Texas Cases August 18, 2022: Tex. Dep't of Pub. Safety v. Marron

Case Description

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On Appeal from the County Criminal Court at Law No. 8 Harris County, Texas Trial Court Cause No. 2334323Y

Panel consists of Chief Justice Christopher and Justices Wise and Jewell.

MEMORANDUM OPINION

KEVIN JEWELL, JUSTICE

Appellee David A. Marron's driver's license was suspended after he refused to provide a blood or breath sample while being investigated for driving while intoxicated. Marron appealed the administrative suspension decision to the county criminal court at law, which reversed the suspension after finding that the law enforcement officer who made the initial traffic stop lacked reasonable suspicion to detain Marron. Appellant Texas Department of Public Safety ("DPS") challenges the county court at law's order. Because we conclude that substantial evidence

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supports the administrative decision, we reverse and render judgment reinstating the administrative decision.

Background

The following is based on testimony admitted during a hearing before an administrative law judge ("ALJ"). While on patrol in a residential area at approximately 11:30 one night, Harris County Deputy Constable Mariah Martinez observed Marron failing to maintain a single lane of travel for a "couple" of blocks. At one point, Marron almost struck a concrete barrier while driving over a bridge before swerving "real sharp" back into his lane of traffic. Marron continued to fail to maintain a single lane of travel.

Based on Marron's "very erratic" driving, Deputy Martinez stopped Marron to investigate. Deputy Martinez smelled alcohol coming from Marron's vehicle and determined that he was a suitable candidate for a field sobriety test. Marron was very belligerent and non-compliant, and he refused to perform the field sobriety test. Deputy Martinez called for backup and, with another officer's assistance, removed Marron from his vehicle and transported him to an "intox" facility. Marron refused to provide a breath or blood specimen.

Deputy Martinez's testimony was consistent with her post-incident report, which was also admitted into evidence during the hearing:

I conducted a traffic stop on a black in color BMW bearing TX plate [redacted]. Vehicle was traveling north bound on Hirshe St and failed to maintain a single lane of travel for several blocks. Defendant later identified by a TX DL [redacted] as said above; almost struck the concrete barrier going over the bridge and swerved back onto his lane but continued to fail to maintain a single lane of travel. Upon making contact with the defendant at the 4200 block of Gillespie where the defendant stopped, I observed the defendant to have a slurred speech and blood shot red eyes. Defendant became belligerent and

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uncooperative. Defendant refused to step out of the vehicle several times when asked, and a backup unit had to be requested to assist the defendant out of the vehicle. Defendant was transported to JPC to conduct FST in which he refused. Defendant also refused a blood specimen and refused a specimen of breath.

DPS administratively suspended Marron's driver's license. See Tex. Transp. Code § 724.035(a)(1) ("If a person refuses the request of a peace officer to submit to the taking of a specimen, the department shall . . . suspend the person's license to operate a motor vehicle on a public highway for 180 days."). Marron appealed his suspension by requesting a hearing before an ALJ. See id. § 724.041. During the hearing, Marron's counsel advised the judge that he was limiting his appeal to the issue of reasonable suspicion. The judge heard Deputy Martinez's testimony, discussed above, and admitted exhibits. The ALJ found that the following facts were proven by a preponderance of the evidence:

1) On November 22, 2020, reasonable suspicion to stop the Defendant existed, in that Harris County Deputy Constable M. Martinez observed Defendant operating a motor vehicle on Hirshe Street in Harris County, Texas, and saw Defendant fail to maintain a single lane of travel on multiple occasions. Deputy Martinez called for backup and Deputy R. Clarke arrived on the scene.

2) On the same date, probable cause to arrest the Defendant existed, in that probable cause existed to believe that Defendant was operating a motor vehicle in a public place while intoxicated, because in addition to the facts in No. 1: Officer Clarke observed an odor of an alcoholic beverage coming from Defendant's vehicle and that Defendant had bloodshot, glossy eyes and slurred speech. Defendant refused to exit his vehicle and had to be forcibly removed by the deputies.

3) Defendant was placed under arrest and was properly asked to submit a specimen of breath or blood.

4) After being requested to submit a specimen of breath or blood, Defendant refused.

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Based on those facts, the ALJ concluded that Marron's license was subject to a suspension for 180 days. See id. § 724.035; see also id. §§ 724.042 ("Issues at Hearing"), 742.043 ("Findings of Administrative Law Judge").

