Texas Department of Public Safety v. Herminio Pasillas ( 2019 )

NUMBER 13-17-00501-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
HERMINIO PASILLAS, Appellee.
On appeal from the County Court at Law No. 3
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Justice Perkes
Appellant Texas Department of Public Safety (Department) appeals the county
court’s judgment reversing the suspension of appellee Herminio Pasillas’s driver’s license
following his arrest for driving while intoxicated (DWI). See TEX. PENAL CODE ANN.
§ 49.04 (West, Westlaw through 2017 1st C.S.). In what we construe as one issue, the
Department contends that the county court erroneously reversed the administrative law
judge’s (ALJ) decision on the grounds raised by Pasillas.1 We reverse the county court’s
judgment and render judgment reinstating the suspension of Pasillas’s driver’s license.
I. BACKGROUND
At 11:11 p.m. on September 10, 2016, Harlingen Police Officer Arnoldo Maldonado
stopped Pasillas for driving a vehicle with an inoperable taillamp. Officer Maldonado
immediately called for assistance, suspecting Pasillas of DWI. Officer Julio Garza
arrived at 11:12 p.m. and was apprised on the reason for the stop. Officer Garza
observed Pasillas speaking “in a slurred speech”, and he detected a “moderate odor of
alcoholic beverage emitting from [Pasillas’s] breath.” Pasillas told Officer Garza he
drank two or three beers around 5 p.m. that evening. Officer Garza explained and
demonstrated the standardized field sobriety tests, before administering the tests to
Pasillas. Based upon Pasillas’s poor performance and Officer Garza’s overall
observations, Officer Garza arrested Pasillas for DWI. At 11:30 p.m., Officer Garza read
the DIC-24 statutory warnings to Pasillas, and Pasillas agreed to provide a breath
sample.2 At 12:07 a.m., Pasillas’s breath alcohol concentration level was 0.091.3
Following a procedural determination by the Department that Pasillas was
intoxicated while operating a motor vehicle in a public place, his driver’s license was
suspended. See TEX. TRANSP. CODE ANN. § 524.012 (West, Westlaw through 2017 1st
C.S.) (providing for the license suspension process). Pasillas requested an
1 Pasillas has not filed an appellee’s brief to aid in our disposition of this appeal.
2 The DIC-24 form contains a statutory warning delivered to a person prior to an officer’s request
for a specimen of breath or blood. 37 TEX. ADMIN. CODE § 17.4 (West, Westlaw through 2017 1st C.S.).
3The Texas Penal Code defines “intoxicated” as “having an alcohol concentration of 0.08 or more.”
TEX. PENAL CODE ANN. § 49.01 (2)(B); see also id. § 49.01(2)(b).
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administrative license revocation (ALR) hearing to contest the suspension of his driver’s
license. See id. at § 524.031 (providing for the procedure to contest). During the ALR
hearing, the Department moved to admit several documents into evidence: (1) a peace
officer’s sworn report; (2) a breath test technical supervisor’s affidavit; and (3) a Texas
forensic breath alcohol analytical report. All three documents were admitted, and the
latter two documents were admitted without objection from Pasillas. Pasillas objected to
the officer’s sworn report, arguing the report did not include completed page numbers and
was, therefore, untrustworthy and in violation of Texas Rule of Evidence 803.
Pasillas testified at the hearing, claiming he was not legally intoxicated. He stated
he last consumed alcohol over five hours before he was pulled over between 11 p.m. and
midnight. Pasillas also alleged the traffic stop was unduly prolonged because Officer
Garza took approximately forty-five minutes to arrive to assist Officer Maldonado.
Pasillas’s testimony ran contrary to the officer’s sworn report, which provided time stamps
for: Officer Maldonado’s traffic stop, Officer Garza’s arrival, Officer Garza’s reading of
the statutory warnings, and the breathalyzer reading.
