Texas Department of Public Safety v. Patricia Echols ( 2007 )

NUMBER 13-06-414-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,

v.

PATRICIA ECHOLS, Appellee.

On appeal from the County Court at Law No. 1 of Calhoun County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Rodriguez

   Appellant, the Texas Department of Public Safety (DPS), appeals the county court's reversal of the decision of the Administrative Law Judge (ALJ) to sustain the suspension of the driver's license of appellee, Patricia Echols. By one issue, DPS contends that the county court erred when it reversed the ALJ's decision on the basis that the State did not have reasonable suspicion to detain appellee. We reverse and render.

I. Background

While heading eastbound on Texas Highway 316 at approximately 1:00 a.m., Texas State Trooper Steven Perez observed appellee's vehicle heading westbound. Because appellee's vehicle matched the description that a dispatcher had given Trooper Perez of a possible intoxicated driver, Trooper Perez turned around and followed appellee's vehicle. He observed appellee's vehicle cross the yellow line in the center of the roadway and veer back into the westbound lane. Appellee's vehicle then crossed the white line on the westbound shoulder of the roadway, veered back across the westbound lane, crossed the yellow line in the center of the roadway, and veered back into the westbound lane.

In his report, Trooper Perez stated that he stopped appellee's vehicle because it "failed to stay in a single lane." Trooper Perez noticed a "strong odor of an alcoholic beverage" on appellee's breath and asked her to perform several field sobriety tests. After appellee performed poorly on the field sobriety tests, Trooper Perez arrested her for suspicion of driving while intoxicated (DWI). Appellee refused Trooper Perez's request for a breath specimen, and DPS suspended her driver's license for a period of 180 days pursuant to section 724.035 of the Texas Transportation Code. See Tex. Transp. Code Ann. § 724.035 (Vernon Supp. 2006).

Appellee requested an administrative hearing to review the suspension. The ALJ found that "reasonable suspicion to stop the defendant existed," and upheld the suspension. Appellee filed a petition for judicial review in the county court. The county court reversed the ALJ's decision on the basis that Trooper Perez did not have reasonable suspicion to stop appellee. This appeal ensued.

II. License Suspension

By its sole issue, DPS contends that the county court erred when it reversed the ALJ's decision on the basis that the State did not have reasonable suspicion to detain appellee.

A. Standard of Review and Applicable Law

Courts apply a substantial evidence standard of review when reviewing an ALJ's suspension of driving privileges. Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999); Tex. Dep't of Pub. Safety v. Butler, 110 S.W.3d 673, 675 (Tex. App.--Houston [14th Dist.] 2003, no pet.); Tex. Dep't of Pub. Safety v. Struve, 79 S.W.3d 796, 800 (Tex. App.--Corpus Christi 2002, pet. denied). The evidence in the record may amount to substantial evidence even if it preponderates against the ALJ's decision. See Tex. Health Facilities Comm'n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452-53 (Tex. 1984). The reviewing court must sustain the ALJ's decision if the record provides a reasonable basis to support the decision. See id. at 452. The scope of review is confined to the ALJ record. See Tex. Gov't Code Ann. § 2001.175(e) (Vernon 2000); Dep't of Pub. Safety v. Hirschman, 169 S.W.3d 331, 336 (Tex. App.--Waco 2005, pet. denied). The reviewing court may not substitute its judgment for that of the ALJ. See R.R. Comm'n v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995). If the ALJ's decision is supported by more than a mere scintilla of evidence, the reviewing court must uphold the decision. Butler, 110 S.W.3d at 675. The question of whether the record provides more than a mere scintilla of evidence to support the ALJ's decision is a matter of law, which we review de novo. See Hirschman, 169 S.W.3d at 336-37; Butler, 110 S.W.3d at 675. When reviewing matters of law, we give no deference to the county court's findings. Hirschman, 169 S.W.3d at 336-37; Tex. Dep't of Pub. Safety v. Jauregui, 176 S.W.3d 846, 849 (Tex. App.--Houston [1st Dist.] 2005, pet. denied).

