Texas Department of Public Safety v. Claudia Renee Taunton ( 2019 )

Opinion issued August 15, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00565-CV
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TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
V.
CLAUDIA RENEE TAUNTON, Appellee
On Appeal from the County Court at Law No. 3
Galveston County, Texas
Trial Court Case No. CV-80718
MEMORANDUM OPINION
Appellant, the Texas Department of Public Safety (“DPS”), challenges the
trial court’s judgment affirming an administrative order denying DPS’s petition to
suspend the driver’s license of appellee, Claudia Renee Taunton. In its sole issue,
DPS contends that the trial court erred in affirming the administrative order
denying its petition to suspend Taunton’s driver’s license.
We affirm.
Background
On May 5, 2017, Taunton was arrested for driving while intoxicated. DPS
suspended Taunton’s driver’s license and served her with a Notice of Suspension.1
Taunton requested an administrative hearing to contest the suspension of her
driver’s license.2
At the hearing, Texas Highway Patrol Trooper R. Woodard testified that
while driving behind Taunton on FM-517 in Galveston County, Texas on May 5,
2017, he saw her drive her car “over onto the shoulder several times.” Woodard
further testified that there was other traffic on the road at the time and, in his
opinion, Taunton’s driving her car onto the shoulder on multiple occasions created
an unsafe condition on the road. Woodard testified that he could not recall the
exact number of times that Taunton drove her car onto the improved shoulder
“without reviewing” his video recording of the event, but he recalled that “she
didn’t just touch the line; she actually drove onto the shoulder” with her car. He
further testified that she did not drive her car into oncoming traffic and there were
no other cars stopped on the shoulder at the time.
1
See TEX. TRANSP. CODE ANN. §§ 542.012–.014.
2
See id. § 524.031.
2
As a result of the manner of Taunton’s driving, Woodard initiated a traffic
stop. He noticed that Taunton’s eyes were red and glassy. She admitted to
“drinking one mixed alcohol drink in Galveston.” Woodard performed multiple
field-sobriety tests on Taunton, which she failed. She then consented to give two
voluntary breath specimens, which both provided results of blood alcohol content
above the legal limit.3
After considering the evidence and argument of counsel, the administrative
law judge (“ALJ”) made findings of fact that Taunton was “stopped for driving
[her car] partially onto the improved shoulder of the roadway on several
occasions,” “there is insufficient evidence to establish that [Taunton’s] driving was
unsafe or posed a risk to other motorists,” there “was insufficient evidence to
establish reasonable suspicion to stop or contact” Taunton. As such, the ALJ
concluded that “the evidence presented . . . was insufficient to establish all the
issues/elements set out in Tex. Transp. Code Ann. § 524.035 or 724.042 by a
preponderance of the evidence.” DPS appealed the ALJ’s ruling.4
After reviewing the administrative record and hearing the arguments of
counsel, the trial court found that there was “insufficient evidence was established
to prove that [Taunton’s] driving was unsafe or posed a risk to other motorists.”
Accordingly, the trial court rendered judgment affirming the administrative order.
3
See TEX. PENAL CODE ANN. § 49.01(2)(B).
4
See TEX. TRANSP. CODE ANN. § 524.041.
3
Standard of Review
Judicial review of administrative license-suspension decisions is governed
by a “substantial evidence standard.” Mireles v. Tex. Dep’t of Pub. Safety, 9
S.W.3d 128, 131 (Tex. 1999). 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 ANN. § 2001.174(1). However, it
must reverse or remand the case if the challenger’s “substantial rights . . . have
been prejudiced because the 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 an unlawful
procedure, (D) affected by other error of law, (E) not reasonably supported by
substantial evidence when 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. See id. § 2001.174(2); 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). 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
4
[administrative] action.” Mireles, 9 S.W.3d at 131. We must presume that the
agency’s decision is supported by substantial evidence. 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 more
than a scintilla of evidence supports it and may affirm “even if the evidence
preponderates against it.” Mireles, 9 S.W.3d at 131. We may not substitute our
judgment that of the ALJ with regard to the weight or credibility of the evidence.
TEX. GOV’T CODE ANN. § 2001.174; Mireles, 9 S.W.3d at 131.