The ALJ made four findings of fact and one conclusion of law. In her findings of
fact, the ALJ determined the officer (1) had reasonable suspicion to stop Pasillas; (2) had
probable cause to arrest Pasillas for DWI; and (3) had properly advised Pasillas of the
required warnings before asking him to submit a specimen of his breath. The ALJ also
found (4) Pasillas was “operating a motor vehicle in a public place in Texas with an alcohol
concentration of 0.08 grams or greater of alcohol per 210 liters of breath.” The ALJ
concluded the Department met its burden under the Texas Transportation Code and
suspended Pasillas’s license for ninety days. See TEX. TRANSP. CODE ANN. § 524.035.
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Pasillas appealed to Cameron County Court at Law No. 3. See TEX. TRANSP.
CODE ANN. § 524.041. Pasillas argued three issues: (1) the ALJ erred in admitting the
peace officer’s sworn report, and the ALJ’s ruling followed an “unlawful procedure” under
the Texas Government Code “to the extent that it allow[ed] an affidavit that refers to
unidentifiable attachments”; (2) the ALJ erred in finding against Pasillas because an
extrapolation defense, although not raised, existed; and (3) the ALJ erred in admitting the
breath test technical supervisor affidavit. Issues two and three were not argued during
the ALR hearing. The county court reversed, and this appeal followed.
II. DISCUSSION
A. Standard of Review
We review the county court’s substantial evidence review of the ALJ’s order de
novo. See Tex. Dep’t of Pub. Safety v. Struve, 79 S.W.3d 796, 800 (Tex. App.—Corpus
Christi 2002, pet. denied). As a consequence, we independently review the ALJ’s
decision under a substantial evidence standard. See id.; see also Mireles v. Tex. Dep’t
of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999) (per curiam). Whether substantial
evidence exists to support an ALJ’s order is a question of law. Tex. Dep’t of Pub. Safety
v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam). Courts must affirm the ALJ
findings if there is “more than a mere scintilla of evidence” to support them. See R.R.
Comm’n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792–93 (Tex. 1995)
(“Substantial evidence requires only more than a mere scintilla.”); see also Mireles, 9
S.W.3d at 131. The Texas Government Code provides the limited parameters for
reversal on review:
[A Court] shall reverse or remand the case for further proceedings if
substantial rights of the appellant have been prejudiced because the
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administrative findings, inferences, conclusions, or decisions are: (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 (F) arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion.
TEX. GOV’T CODE ANN. § 2001.174(2) (West, Westlaw through 2017 1st C.S.).
We therefore analyze: (1) whether substantial evidence supports the ALJ’s
findings, as required under the Texas Transportation Code, to subject Pasillas to a ninety-
day license suspension; and (2) whether the ALJ’s findings, although supported by
evidence, somehow prejudiced the substantial rights of Pasillas through unlawful
procedure, one of the enumerated grounds in the Texas Government Code. See TEX.
GOV’T CODE ANN. § 2001.174; TEX. TRANSP. CODE ANN. § 524.035(a).
B. Applicable Law and Analysis
At an ALR hearing to sustain a driver’s license suspension, the Department has
the burden to prove by a preponderance of the evidence that (1) there was “reasonable
suspicion to stop or probable cause to arrest” the person, and (2) the person had an
alcohol concentration of 0.08 or above while operating a motor vehicle in a public place.
TEX. TRANSP. CODE ANN. § 524.035(a).
“For a traffic stop to be justified at its inception, an officer must have an objectively
reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred.”
United States v. Spears, 636 F. App’x 893, 898 (5th Cir. 2016); see also Rodriguez v.
United States, 135 S. Ct. 1609, 1614 (2015) (“A seizure for a traffic violation justifies a
police investigation of that violation.”). It is a traffic violation for a person to operate a
vehicle not equipped with an operable taillamp that: “(1) illuminates the rear license
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plate; and (2) makes the plate clearly legible at a distance of 50 feet from the rear.” TEX.
TRANSP. CODE ANN. § 547.322 (requiring vehicles to have taillamps); id. § 547.302
(requiring taillamps be illuminated at nighttime); see, e.g., United States v. Castro, 647 F.