An individual's refusal to provide a breath or blood specimen results in automatic suspension of his or her driver's license by the DPS. See Tex. Transp. Code Ann. § 724.035. An individual may request an administrative hearing to review the suspension. See id. § 724.041 (Vernon Supp. 2006). The ALJ will uphold the suspension if the ALJ determines that (1) reasonable suspension or probable cause existed to stop or arrest the person, (2) probable cause existed to believe that the person was operating a motor vehicle in a public place while intoxicated, (3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen, and (4) the person refused to submit to the taking of the specimen. See id. § 724.042. ⁽¹⁾

B. Analysis

DPS contends that the county court erred when it reversed the ALJ's decision on the basis that Trooper Perez did not have reasonable suspicion to stop appellee. In response, appellee argues that the ALJ improperly admitted, over her hearsay objection, portions of Trooper Perez's report, without which DPS could not establish reasonable suspicion. Therefore, before we reach the merits of DPS's issue, we will first address appellee's hearsay challenge.

1. Appellee's Hearsay-On-Hearsay Objection

Appellee argues that the ALJ erroneously overruled her hearsay-on-hearsay objection to paragraphs one and two of Trooper Perez's sworn incident report. Paragraphs one and two of the incident report read as follows:

01. On Saturday, June 4, 2005, I was dispatched to TX Hwy 316 in reference to a possible intoxicated driver. Dispatch gave a description of the vehicle as a Ford Taurus, 4 door, white in color.

02. I was traveling eastbound on TX Hwy 316. I observed a vehicle matching the description traveling westbound on TX Hwy 316. I turned my patrol unit around and pulled behind the vehicle. As I pulled behind the vehicle, I observed the vehicle veered into the oncoming eastbound lane by crossing the yellow strip line and cross back into the westbound lane. The vehicle then crossed the white line on the shoulder of the roadway in the westbound lane. The vehicle again veered into the oncoming eastbound lane by crossing the yellow strip line and cross back into the westbound lane. I then activated the on board camera on my patrol unit.

Specifically, appellee contends that Trooper Perez's statement that he was "dispatched" to be on the lookout for a vehicle matching appellee's is "hearsay (the caller to the dispatcher) on hearsay (the dispatcher to [Trooper Perez])"; therefore, appellee argues the ALJ should not have admitted the portions of the report relating to the dispatch call. Appellee further contends that the remaining portions of the report do not support the ALJ's finding of reasonable suspicion for the stop.

While the entirety of paragraph one of the report references the dispatch call, only one sentence in paragraph two references the dispatch call. Other than her hearsay-on-hearsay objection to the dispatch call, appellee did not articulate any reason for her objection to paragraph two. Therefore, we construe her hearsay-on-hearsay objection to paragraph two as an objection to the ALJ's admission of the sentence relating to the dispatch call. Accordingly, appellee did not dispute the remaining portions of paragraph two, and we will consider the remaining portions as part of the record on appeal. Therefore, even assuming, without deciding, that the ALJ abused her discretion by admitting the challenged statements, we nevertheless conclude that their admission was harmless because the unobjected-to portions of paragraph two provide more than a mere scintilla of evidence to support the element of reasonable suspicion as set out below. See Tex. R. App. P. 44.1(a)(1); Hughes v. State, 12 S.W.3d 166, 168 (Tex. App.-Fort Worth 2000, no pet.) (holding that admission of hearsay testimony was harmless error when other, properly admitted, evidence supported the verdict); Butler, 110 S.W.3d at 675 (providing that a reviewing court must uphold an ALJ's decision if it is supported by more than a mere scintilla of evidence). ⁽²⁾

2. Reasonable Suspicion

Appellee contends that Trooper Perez's observations that she "failed to stay in a single lane" did not provide reasonable suspicion for the stop because DPS did not offer evidence to support every element of a specific traffic offense. We disagree.

