Clay Elwood Autery III v. Texas Department of Public Safety ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00223-CV
__________________
CLAY ELWOOD AUTERY III, Appellant
V.
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee
__________________________________________________________________
On Appeal from the County Court at Law No. 1
Jefferson County, Texas
Trial Cause No. 135423
__________________________________________________________________
MEMORANDUM OPINION
In two issues, Clay Elwood Autery III challenges an administrative
order authorizing the suspension of his driver’s license under Chapter
524 of the Texas Transportation Code. That chapter requires the
Department of Public Safety to suspend a person’s driving privileges if
1
the person operates a motor vehicle in a public place with an alcohol
concentration of 0.08 or higher. 1
Autery contends the administrative order revoking his license
should be reversed because the evidence the administrative law judge
(ALJ) considered doesn’t support a finding that the State trooper had
reasonable suspicion to investigate why Autery stopped his vehicle on the
shoulder of the road and doesn’t support a finding that the trooper was
exercising a community-caretaking exception when he initiated the
investigation that led to Autery’s arrest. Because the record supports the
Department’ ruling revoking Autery’s license, we will affirm.
Background
In 2019, Trooper Oscar Camarillo saw a vehicle stopped on the
shoulder of Interstate 10. The trooper activated his emergency lights and
stopped behind Autery’s vehicle. When he approached Autery’s vehicle,
he found Autery in the driver’s seat but unresponsive, which left the
trooper with the impression that Autrey was either asleep or
1Tex. Transp. Code Ann. §§ 524.011, 524.012; see Tex. Penal Code
Ann. §§ 49.01(1)(A), 49.01(2)(B).
2
unresponsive. When Autery woke up, he agreed to the trooper’s request
to submit to an intoxilyzer breath test.
Autery provided two samples of his breath. Both revealed an alcohol
concentration above 0.08 grams per 210 liters of breath. 2 Based on these
results, Trooper Camarillo arrested Autery for DWI, gave Autery a
written notice that his driver’s license was temporarily suspended, and
confiscated Autery’ license. 3 The written form Trooper Camarillo gave
Autery served as Autery’s temporary driver’s license for 40 days. The
form also notified Autery how to obtain a hearing to contest the
suspension of his license.
Autery requested an administrative hearing and contested the
suspension of his license. During the hearing, Autery argued the
Department’s decision to suspend his license should be reversed because
Trooper Camarillo didn’t have reasonable suspicion to believe that
Autery was engaged in criminal activity when the trooper initiated his
investigation to determine why Autery had stopped. And he also argued
2SeeTex. Transp. Code Ann. §§ 524.011, 524.012, 524.022.
3OfficerCamarillo used a form titled “NOTICE OF SUSPENSION”
and labeled as the DIC-25 (Rev. 10/09) when he confiscated Autery’s
license.
3
that Trooper Camarillo wasn’t engaged in a community-caretaking
function when he decided to investigate why Autery had stopped in the
emergency lane on I-10.
Trooper Camarillo was the only witness who testified in the
administrative hearing. In addition to the trooper’s testimony, the ALJ
considered several exhibits admitted into evidence during the hearing:
(1) the trooper’s sworn report of Autery’s stop; (2) the probable cause
affidavit tied to Autery’s arrest, (3) the statutory notices and warning the
trooper gave Autery following the stop; and (3) the results of the
intoxilyzer tests on the Autrey’s breath.
During the hearing, Trooper Camarillo testified he conducted “a
welfare check” on Autery’s vehicle after observing it on the shoulder of I-
10 with the engine and “hazard lights on.” According to the trooper, after
he approached the vehicle, he noticed that Autery was either “asleep or
unconscious.” Then, the trooper knocked on the window of the vehicle “a
couple of times and [Autery] finally woke up.” Trooper Camarillo
explained Autery rolled down the window and he noticed that Autery
smelled of alcohol, seemed disoriented, and had glassy eyes.
4
The trooper asked Autery to perform the standard field sobriety
tests. On the horizontal-gaze nystagmus, the walk-and-turn, and the one-
leg-stand, Trooper Camarillo testified that Autery revealed numerous
clues of intoxication, which the trooper described as a sign that officers
look for as a clue when evaluating whether person is intoxicated. Based
on the investigation and the results of the field sobriety tests, Trooper
Camarillo arrested Autery and charged him with DWI.
