Opinion
No. 04-03-00896-CV
Delivered and Filed: May 11, 2005.
Appeal from the County Court at Law, Medina County, Texas, Trial Court No. 1585, Honorable Vivian Torres, Judge Presiding.
Reversed; Order of License Suspension Reinstated.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee BRYAN MARION, Justice.
MEMORANDUM OPINION
The Texas Department of Public Safety (the Department) appeals the judgment of the trial court which reverses an administrative law judge's order suspending David Dayton Burrer's driver's license. Burrer was arrested for driving while intoxicated and his license was suspended for refusal to submit a breath specimen. Becaus substantial evidence supports the administrative law judge's suspension order, we reverse the judgment of the trial court and reinstate the license suspension order.
Factual and Procedural Background
DPS Trooper Roman H. Macias was dispatched to Medina County for a two-vehicle automobile accident involving Burrer and Jose Juarez. The truck driven by Burrer was struck at a perpendicular angle by a vehicle driven by Juarez. As a result, Burrer's truck was totaled. Juarez was issued a traffic citation for the fault of the accident.
At the scene, Macias spoke with Burrer as part of the investigation of the accident. Macias noticed that Burrer emitted a strong odor of alcohol, had glassy eyes and slurred speech, and had slowed and staggered movements. Burrer admitted that he had consumed a few beers at a party earlier in the evening. Macias administered the horizontal gaze nystagmus test (HGN) and observed five of the six points of nystagmus in Burrer. Although Burrer completed this test, he declined to take any more. Macias then placed Burrer under arrest for DWI. Burrer was asked to provide a breath specimen, which he refused.
The Department suspended Burrer's driver's license for his refusal to give a breath specimen. See Tex. Transp. Code Ann. § 724.035(a)(1) (Vernon Supp. 2004-05). Burrer requested an administrative hearing to contest the automatic suspension of his driver's license. See id. § 724.041. At the hearing, Macias testified about the events leading up to Burrer's arrest. Burrer cross-examined Macias and introduced six photographs depicting the vehicles involved in the accident. The administrative law judge (ALJ) found that there was probable cause to arrest Burrer on suspicion of driving while intoxicated and found that Burrer refused to provide a breath specimen. The ALJ overruled Burrer's contest and authorized his license suspension.
Burrer appealed the ALJ's decision to the County Court at Law of Medina County. The county court ruled that the ALJ's findings, inferences, conclusions, and decisions were not reasonably supported by substantial evidence and reversed Burrer's license suspension. The Department appeals the county court's decision on two issues.
Due Process
In its first issue, the Department argues the county court erred in impliedly holding the ALJ violated Burrer's due process rights under the United States and Texas Constitutions by limiting the scope of his cross-examination of Trooper Macias. Specifically, Burrer complained in the trial court that the ALJ denied him his right to cross-examine Macias about who caused the automobile collision and about whether Macias took this into consideration in determining probable cause to arrest Burrer for DWI.
At the administrative hearing, Burrer's counsel, Patrick Filyk, asked Macias, "[p]art of what you do in your job is to reconstruct how the accident occurred. Is that right?" The Department objected to Burrer's cross-examination on the ground that the subject matter was irrelevant. The objection was sustained by the ALJ after the following exchange:
FILYK: Well, Your Honor, certainly who caused the accident is at issue here.
ALJ: If he used it in determining probable cause, it is. If not, it isn't. You can ask him that. I mean, did he use the Defendant's driving or the possibility that he may have caused the accident in determining probable cause for intoxication.
FILYK: Trooper, when you arrived at the scene did you know who had caused the accident?
MACIAS: (No response)
FILYK: I'm talking about when you immediately got there?
MACIAS: No, sir.
FILYK: Was it important to you — and again, I stress that I'm talking about the time that you immediately approached the scene — was it important to you to determine who had caused the accident in terms of how you were going to conduct your investigation and what kind of inquiry you were going to make? Would that be a fair statement to make?
MACIAS: No sir. I — we arrive on scene. We investigate the accident. And we investigate all the (inaudible). We take pretty much the same measures on every single one.
FILYK: Okay. If you had determined that one person, rather than the other had caused the accident would that perhaps cause you to investigate that person more thoroughly?
MACIAS: That in itself? No, sir.
FILYK: That in combination with other things?
DEP'T.'S
COUNSEL: He still hadn't said that it went to probable cause for the DWI.
ALJ: Well, let's ask him that, counselor.
FILYK: Well, I would first like to establish that — my client did not cause the accident. Isn't that correct?
DEP'T.'S
COUNSEL: I'm going to object again to relevance.