A peace officer may detain an individual when the detaining officer "has specific facts which, taken together with rational inferences from those facts, lead the officer to conclude that the person detained is, has been, or soon will be engaged in criminal activity." Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005). If an officer has a reasonable basis for suspecting that a person has committed a traffic offense, an officer may legally initiate a traffic stop. Green v. State, 93 S.W.3d 541, 544 (Tex. App.--Texarkana 2002, pet. ref'd); Tex. Dep't of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex. App.--Dallas 2001 no pet.). The State is not required to prove that the individual actually committed a traffic violation, but only that the officer reasonably believed a violation was in progress. Green, 93 S.W.3d at 545; Fisher, 56 S.W.3d at 163.

Here, the ALJ found that Trooper Perez had reasonable suspicion to stop appellee. ⁽³⁾ The record before the ALJ established that appellee crossed the yellow linein the center of the roadway, crossed the white line on the shoulder of the roadway, and then crossed the yellow line in the center of the roadway again. ⁽⁴⁾ Although appellee contends that DPS did not offer proof that she committed every element of a specific traffic offense, DPS was not required to do so. DPS was only required to prove that Trooper Perez reasonably believed a violation was in progress. See Green, 93 S.W.3d at 545; Fisher, 56 S.W.3d at 163. Appellee's failure to maintain her vehicle within a single lane provided Trooper Perez with a reasonable basis to believe that she had committed a violation of the law. See, e.g., Tex. Transp. Code Ann. § 545.051 (Vernon 1999) (providing that a driver shall drive on the right half of the roadway unless certain exceptions apply); Id. § 545.058 (providing that a driver may drive on an improved shoulder, but only under certain conditions); see also Green, 93 S.W.3d at 545; Fisher, 56 S.W.3d at 163. Because Trooper Perez had a reasonable basis for suspecting that appellee committed a traffic offense, we conclude that the record provides more than a mere scintilla of evidence to support the ALJ's finding of reasonable suspicion for the stop. See Butler, 110 S.W.3d at 675. Thus, we conclude the county court erred when it reversed the ALJ's decision on the basis that Trooper Perez did not have reasonable suspicion to stop appellee.

We sustain DPS's sole issue.

III. Conclusion

Accordingly, we reverse the county court's judgment and render judgment reinstating the ALJ's decision.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 12th day of July, 2007.

1. The county court reversed the ALJ's decision on the basis that there was not substantial evidence to support her finding of reasonable suspicion. DPS's appeal, therefore, is limited to whether the county court erred in reversing the ALJ's decision as it related to reasonable suspicion; DPS does not appeal the county court's judgment on any other basis.

2. To the extent appellee may contend that this Court is precluded from considering evidence of Trooper Perez's observations of appellee's driving on the basis that "the only reason [Trooper Perez's] attention was drawn to appellee at all was inadmissible," we conclude the briefing is inadequate. See Tex. R. App. P. 38.2(a)(1) (providing that appellee's brief must conform to the requirements of Rule 38.1); see also id. at rule 38.1(h) (

providing that appellant's brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record). Therefore, we will not consider such a contention.

3. The ALJ based her decision in part on a finding that appellee "veered into oncoming traffic twice and onto the shoulder." Although the record does not show that appellee veered into "oncoming traffic," we must nevertheless sustain the ALJ's decision if the record, as a whole, provides more than a scintilla of evidence to support her decision that reasonable suspicion existed. See Dep't of Pub. Safety v. Hirschman, 169 S.W.3d 331, 336 (Tex. App.--Waco 2005, pet. denied).

4. While the county court noted at trial and in its judgment that "for the last fifty years there has been no yellow center line on Highway 316," the scope of review for an administrative hearing is confined to the ALJ record. See Tex. Gov't Code Ann. § 2001.175(e) (Vernon 2000); Hirschman, 169 S.W.3d at 336. Therefore, we will not consider the county court's statement in our review.