Following the hearing, the ALJ signed an order authorizing the
Department to suspend Autery’s driver’s license for 90 days. 4 In the
order, the ALJ found “reasonable suspicion to stop [Autery] existed, in
that Trooper O. Camarillo, after completing a traffic stop on the side of I-
10 in Jefferson County, Texas, observed Defendant asleep and slumped
over the wheel of a vehicle with hazard lights activated stopped on the
side of the road.” 5 Relying on the evidence that the trooper gathered after
approaching Autery’s vehicle and the results of Autery’s field sobriety
4See id. § 524.022.
5The traffic stop the ALJ referenced in her findings appears to
reference a stop Trooper Camarillo testified he made of another vehicle
that morning before he saw Autery’s vehicle, which was already at a stop
when the trooper saw it in the emergency lane of I-10.
5
tests, the ALJ found the trooper had “probable cause” to support Autrey’s
arrest.
Autery filed a notice that he wanted to appeal the ALJ’s ruling to
the County Court at Law Number One in Jefferson County, Texas.6.
Although subject to an exception that does not apply here, the review of
an administrative decision in a driver’s license revocation case is
conducted “on the record certified by the State Office of Administrative
Hearings with no additional testimony.”7 In reviewing the ALJ’s decision,
the County Court at Law Number One conducted its review on a certified
copy of the administrative record; stated another way, the parties
presented no additional testimony to the County Court at Law in the
appeal.
After reviewing the record, the presiding judge of the County Court
at Law Number One denied Autery’s appeal. Autery then filed an appeal
of the County Court at Law’s ruling with this Court. We note we have
jurisdiction over Autery’s appeal because the value of a person’s driving
6See id. § 524.041.
7Id. § 524.043.
6
privileges exceeds the amount in controversy ($100) required to establish
appellate jurisdiction. 8
Standard of Review
Since the statute giving Autery the right to appeal—section 524.043
of the Texas Transportation Code—doesn’t define the scope of judicial
review, we review Autery’s appeal under the substantial evidence rule.9
Here, the trial court affirmed the ALJ’s decision. Consequently, we may
reverse the trial court’s ruling or remand the case for further proceedings
only if two conditions are met: (1) the appellant’s substantial rights were
prejudiced, and (2) we conclude the trial court abused its discretion in
failing to find the ALJ’s decision was:
(A) in violation of a constitutional or statutory provision;
(B) in excess of the agency’s statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial evidence
considering the reliable and probative evidence in the record
as a whole; or
8Tex.Dep’t of Pub. Safety v. Barlow, 48 S.W.3d 174, 175-76 (Tex.
2001) (holding “the courts of appeals do have jurisdiction over [the appeal
from the county court at law’s ruling]” from a ruling denying an ALJ’s
decision suspending a person’s driver’s license).
9Tex. Gov’t Code Ann. § 2001.174; Tex. Transp. Code Ann. §
524.043; see also Tex. Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103
(Tex. 2006) (per curiam).
7
(F) arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion. 10
Under a substantial evidence review, we “may not substitute our
judgment for the judgment of the state agency on the weight of the
evidence.” 11 “We must uphold the agency’s ultimate decision if the
evidence is such that reasonable minds could have reached the conclusion
that the agency must have reached in order to justify its action.” 12 The
burden to prove the agency’s decision is unsupported is on the party
contesting the agency’s ruling, as courts must presume substantial
evidence supports the decision the agency made. 13
Analysis
In two issues, Autery challenges the trial court’s ruling affirming
the ALJ’s decision. In Autery’s first issue, he argues Trooper Camarillo
didn’t articulate a reasonable suspicion justifying the stop. In issue two,
he argues that because the stop was not justified, the exclusionary rule
and fruit of the poisonous tree doctrine bars the State from relying on the
10Id.
11Dyer v.Tex. Comm’n on Envtl. Quality, 646 S.W.3d 498, 514 (Tex.
2022) (cleaned up).
12Id.
13Id.
8
evidence it developed in Trooper Camarillo’s investigation, which is the
evidence that resulted in Autery’s arrest.
In the administrative proceeding, the ALJ found “reasonable
suspicion” justified Trooper Camarillo’s decision to stop Autery.14 In
response to Autery’s argument, the Department says Trooper Camarillo’s
“initial contact with Autery is legally justified as a community caretaking
stop[.] It then notes: “A community caretaking stop does not require
reasonable suspicion.” The Department characterizes the ALJ’s use of the
term “reasonable suspicion” as “mistaken.” And the Department
acknowledges that while the record supports the ALJ’s finding the
trooper found Autery unresponsive, the record does not support the ALJ’s
finding that the trooper found him “slumped over the wheel of the
vehicle[.]”
Even though the Department makes these concessions, the
Department argues substantial evidence in the record still supports the
ALJ’s ultimate ruling because the record shows Trooper Camarillo
checked on Autery’s vehicle as a welfare check and motorist assist under
14Tex. Transp. Code Ann. § 524.035(a).