Marron appealed to the county criminal court at law, arguing that the ALJ's findings were not supported by substantial evidence. The county court at law ruled that Deputy Martinez "lacked reasonable suspicion to detain [Marron]." Therefore, the court held that DPS did not meet its burden of proof, reversed and vacated the suspension, and ordered Marron's license reinstated.

DPS appeals.

Standard of Review and Issues Presented

A person whose driver's license is suspended following an administrative hearing is entitled to judicial review of that decision. See id. § 524.041. Judicial review of an administrative suspension is governed by a "substantial evidence standard." Mireles v. Tex. Dep't of Pub. Safety , 9 S.W.3d 128, 131 (Tex. 1999) (per curiam). When reviewing an administrative decision under the substantial evidence rule, the reviewing court "may affirm the [administrative] decision in whole or in part." Tex. Gov't Code § 2001.174(1). The reviewing court must reverse or remand the case if the appellant's substantial rights were prejudiced because, among other enumerated reasons, the administrative findings, inferences, conclusions, or decisions were "not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole." Id. § 2001.174(2)(E); see also Tex. Dep't of Pub. Safety v. Guajardo , 970 S.W.2d 602, 604-05 (Tex. App.-Houston [14th Dist.] 1998, no pet.).

Whether substantial evidence supports an administrative order is a question of law. Tex. Dep't of Pub. Safety v. Alford , 209 S.W.3d 101, 103 (Tex. 2006) (per

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curiam). The dispositive issue for the reviewing court is not whether the administrative order was correct, but "whether the record demonstrates some reasonable basis for the agency's action." Mireles , 9 S.W.3d at 131. We presume that the ALJ's decision is supported by substantial evidence, and it is the appellant's burden to prove otherwise. Tex. Dep't of Pub. Safety v. Walter , 979 S.W.2d 22, 27 (Tex. App.-Houston [14th Dist.] 1998, no pet.). Furthermore, the reviewing court must affirm the administrative decision if there exists more than a scintilla of supporting evidence, "even if the evidence preponderates against [the decision]." Mireles , 9 S.W.3d at 131. A court applying the substantial evidence standard of review may not substitute its judgment for that of the agency. See Tex. Gov't Code § 2001.174; Mireles , 9 S.W.3d at 131.

DPS argues in two related issues that the county court at law's judgment violates the above standard of review because (1) more than a scintilla of evidence supported the ALJ's decision, and (2) the county court substituted its judgment for the ALJ's. We address both issues together.

Analysis

To uphold the suspension of Marron's driver's license, the ALJ was required to find that DPS proved four elements by a preponderance of the evidence at the administrative hearing: (1) the officer had reasonable suspicion or probable cause to stop or arrest the person; (2) the officer had probable cause to believe that the person was operating a motor vehicle in a public place while intoxicated; (3) the officer arrested the driver and asked him to submit to the taking of a breath specimen; and (4) the driver refused to submit to the taking of a specimen on request by the officer. See Tex. Transp. Code §§ 724.042, 724.043; Tex. Dep't of Pub. Safety v. Schleisner , 343 S.W.3d 292, 295 (Tex. App.-Houston [14th Dist.] 2011, no pet.).

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In today's appeal, the only contested element is the first: whether Deputy Martinez had reasonable suspicion to stop Marron.

A law enforcement officer may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, "that the person detained actually is, has been, or soon will be engaged in criminal activity." Tex. Dep't of Pub. Safety v. Guajardo , 970 S.W.2d 602, 607 (Tex. App.-Houston [14th Dist.] 1998, no pet.) (citing Woods v. State , 956 S.W.2d 33, 38 (Tex. Crim. App. 1997)); see also Tex. Dep't of Pub. Safety v. Chang , 994 S.W.2d 875, 877 (Tex. App.-Austin 1999, no pet.). If a law enforcement officer has a reasonable basis for suspecting a person has committed a traffic offense, the officer may legally initiate a traffic stop. McVickers v. State , 874 S.W.2d 662, 664 (Tex. Crim. App. 1993); Chang , 994 S.W.2d at 877. DPS is not required to show that a traffic offense was actually committed, but only that the officer reasonably believed that a violation was in progress. Tex. Dep't of Pub. Safety v. Fisher , 56 S.W.3d 159, 163 (Tex. App.-Dallas 2001, no pet.); see also Valencia v. State , 820 S.W.2d 397, 400 (Tex. App.-Houston [14th Dist.] 1991, pet. ref'd).

