Texas Department of Public Safety v. Roberto Uribe Gutierrez ( 2010 )

MEMORANDUM OPINION
No. 04-10-00107-CV
TEXAS DEPARTMENT OF PUBLIC SAFETY,
Appellant
v.
Roberto Uribe GUTIERREZ,
Appellee
From the 49th Judicial District Court, Zapata County, Texas
Trial Court No. 7285
Honorable Jose A. Lopez, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: September 15, 2010
REVERSED AND RENDERED
The Texas Department of Public Safety (the “Department”) appeals the trial court’s order
reversing an administrative decision suspending Gutierrez’s driver’s license based on his refusal
to submit a breath specimen. We reverse the trial court’s judgment and render judgment
reinstating the suspension of Gutierrez’s driver’s license.
04-10-00107-CV
BACKGROUND
On March 19, 2009, at 9:49 p.m., DPS Trooper Jeff Wachtendorf was on patrol duty
traveling south on U.S. Highway 83 in Zapata County, Texas. He observed a vehicle
approaching with its high beam headlights on as it was traveling north on Highway 83. The
driver did not dim his vehicle’s headlights as he passed the trooper’s vehicle. Trooper
Wachtendorf pulled over the vehicle for failure to dim the headlights, and identified the driver as
Roberto Uribe Gutierrez. See TEX. TRANSP. CODE ANN. § 547.333(c)(1) (Vernon 1999).
Trooper Wachtendorf observed an open 12 ounce can of beer in the center console of the vehicle.
When Gutierrez was asked to provide his driver’s license, he had difficulty finding it in his
wallet. When Gutierrez exited the vehicle, the trooper noticed the odor of alcohol on his breath.
Gutierrez admitted drinking four or five beers before driving. Gutierrez failed the field sobriety
tests, and Trooper Wachtendorf arrested Gutierrez and transported him to the Zapata County jail.
At the jail, the trooper read Gutierrez his statutory warning and requested a specimen of
Gutierrez’s breath. Gutierrez refused to provide a breath sample and refused to sign the DIC-24
statutory warning.
At the administrative hearing, Trooper Wachtendorf’s offense report (DIC-23) with the
statutory warning (DIC-24) attached was admitted into evidence with no objection; the officer
did not personally appear. The only other evidence received at the hearing was the testimony of
Gutierrez, who contradicted several statements made in the offense report. As to the reason for
the initial stop, the trooper’s report states he was traveling southbound on State Highway 83 in
Zapata County when Gutierrez’s vehicle approached him traveling northbound on the same
highway. Gutierrez had his high beams on and never dimmed them. Wachtendorf stopped
Gutierrez for the traffic violation of failure to dim his headlights. Gutierrez testified at first that
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he did not recall whether he had his high beams on; he then explained that, a couple of minutes
before he passed the trooper, he noticed some other cars traveling ahead of the trooper and he
was not using his high beams under those conditions. Gutierrez also testified that none of the
other drivers, including the trooper, flashed their lights to ask him to dim his high beams. As to
probable cause to believe Gutierrez was driving a motor vehicle on a public road while
intoxicated, the offense report listed the following observations by Trooper Wachtendorf: (1) an
open 12 ounce can of Miller Lite beer in the center console; (2) Gutierrez’s difficulty finding his
driver’s license in his wallet; (3) the odor of alcohol on Gutierrez’s breath; (4) Gutierrez’s
admission he drank four or five beers before driving; and (5) Gutierrez failed the field sobriety
tests. During his testimony, Gutierrez admitted drinking about four beers with dinner before
driving that night, but testified there was not an open beer can in his console. Gutierrez testified
he was nervous when he performed the field sobriety tests; he stated that he did not actually
perform the one-leg stand part of the test, even though the offense report states he failed it.
Finally, as to the giving of the statutory warning, the offense report states the trooper read
Gutierrez his statutory warning, 1 and requested a breath specimen, which Gutierrez refused, and
Gutierrez refused to sign the DIC-24 statutory warning. At the hearing, Gutierrez testified he did
not receive any documentation when he was placed under arrest, and did not receive his
temporary driving permit until several days after the arrest.
At the conclusion of the administrative hearing, the Administrative Law Judge (ALJ)
found the Department met its burden and authorized suspension of Gutierrez’s driver’s license
for 180 days. See TEX. TRANSP. CODE ANN. § 724.035(a)(1) (Vernon Supp. 2009); see also id.
1
The offense report states Wachtendorf read him “the DIC-23,” but the report itself clearly shows that a DIC-23 is
the offense report and a DIC-24 is the statutory warning; it is clear the report’s reference to reading the DIC-23
instead of the DIC-24 was a clerical error. Further, the report states in the next sentence that Gutierrez “refused to
sign [the] DIC-24,” referring to the statutory warning.
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§ 724.042 (Vernon Supp. 2009) (listing the four issues the Department must establish at the
administrative hearing). The ALJ found the following facts were proved by a preponderance of
the evidence: (1) reasonable suspicion existed to stop and detain Gutierrez for failure to dim his
headlights as he passed the officer’s oncoming vehicle on the date in question; (2) probable
cause existed to arrest Gutierrez for operating a motor vehicle in a public place while intoxicated
based on the officer’s observations of an open container of alcohol in the vehicle, the odor of
alcohol on Gutierrez’s breath, his admission he had consumed four or five beers before driving,
and multiple clues of intoxication during the field sobriety tests; (3) Gutierrez was asked to
submit a breath specimen after being arrested and given the statutory warning by the officer; and
(4) Gutierrez refused to allow taking of the specimen and refused to sign the statutory warning
form. See id.