App’x 388, 391 (5th Cir. 2016) (holding a defendant driving with a broken taillamp
amounted to reasonable suspicion to support a traffic stop); see also Walter v. State, 28
S.W.3d 538, 542 (Tex. Crim. App. 2000).
Following a valid traffic stop, probable cause for a warrantless arrest exists if “the
facts and circumstances within the arresting officer’s knowledge, and of which he has
reasonably trustworthy information, are sufficient to warrant a prudent man in believing
that the person arrested had committed or was committing an offense.” Amador v. State,
275 S.W.3d 872, 878 (Tex. Crim. App. 2009). The test for probable cause is an objective
one, requiring a consideration of the totality of the circumstances facing the arresting
officer at the time of the arrest. Id.
Generally, a law enforcement officer’s sworn report, which may include an officer’s
reasonable suspicion for a stop and probable case for arrest, is not excluded as evidence
in ALR proceedings. See Tex. Dep’t of Pub. Safety v. Caruana, 363 S.W.3d 558, 564
(Tex. 2012); see also TEX. R. EVID. 803(8) (providing the exception to hearsay for public
records). Law enforcement observations are not presumed unreliable in ALR
proceedings. See Caruana, 363 S.W.3d at 564. Therefore, the onus is on the party
objecting to the admittance of an officer’s sworn report to “demonstrate that the source of
information or other circumstances indicate a lack of trustworthiness.” Id.; see TEX. R.
EVID. 803(8)(B). Further, should the ALJ admit objected to evidence of an officer’s sworn
report, we review that decision for abuse of discretion and reverse only if the court “acted
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without reference to any guiding rules and principles.” Tex. Dep’t of Pub. Safety v.
Jennings, 1 S.W.3d 348, 351 (Tex. App.—Corpus Christi 1999, no pet.).
Here, Pasillas did not dispute the existence of reasonable suspicion to support the
traffic stop: an inoperable taillamp. See TEX. TRANSP. CODE ANN. § 547.302; see also
Castro, 647 F. App’x at 391. Pasillas, however, argued during the ALR proceedings that
he was not intoxicated at the time of his encounter with law enforcement, and,
consequently, that there was insufficient probable cause to arrest him for DWI. At the
ALR hearing, Pasillas objected to the admittance of the officer’s sworn report, which
detailed the reasonable suspicion for the stop and probable cause for Pasillas’s arrest.
In the county court, Pasillas argued the officer’s sworn report was admitted “through
unlawful procedure” because the report lacked proper pagination. The only page in the
report without a page number is entitled “DIC-24, Statutory Warnings.” Because the
DIC-24 warnings could have been added to or altered prior to the sworn statement,
Pasillas argued the entire officer’s sworn report indicated a lack of trustworthiness and
was inadmissible hearsay under the Texas Rules of Evidence. See TEX. R. EVID. 802;
see also TEX. R. EVID. 803(8).
The Department argued that missing pagination went to the weight of the evidence,
not its admissibility. See Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300, 1307 (5th Cir.
1991) (“[The] general complaint that the reports are incomplete and inaccurate are
matters going to the weight of this evidence and not its admissibility.”). Moreover,
throughout the paginated portion of the officer’s sworn report, the officer made repeated
references to the DIC-24: (1) he stated he “read the statutory warnings[,] asking
[Pasillas] for a breath sample” on page three; (2) he checked off a box for “DIC-24” under
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the column for “Other Paper Work & Evidence Submitted” on page seven; and (3) he
notated on page eight that he read the DIC-24 warnings at 11:30 p.m. in English, Pasillas
stated he understood, and the DIC-24 warnings were read to Pasillas on video. The
frequent references to the DIC-24 throughout the officer’s sworn report supported the
Department’s position that the lack of pagination on the DIC-24 itself was an oversight
and not an indicator of untrustworthiness. The ALJ, as the factfinder, agreed. See
Ceres Gulf, Inc. v. Dir., Office of Worker's Comp. Programs, 683 F.3d 225, 228 (5th Cir.