FILYK: This is just a predicate. I am going to go through this very quickly.
ALJ: Trooper Macias, what I want to know is did you use the Defendant's driving and possibly causing the accident or not causing the accident — did you use that in any way in making your determination for probable cause to arrest in this case?
MACIAS: No, ma'am.
ALJ: Okay.
FILYK: Your Honor, I'd like to be able to conduct my own examination of this witness. With all due respect to the court, I'd like to be able to have my hearing and have my opportunity to —
ALJ: But this is not an accident investigation . . . it's a DWI . . . [a]nd the only way it's going to be relevant to this case is if . . . Macias used it in making his determination on one of the issues . . . that are before this Court, reasonable suspicion to stop or probable cause to arrest . . . [h]e just told me he did not use that in making his determination for probable cause.
FILYK: Certainly, Your Honor, I should be permitted to explore these issues. I mean —
ALJ: If it's not to an issue that's relevant? I —
FILYK: Simply because the witness says that it's not an issue that's relevant? I mean — what are — does the hearing come down to we just ask the trooper whether something —
ALJ: The hearing comes down to, counselor —
FILYK: — was relevant?
ALJ: — that there are certain issues that need to be determined here. And if it doesn't go to his probable cause to arrest we don't entertain whose fault it was for an accident. This is not an accident investigation . . . If you can show this Court that it is relevant to the issue of probable cause for intoxication, you may continue. Otherwise the objection is sustained.
On appeal to the county court, Burrer argued that based upon the above interaction, the ALJ circumscribed his right of cross-examination and interjected herself into the witness examination through leading questions calculated to elicit a specific response from the witness. The county court reversed the suspension of Burrer's license.
The right to cross-examination is a fundamental due process right protected by both the United States Constitution and the Texas Constitution. See U.S. Const. Amend. XIV, § 1; Tex. Const. art. I, § 19. The right to cross-examine adverse witnesses and to examine and rebut all evidence is not confined to court trials, but applies also to administrative hearings. See Richardson v. City of Pasadena, 513 S.W.2d 1, 4 (Tex. 1974). "Cross-examination is a safeguard essential to a fair trial and a cornerstone in the quest for truth . . . [T]he right to cross-examine a witness is a substantial one, and it is error to so restrict it as to prevent the cross-examining party from going fully into all matters connected with the examination in chief." Davidson v. Great Nat'l Life Ins. Co., 737 S.W.2d 312, 314 (Tex. 1987). The right to cross-examination is not unfettered, however, and is generally limited to matters that are relevant to the issues at hand. See Tex. R. Evid. 611(b) (witness may be cross-examined on any matter relevant to any issue in the case). Evidence is relevant only if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. See Tex. R. Evid. 401. Evidence that is not relevant is inadmissable. See Tex. R. Evid. 402. Notably, the State Office of Administrative Hearings has established rules limiting irrelevant testimony. An administrative law judge has the authority and duty to limit irrelevant, immaterial, and unduly repetitious testimony and reasonably limit the time for presentations. See 1 Tex. Admin. Code § 155.15(b)(7) (West 2005); 1 Tex. Admin. Code § 159.41(1) (West 2005).
Macias was the officer on the scene who determined whether there was probable cause to arrest Burrer for DWI; therefore, Burrer had the right to cross-examine Macias. See U.S. Const. Amend. XIV, § 1; Tex. Const. art. I, § 19. However, the record shows that when Macias was asked by the ALJ if he had taken Burrer's driving and possible culpability in causing the accident into consideration for probable cause to arrest him, Macias responded negatively. Under the circumstances, the ALJ was within her discretion to limit questioning on relevancy grounds. See Tex. R. Evid. 401. Moreover, contrary to his complaints, the record further shows Burrer did have an opportunity to question Macias about causation of the accident. Burrer asked, "[w]as it important to you to determine who had caused the accident in terms of how you were going to conduct your investigation and what kind of inquiry you were going to make?" Macias answered, "No sir." Therefore, since Macias did not take the fault of the accident into consideration in determining probable cause for intoxication, the issue was irrelevant. See Tex. R. Evid. 611(b). The ALJ properly limited Burrer's line of questioning to prevent Macias from testifying on irrelevant issues. See 1 Tex. Admin. Code § 155.15(b)(7) (West 2005); 1 Tex. Admin. Code § 159.41(1) (West 2005).
Accordingly, the trial court erred if it based its decision to reverse the license suspension on Burrer's inability to cross-examine Macias on the irrelevant issue of fault in causing the accident. See Tex. R. Evid. 402. The Department's first issue is sustained.