Gutierrez appealed the administrative license suspension to the trial court, arguing there
was not substantial evidence to support the stop and that he was not given the statutory
warning. See TEX. TRANSP. CODE ANN. § 724.047 (Vernon 1999); TEX. TRANSP. CODE ANN.
§§ 524.041—.044 (Vernon 2007 & Supp. 2009). The trial court reversed the ALJ’s decision,
finding there was “no substantial evidence” to show there was reasonable suspicion to stop and
detain Gutierrez for failure to dim his headlights or to show that Gutierrez was operating a motor
vehicle in a public place while intoxicated; the court also found that Gutierrez did not receive the
required written statutory warnings. The Department brought this appeal.
ANALYSIS
On appeal, the Department challenges the trial court’s findings that: (1) “there was no
substantial evidence to show that there was a reasonable suspicion to stop and detain the
Petitioner for a failure to dim headlights on the date of arrest;” (2) “there was no substantial
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evidence that the Petitioner was operating a motor vehicle in a public place while intoxicated on
the date of arrest;” and (3) “the Petitioner did not receive the required written statutory warnings
required by law.” The Department asserts the trial court did not apply the proper standard of
review, and improperly substituted its own judgment for that of the ALJ. The Department
asserts there is no ground warranting reversal of the ALJ decision, and requests reinstatement of
the suspension of Gutierrez’s license. Gutierrez responds by citing his own testimony at the ALJ
hearing that contradicted the trooper’s testimony, arguing, in essence, that he was more credible
and the trial court did not err in reversing the administrative decision.
Each of the three findings made by the trial court in support of its reversal order turn on
an assessment of the credibility of Gutierrez versus Trooper Wachtendorf—credibility
evaluations that the ALJ already resolved against Gutierrez. Under the appropriate standard of
review to be applied to appeals from ALJ decisions, the trial court was not authorized to re-
evaluate the witnesses’ credibility or to re-weigh the evidence and substitute his own judgment
for that of the ALJ. See Tex. Dep’t of Pub. Safety v. Sanchez, 82 S.W.3d 506, 510 (Tex. App.—
San Antonio 2002, no pet.). When reviewing an administrative decision, the trial court is limited
to examining the ALJ’s order to determine whether it is “reasonably supported by substantial
evidence” in the administrative hearing record. TEX. TRANSP. CODE ANN.
§§ 724.047, 524.043(a) (Vernon 1999 & 2007); TEX. GOV’T CODE ANN. § 2001.174 (Vernon
2008). Only a mere scintilla of evidence need exist to constitute “substantial evidence.” R.R.
Comm’n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792-93 (Tex. 1995). The trial court’s
focus in reviewing the ALJ decision is its reasonableness, not its correctness. Sanchez, 82
S.W.3d at 510. “Even if the evidence supporting the ALJ’s order amounts to only slightly more
than a scintilla, the trial court must affirm the ALJ’s order if the findings are reasonable.” Id.;
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Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). We, in turn, review the
trial court’s order reversing the ALJ’s decision de novo. Sanchez, 82 S.W.3d at 510.
Here, having reviewed the record and deferring to the credibility assessments made by
the ALJ in issuing the suspension order, we conclude the ALJ’s findings are reasonable and are
supported by substantial evidence in the record. Mireles, 9 S.W.3d at 131; Sanchez, 82 S.W.3d
at 510. It is the ALJ’s role to determine the credibility of the witnesses, and neither the trial
court nor the appellate court may substitute its own judgment regarding witness credibility or
weight of the evidence. Sanchez, 82 S.W.3d at 511; Tex. Dep’t of Pub. Safety v. Cuellar, 58
S.W.3d 781, 783 (Tex. App.—San Antonio 2001, no pet.). Here, the ALJ chose to credit the
statements by Trooper Wachtendorf in his offense report over the testimony of Gutierrez, and
there is sufficient evidence in the record to support the ALJ’s findings as reasonable and
supported by substantial evidence. The trooper’s report states he personally observed Gutierrez
commit a traffic violation by failing to dim his high beams, thus giving him reasonable suspicion
to stop Gutierrez. In addition, the report lists the trooper’s personal observations of Gutierrez
driving on a public highway, an open container of alcohol in his vehicle, the odor of alcohol on
Gutierrez’s breath, his difficulty locating his driver’s license, and his poor performance on the
field sobriety tests, as well as Gutierrez’s admission that he drank four beers before driving;
these facts amount to probable cause to arrest Gutierrez for driving while intoxicated. Finally,
the ALJ was entitled to believe Trooper Wachtendorf’s statement that he read Gutierrez the DIC-
24 statutory warning, but he refused to sign it, instead of Gutierrez’s testimony that the trooper
gave him “no documentation.” The Department need not disprove the “alternative hypotheses”
proffered by Gutierrez in order to meet its burden of proof under section 724.042. Sanchez, 82
S.W.3d at 511.
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Accordingly, the trial court’s order reversing the administrative decision is reversed, and
the administrative order suspending Gutierrez’s driver’s license for 180 days is reinstated.
Phylis J. Speedlin, Justice
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