Opinion
No. 04-05-00167-CV
Delivered and Filed: February 8, 2006.
Appeal from the County Court at Law No. 2, Webb County, Texas, Trial Court No. 2004-CV3-000016-L2, Honorable Jesus Garza, Judge Presiding.
Reversed and Rendered.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
The Texas Department of Public Safety appeals the trial court's order reversing an administrative law judge's order suspending Francisco Javier Duron's driver's license. The Department contends that the trial court erred because: (1) the order granting a pre-trial motion to suppress in Duron's criminal case is not relevant to the order suspending his driver's license; and (2) substantial evidence supported the ALJ's order, including the ALJ's findings that the arresting officer had reasonable suspicion to stop Duron and probable cause to arrest him. In his brief, Duron concedes that the trial court erred in relying on the order granting the pre-trial motion to suppress, see Tex. Transp. Code Ann. § 724.048 (Vernon 1999); however, Duron contends that the trial court's order should be upheld based on the absence of substantial evidence to support the ALJ's decision. Because the issues in this appeal involve the application of well-settled principles of law, we reverse the trial court's order and render judgment affirming the ALJ's order in this memorandum opinion.
We review the trial court's judgment de novo. Tex. Dep't of Pub. Safety v. Pruitt, 75 S.W.3d 634, 640 (Tex.App.-San Antonio 2002, 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). Substantial evidence exists if the record as a whole contains more than a scintilla of evidence to support the challenged finding. Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). 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).
Trooper Joshua Coleman testified that Duron "came completely out of the lane he was in; crossed over the stripe — the center-striped line, back into the original lane he was driving in; back onto the shoulder — he almost struck that barrier again; back into the original lane that he was driving in." The record contains Trooper Coleman's diagram of the incident. Although Trooper Coleman stated that the only violation for which he stopped Duron was failure to maintain a single lane, Trooper Coleman further testified that Duron also violated the law by driving on the shoulder of the road. Trooper Coleman's report stated that Duron had a very strong odor of alcohol on his breath, red, bloodshot eyes, slurred and incoherent speech, inattentive and sluggish behavior, and Duron admitted drinking.
Trooper Coleman's testimony and report were substantial evidence to support the ALJ's finding that reasonable suspicion existed to stop Duron's vehicle and probable cause existed to arrest him. See Martinez v. State, 29 S.W.3d 609, 611-12 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (holding reasonable suspicion existed to stop vehicle for failing to maintain single lane and noting that stop also would be justified by violation for driving on shoulder); Tex. Transp. Code Ann. §§ 545.058, 545.060 (Vernon 1999); see also Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001) (noting standard is objective and there need only be an objective basis for a stop); Littleton v. State, No. 13-04-005-CR, 2005 WL 1983984, at *2 (Tex.App.-Corpus Christi Aug. 11, 2005, no pet.) (noting court is not limited to violations listed by officer) (not designated for publication); Tyler v. State, 161 S.W.3d 745, 748-50 (Tex.App.-Fort Worth 2005, no pet.) (noting officer's testimony supported stop for both failure to maintain a single lane and driving on shoulder). Although Duron argues Trooper Coleman's testimony was conflicting and that Trooper Coleman never stated that Duron's driving was unsafe, the trial court may not set aside the ALJ's ruling based on conflicting testimony. Fecci, 989 S.W.2d at 139. Furthermore, Trooper Coleman's testimony that Duron almost struck a barrier is substantial evidence that Duron's driving was unsafe.
With regard to the third element required to suspend a driver's license, the DIC-24 form that was introduced into evidence and Trooper Coleman's report both state that Duron was requested to submit to the taking of a breath specimen after he was arrested. The final element the Department was required to prove is that Duron refused to submit to the taking of a specimen. The refusal could be either an express refusal or an intentional failure to give the specimen. See Tex. Transp. Code Ann. § 724.032(a) (Vernon Supp. 2004-05). Duron argues that the trial court could have found that he did not intentionally fail to provide a specimen and offers alternative theories as to the reason the sample he provided could have been found deficient. In concluding that Duron refused to submit the specimen, however, the ALJ necessarily rejected these alternative theories in favor of finding that Duron intentionally failed to give the specimen. The ALJ's decision may not be set aside because there are conflicting theories, and we may not substitute our resolution of any conflicts for the ALJ's resolution. Fecci, 989 S.W.2d at 139.
Trooper Coleman's report stated that field sobriety tests were not administered because Duron's state of intoxication made those tests unsafe. In addition, Duron was too intoxicated to follow Trooper Coleman's instructions for the administration of a portable breath test at the scene. After being transported to jail, Trooper Coleman's report indicated that Duron could not answer questions on the standard interview form because of his intoxicated state, and the results of the breath test showed a deficient sample.
The ALJ may have believed Duron was too intoxicated to provide the sample, thereby refusing to submit to its taking. See Malkowsky v. Tex. Dep't of Public Safety, 53 S.W.3d 873, 875 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (holding failure to produce an adequate breath sample based solely on one's voluntary intoxication is a refusal under section 724.032 because it is an intentional failure to give the specimen). Accordingly, substantial evidence supports the ALJ's finding that Duron refused to submit to the taking of a breath sample.
Conclusion
The trial court's order is reversed and judgment is rendered affirming the ALJ's order.