Weight of the Evidence
The Department further complains the ALJ's findings, inferences, conclusions, and decisions were reasonably supported by substantial evidence considering the record as a whole, and therefore the county court erred by substituting its judgment for that of the ALJ on the weight and credibility of the evidence.
Courts review administrative license suspensions under the substantial evidence standard of review. See Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999); Tex. Dep't of Pub. Safety v. Jackson, 76 S.W.3d 103, 106 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Under this standard, the reviewing court cannot replace the ALJ's judgment with its own. See R.R. Comm'n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995); Jackson, 76 S.W.3d at106. If the ALJ's decision is supported by more than a scintilla of evidence, that decision must be upheld. See Torch Operating Co., 912 S.W.2d at 792-93. However, a trial court may reverse an ALJ's determination if a substantial right of the appellant has been prejudiced because the ALJ's findings, inferences, conclusions, or decisions are not reasonably supported by substantial evidence considering the record as a whole. See Tex. Gov't Code Ann. § 2001.174(2)(E) (Vernon 2000).
The court of appeals reviews the trial court's substantial evidence review de novo. Tex. Dep't of Pub. Safety v. Valdez, 956 S.W.2d 767, 769 (Tex.App.-San Antonio 1997, no pet.). In determining whether the ALJ's decision was supported by substantial evidence, this court is governed by the following principles: (1) the trial court will hear and consider evidence to determine whether reasonable support for the ALJ's order exists, but the ALJ remains the primary fact finding body, and the question for the trial court is strictly one of law; (2) the trial court may not substitute its judgment for that of the ALJ on controverted issues of fact; (3) if the ALJ heard substantial evidence that would support either an affirmative or negative finding, the trial court must allow the ALJ's order to stand, even if the court would have differed with the result; (4) the trial court may not set aside the ALJ's ruling merely because there was conflicting or disputed testimony; and (5) the trial court is concerned only with the reasonableness of the ALJ's order not its correctness. Texas Dep't of Pub. Safety v. Fecci, 989 S.W.2d 135, 139 (Tex.App.-San Antonio 1999, pet. denied).
To suspend a driver's license, the Texas Transportation Code requires that: (1) reasonable suspicion or probable cause existed to stop or arrest the driver; (2) probable cause existed to believe that the driver was operating a motor vehicle in a public place while intoxicated; (3) the driver was placed under arrest by the officer and was requested to submit to the taking of a specimen; and (4) the driver refused to submit to the taking of a specimen on request of the officer. See Tex. Transp. Code Ann. § 724.042-.043 (Vernon Supp. 2004-05). "Probable cause exists where the police have reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense." Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App. 1997). "Probable cause deals with probabilities; it requires more than a mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence." Id. "Intoxicated" means (1) not having the normal use of mental or physical faculties by reason of introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (2) having an alcohol concentration of 0.08 or more. See Tex. Penal Code § 49.01 (Vernon 2003). In addition, the technique employed in the HGN test is a reliable indicator of intoxication. See Emerson v. State, 880 S.W.2d 759, 768-69 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 931 (1994).
To suspend Burrer's license, the Department was not required to prove that he was driving while intoxicated. It needed only to prove there was probable cause to believe that Burrer was driving while intoxicated. See Tex. Transp. Code Ann. § 724.042-.043. As part of the investigation, Macias evaluated Burrer, who, regardless of fault, was the driver of one of the vehicles involved in the accident. See id. In his sworn report, Macias surmised that Burrer had been driving while intoxicated because he emitted a strong odor of alcohol, had glassy eyes and slurred speech, and his movements were slowed and staggered. Moreover, the record reveals Burrer admitted to drinking a few beers before the accident. This gave Macias reasonable suspicion to investigate Burrer further. See Guzman, 955 S.W.2d at 87. Macias also noted in his sworn report that his reasonable suspicion evolved into probable cause when he observed five out of the six points of the HGN test and Burrer refused to provide a breath specimen. Id.
Considering the record as a whole, the ALJ's findings, inferences, conclusions, and decisions are reasonably supported by substantial evidence. See Tex. Gov't. Code Ann. § 2001.174(2)(E); Fecci, 989 S.W.2d at 139. Although Burrer only completed one field sobriety test, the technique employed in using the HGN test is a reliable indicator of intoxication. See Emerson, 880 S.W.2d at 768-69. Moreover, since the record reflects the ALJ's decision is supported by more than a scintilla of evidence, that decision must be upheld. See Torch Operating Co., 912 S.W.2d at 792-93. The county court improperly replaced the ALJ's decision with its own. See id. at 792; Jackson, 76 S.W.3d at106.
The trial court's judgment is reversed and the order suspending Burrer's license is reinstated.