2012) (holding the ALJ determined the credibility of the witnesses and facts presented).
The ALJ’s decision here is supported by the same rule of evidence that Pasillas
argued should preclude the officer’s sworn report. See TEX. R. EVID. 803(8); Jennings,
1 S.W.3d at 351. Because Pasillas “fail[ed] to demonstrate . . . a lack of trustworthiness,”
as he was required to do so under Rule 803(8), we hold the ALJ’s admission of the
officer’s sworn report over Pasillas’s objection was not an abuse of discretion nor made
“through unlawful procedure” as Pasillas alleged. TEX. GOV’T CODE ANN. § 2001.174;
TEX. R. EVID. 803(8).
In addition to permitting the officer’s sworn report over Pasillas’s objection, the ALJ
chose to believe the officer’s recorded timeline of events over Pasillas’s recollection.
See Castro, 227 S.W.3d at 788. Pasillas’s assertion that there was no probable cause
for his arrest because he was not intoxicated conflicted with the officer’s observations that
Pasillas appeared disorderly, swayed when he stood and walked, had blood-shot and
watery eyes, smelled of alcohol, and failed all three field sobriety tests. See, e.g.,
Oringderff v. State, 528 S.W.3d 582, 590 (Tex. App.—Texarkana 2017, no pet.) (holding
that poor performance on field sobriety tests and the odor of alcohol emitting from the
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defendant was sufficient probable cause to arrest the defendant); Polly v. State, 533
S.W.3d 439, 442 (Tex. App.—San Antonio 2016, no pet.) (holding probable cause to
arrest when the defendant’s breath smelled of alcohol, the defendant failed field sobriety
tests, and the defendant admitted to consuming alcohol prior to driving). Similarly, the
breath test, demonstrating Pasillas had a blood alcohol level of 0.09, is more than a mere
scintilla of evidence to support the ALJ’s finding that Pasillas had an alcohol concentration
of 0.08 or more while driving. See Mireles, 9 S.W.3d at 132.
We hold there existed substantial evidence to support the ALJ’s decision to
suspend Pasillas’s driver’s license. See TEX. GOV’T CODE ANN. § 2001.174(2)(E).
Additionally, the record does not support a position that the ALJ’s findings, inferences,
conclusions, or decisions were “made through unlawful procedure.” See id.
§ 2001.174(2)(C). We sustain the Department’s sole issue on appeal.
III. PASILLAS’S UNPRESERVED ARGUMENTS
In the county court, Pasillas also argued that the ALJ erred in finding against him
because an extrapolation defense existed, although he did not argue the defense before
the ALJ. Pasillas further argued that the ALJ erred in admitting the breath test technical
supervisor’s affidavit, although he did not object to its admittance during the ALR hearing.
To the extent the county court considered these issues in its review, that was improper;
Pasillas was required to timely raise these issues during the ALR hearing, and his failure
to do so waived the issues for appeal in the county court. See TEX. R. APP. P. 33.1; see,
e.g., Stowers v. Tex. Dep’t of Pub. Safety, 465 S.W.3d 257, 265 (Tex. App.—Houston
[1st Dist.] 2015, no pet.) (holding an objection of a lab report’s admittance during closing
arguments in an ALR hearing did not preserve the issue for review in the county court);
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see also Balkum v. Tex. Dep’t of Pub. Safety, 33 S.W.3d 263, 266–67 (Tex. App.—El
Paso 2000, no pet.) (holding a sixth amendment complaint was waived because it was
not raised during the ALR hearing); see generally Mireles, 9 S.W.3d at 131 (“Nothing in
the statutory framework specifically mandates extrapolation evidence.”).
IV. CONCLUSION
We conclude that the county court erred by reversing the ALJ’s ruling to sustain
the license suspension. We reverse the judgment of the county court at law and render
judgment reinstating the suspension of Pasillas’s driver’s license.
GREGORY T. PERKES
Justice
Delivered and filed the
25th day of April, 2019.
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