crime. Johnson v. State, 658 S.W.2d 623 (Tex.Cr.App.1983); Williams v. State, 621 S.W.2d 609 (Tex.Cr.App.1981); Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1976) ( ). See also Anderson v. State, 701 S.W.2d 868 (Tex.Cr.App.1985). The reasonable suspicion required does not rise to the level of probable cause such as is required to justify a warrantless arrest or search. Johnson, supra; Williams, supra; Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970), cert. denied 400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158 (1971). Thus, whether the officer had probable cause to stop the vehicle was irrelevant,...
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