Deputy Martinez stopped Marron because he failed to maintain a single lane of travel. Transportation Code section 545.060(a) provides:

(a) An operator on a roadway divided into two or more clearly marked lanes for traffic:

(1) shall drive as nearly as practical entirely within a single lane; and

(2) may not move from the lane unless that movement can be made safely.

Tex. Transp. Code § 545.060(a). It is a misdemeanor to violate section 545.060. See id. § 542.301 ("A person commits an offense if the person performs an act

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prohibited or fails to perform an act required by this subtitle. . . . Except as otherwise provided, an offense under this subtitle is a misdemeanor.").

The Court of Criminal Appeals has construed section 545.060 and a plurality of that court held that, despite the statute's use of the conjunctive, section 545.060 creates two separately actionable offenses: "it is an offense to change marked lanes when it is unsafe to do so; but it is also an independent offense to fail to remain entirely within a marked lane of traffic so long as it remains practical to do so, regardless of whether the deviation from the marked lane is, under the particular circumstances, unsafe." Leming v. State , 493 S.W.3d 552, 559-60 (Tex. Crim. App. 2016) (plurality op.).

As this court has noted, Leming 's plurality opinion is not binding precedent. See State v. Bernard , 503 S.W.3d 685, 691 (Tex. App.-Houston [14th Dist.] 2016), vacated on other grounds , 512 S.W.3d 351 (Tex. Crim. App. 2017) (per curiam). A prior opinion from this court, interpreting section 545.060, held that the State must prove both prongs of the statute, not one or the other. See Eichler v. State , 117 S.W.3d 897, 900-01 (Tex. App.-Houston [14th Dist.] 2003, no pet.).

Regardless whether Leming is binding or merely persuasive authority, the evidence supported the ALJ's finding that Deputy Martinez had reasonable suspicion to stop Marron for a violation of section 545.060. Deputy Martinez testified that she personally observed Marron's vehicle swerving and failing to maintain a single lane of travel for several, or at least a "couple" of, blocks. This was sufficient to satisfy the first prong. See, e.g. , Leming , 493 S.W.3d at 561 (evidence that officer personally observed that appellant several times swerved within his own lane, if not out of it, and that officer knew from dispatch that a caller saw appellant's car swerving was sufficient information to justify stop for failure to maintain single lane of travel);

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see also Tex. Dep't of Pub. Safety v. Peltier , No. 14-96-01364-CV, 1998 WL 208991, at *6 (Tex. App.-Houston [14th Dist.] Apr. 30, 1998, no pet.) (not designated for publication).

Further, not only did Marron fail to maintain a single lane of travel for several blocks, but Deputy Martinez also saw Marron narrowly avoid hitting a concrete barrier on a bridge and then sharply swerve back into his lane. This is sufficient to satisfy the second prong. See, e.g. , Cook v. State , 63 S.W.3d 924, 928 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd) (even in the absence of other evidence that driver's actions were unsafe, driver's constant weaving into adjacent lane of traffic was "sufficiently unsafe so that the officer was not required to wait until appellant placed himself or others in immediate peril as a result of his erratic driving") (internal quotation omitted); see also Learning v. State , 227 S.W.3d 245, 249 (Tex. App.-San Antonio 2007, no pet.) (officer's observation of driver veering not only within his own lane, but also into an adjacent lane, not once but four times, "warranted a reasonable suspicion that [he] was not moving from one lane to another safely and that he was therefore violating Section 545.060(a)").

Deputy Martinez's testimony together with the other evidence admitted at the hearing provides more than a scintilla of evidence to support the ALJ's finding that the officer had a reasonable suspicion that Marron had committed or was in danger of committing the offense of failing to maintain a single lane of travel. Mireles , 9 S.W.3d at 131. The record demonstrates a reasonable basis for the administrative action. A court applying the substantial evidence standard of review may not simply substitute its judgment for that of the agency. See Tex. Gov't Code § 2001.174; Mireles , 9 S.W.3d at 131. The county court at law erred in reversing the suspension. Accordingly, we sustain DPS's issues on appeal.

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Conclusion

Because we conclude that the ALJ's findings were reasonable and based on substantial evidence, we reverse the order of the county criminal court at law and render judgment reinstating the order of the administrative law judge.