9
circumstances showing the trooper was carrying out his community-
caretaking function rather than his duties investigating crimes. For that
reason, the Department concludes Autery cannot meet his burden of
proof to show his substantial rights were prejudiced by the ALJ’s
extraneous findings even though it agrees the findings Autery challenges
on probable cause to arrest and whether the trooper found Autery
slumped over the wheel of the vehicle are findings that aren’t supported
by the evidence admitted by the ALJ in the administrative hearing.
We agree the evidence in the administrative hearing doesn’t show
that Trooper Camarillo testified he was suspicious that Autery had
committed a traffic violation or a crime when he saw Autery’s vehicle
stopped in the emergency lane on I-10. Instead, Trooper Camarillo
testified that when he saw the vehicle, he “checked on [the vehicle he saw
stopped in the emergency lane on I-10] as a welfare check and motorist
assist.” 15
Thus, we agree the ALJ’s “reasonable suspicion” finding is
erroneous. Even so, we must “uphold the agency’s ultimate decision if the
15Thetrooper’s sworn report listed the reason for the contact as,
“Motorist Assist, disabled on outside shoulder.”
10
evidence is such that reasonable minds could have reached the conclusion
that the agency must have reached in order to justify its action.”16 So the
question is whether the ALJ rejected Trooper Camarillo’s testimony that
he was conducting a welfare check and motorist assist, which is what he
said he was doing, when he stopped behind Autery vehicle. First, we note
that during closing argument, the Department’s attorney asked the ALJ
to make an affirmative finding that the trooper was conducting a welfare
check when he checked on Autery’s vehicle. The ALJ, however, did not
make that specific finding in response to the Department’s request. Yet
the ALJ also didn’t find that Trooper Camarillo was not conducting a
welfare check when he stopped behind Autery and approached his
vehicle, which was stopped when the trooper first saw in in the
emergency lane on I-10. Second, we note that Trooper Camarillo’s
testimony about checking on Autery’s vehicle as a motorist assist and
welfare check was undisputed. The trooper never testified he stopped
Autery’s vehicle or decided to approach the vehicle because he thought
Autery had violated a traffic law or was suspicious that Autery had
16Dyer, 646 S.W.3d at 514.
11
committed a crime. Third, under Texas law, not only must Autery show
the findings he challenges are faulty as a matter of law, but he must also
show the ALJ’s faulty findings—here, the reasonable suspicion to stop
and probable cause findings—prejudiced Autrey’s substantial rights. 17
Police officers have community-caretaking functions because we
expect them “to aid individuals who are in danger of physical harm,
protect the rights to speak and assemble, facilitate the movement of
people and vehicles, assist people who cannot care for themselves, resolve
conflict, and deter crime through their conspicuousness.” 18 When police
officers are acting in their “community-caretaking functions,” they are
generally not considered to be engaged in the investigation of a crime. 19
To determine whether an officer is exercising a community-
caretaking function, we ask: “(1) whether the officer was primarily
motivated by a community-caretaking purpose; and (2) whether the
officer’s belief that the individual needed help was reasonable.”20
Generally, a police officer’s subjective belief about whether a person
17Id.
18Byram v. State, 510 S.W.3d 918, 920 (Tex. Crim. App. 2017).
19Id.
20Gonzales v. State, 369 S.W.3d 851, 854-55 (Tex. Crim. App. 2012).
12
needed help turns on these four, non-exclusive factors: “(1) the nature
and level of the distress exhibited by the individual; (2) the location of the
individual; (3) whether or not the individual was alone and/or had access
to assistance independent of that officer; and (4) to what extent the
individual—if not assisted—presented a danger to himself or others.” 21
On appeal, Autery argues the community-caretaking exception
doesn’t apply. According to Autery, the evidence doesn’t support an
implied community-caretaking finding because Trooper Camarillo
testified that he would have stopped and detained Autery even had
Autery “turned his hazards off and turned his blinker on and got back on
Interstate 10.” Autery concludes that just because he was stopped in the
emergency lane of a major interstate highway at six o’clock in the
morning with his hazard lights on, without more, doesn’t justify the
inference that Trooper Camarillo made that Autery was a danger to
himself or to others.
We disagree with Autery that the record doesn’t support a ruling
the ALJ must have made to support a decision to suspend Autery’s
21Byram, 510 S.W.3d at 923.
13
license, which is that the investigation that led to Trooper Camarillo’s
discovery of Autery’s intoxication was based on the trooper’s community-
caretaking role rathe rather his role investigating crime. For instance,
there’s substantial evidence in the record that Trooper Camarillo saw
Autery’s vehicle in the emergency lane of a major interstate highway with
its hazard lights flashing. The trooper testified the reason he decided to
check on Autery’s vehicle is that “the vehicle was on. I checked on him as
a welfare check and motorist assist.” Thus, substantial evidence in the
record shows that Trooper Camarillo subjectively believed he was
exercising his role as a community caretaker rather than his role in
investigating crime. Trooper Camarillo explained that, as he approached
Autery’s vehicle, he saw Autery and thought he was either asleep or
unconscious. The trooper went to the passenger side of Autery’s vehicle
and knocked on the window. But Autery didn’t respond. Then Trooper
Camarillo went to the driver’s side of the vehicle, he knocked on the
window a few times when, “[Autery] finally woke up.” According to
Trooper Camarillo, Autery rolled down the window, appeared “very
disoriented, and then that’s when I could smell the alcohol and he had
glassy eyes.” The trooper also explained that based on the direction
14
Autery had parked his car, he was headed in a direction inconsistent with
the one he should have been in had he been driving to the city where he
said he was headed.
In his brief, Autery relies heavily on Trooper Camarillo’s testimony
that he would have stopped Autery even if Autery had turned off his
hazard lights and left the scene. But in our review, we consider the entire
record rather than a subset of the evidence that looks only to what
Trooper Camarillo said in response to a hypothetical question, which
omitted many relevant facts. For example, Autery’s attorney left out the
fact that Trooper Camarillo found Autery unresponsive in his car, and
omitted facts showing that when the trooper woke Autery up, the trooper
noticed Autrey smelled of alcohol, appeared disoriented, and had glassy
eyes.
We conclude substantial evidence in the administrative record
allowed the trial court to find the agency’s decision to revoke Autery’s
license was justified because Trooper Camarillo was exercising a
15
community-caretaking function when he stopped and checked on
Autery. 22 Because Autery’s first issue lacks merit, it is overruled.
In issue two, Autery contends the trial court erred by admitting
evidence the Department obtained after Trooper Camarillo detained
Autery and arresting him for DWI. According to Autery, the exclusionary
rule and fruit of the poisonous tree doctrine barred the Department from
relying on this evidence. Generally, the State is not allowed to use
evidence it obtains directly or indirectly from an illegal seizure. 23 We note
that Autery’s attorney stated he had no objections when the
Department’s attorney offered the Department’s exhibits into evidence
during the administrative hearing. During the administrative hearing,
22See Dyer, 646 S.W.3d at 514 (noting that under the substantial
evidence standard, an “improper, but superfluous, finding does not
prejudice the substantial rights of the appellant”); see also Solano v.
State, 371 S.W.3d 593, 595 (Tex. App.—Amarillo 2012, no pet.) (holding
a police officer was engaged in community-caretaking function when he
stopped to check on a vehicle on the side of the road with its hood raised
and its hazard lights flashing); Wiseman v. State, No. 02-06-021-CR, 2006
Tex. App. LEXIS 10030, at *15-16 (Tex. App.—Fort Worth 2006, pet.
ref’d) (not designated for publication) (holding a police officer was
engaged in community-caretaking function when he stopped to check on
a vehicle parked against a curb in an apartment complex with its hazard
lights on and a passenger half in and half out of the vehicle).
23See Wong Sun v. United States, 371 U.S. 471, 488 (1963); Smith
v. State, 542 S.W.2d 420, 422 (Tex. Crim. App. 1976).
16
Autery’s attorney also didn’t make any objections to Trooper Camarillo’s
testimony. Thus, the arguments Autery raises in his second issue were
not properly preserved for our review. 24 But even had Autery preserved
them, we have explained that Trooper Camarillo obtained the evidence
legally because the record contains substantial evidence showing the
community-caretaking exception applies to Autery’s encounter with the
trooper, which led to the evidence that resulted in Autery’s arrest. 25
Conclusion
We conclude the trial court did not abuse its discretion in denying
Autery’s appeal from the Department’s ruling suspending Autery’s
driver’s license. We overrule Autery’s issues and affirm the order denying
Autery’s appeal.
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on January 24, 2022
Opinion Delivered December 22, 2022
Before Kreger, Horton and Johnson, JJ.
24Tex. R. App. P. 33.1(a).
25State v. Brabson, 976 S.W.2d 182, 185 (Tex. Crim. App. 1998)
(noting the issue of “probable cause” is not properly before the ALJ in a
driver’s license revocation hearing—i.e., the finding of probable cause is
superfluous).
17