Reasonable Suspicion
In its sole issue, DPS argues that the trial court erred in affirming the
administrative order denying its petition to suspend Taunton’s driver’s license
because Trooper Woodard had a reasonable suspicion for initiating a traffic stop
after Taunton crossed onto the shoulder of the road on multiple occasions while
driving her car.
DPS must suspend the driving privileges of anyone it determines had an
alcohol concentration level of .08 grams or greater while operating a motor vehicle
in a public place. See TEX. TRANSP. CODE ANN. § 524.012(b)(1); see also TEX.
PENAL CODE ANN. § 49.01(2)(B) (defining “intoxicated” as having a blood alcohol
concentration of 0.08 or more). To prevail at a license-suspension hearing, DPS is
required to prove by a preponderance of the evidence that (1) the operator of a
5
motor vehicle had an alcohol concentration of a level of .08 or greater, while
operating a motor vehicle in a public place, and (2) there existed a “reasonable
suspicion to stop or probable cause to arrest” the operator. See TEX. TRANSP. CODE
ANN. §§ 524.035(a)(1)(A), 524.035(a)(2). It is undisputed that Taunton’s blood
alcohol concentration was above a level of .08, so the only issue before the ALJ
was whether there existed a “reasonable suspicion to stop or probable cause to
arrest” Taunton.
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.” See Tex. Dep’t of Pub. Safety v. Chang, 994 S.W.2d
875, 877 (Tex. App.—Austin 1999, no pet.). The burden is on the State to
demonstrate the reasonableness of the stop. See id. (citing McVickers v. State, 874
S.W.2d 662, 664 (Tex. Crim. App. 1993)). 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, 874 S.W.2d at 664; Chang, 994
S.W.2d at 877. The State 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. Valencia v. State, 820 S.W.2d 397, 400 (Tex. App.—Houston [14th
Dist.] 1991, pet. ref’d).
6
Here, DPS argued that Trooper Woodard reasonably that believed a
violation of Texas Transportation Code section 545.058(a) was in progress because
Taunton crossed the line and drove her car onto the improved shoulder of the road
on multiple occasions.
Texas Transportation Code section 545.058(a) provides:
An operator [of a motor vehicle] may drive on an improved shoulder
to the right of the main traveled portion of a roadway if that operation
is necessary and may be done safely, but only if:
(1) to stop, stand, or park;
(2) to accelerate before entering the main traveled lane of
traffic;
(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped on the
main traveled portion of the highway, disabled, or preparing
to make a left turn;
(5) to allow another vehicle traveling faster to pass;
(6) as permitted or required by an official traffic control device;
or
(7) to avoid a collision.
TEX. TRANSP. CODE ANN. § 545.058(a). In interpreting this statute, this Court has
recognized that “[t]he word ‘necessary’ in the statute is not a free-standing
requirement.” Morales v. State, No. 01-16-00713-CR, 2017 WL 3184758, at *3
(Tex. App.—Houston [1st Dist.] July 27, 2017, no pet.) (mem. op., not designated
7
for publication) (citing Lothrop v. State, 372 S.W.3d 187, 190 (Tex. Crim. App.
2012)). And section 545.058(a) “does not set up a shifting-burden, self-defense-
style framework.” Lothrop, 372 S.W.3d at 191. Instead, “it shows that the offense
of illegally driving on an improved shoulder can be proved in one of two ways:
either driving on the improved shoulder was not a necessary part of achieving one
of the seven approved purposes, or driving on the improved shoulder could not
have been done safely.” Id.
Furthermore, “[m]erely driving on an improved shoulder is not prima facie
evidence of an offense.” Id. at 191. If a law enforcement officer “sees a driver
driving [her car] on an improved shoulder, and it appears that driving on the
improved shoulder was necessary to achieving one of the seven approved
purposes, and it is done safely, that officer does not have reasonable suspicion that
an offense occurred.” Morales, 2017 WL 3184758, at *3. As such, the act alone
of driving on an improved shoulder cannot serve as the basis of a traffic stop or
arrest. Id. Accordingly, in this case, to prevail before at the administrative
hearing, DPS was required to prove, by a preponderance of the evidence, either
that Taunton’s driving of her car on the improved shoulder was not done pursuant
to one of the seven approved purposes or driving on the improved shoulder could
not have been done safely. Id.; see also Chang, 994 S.W.2d at 877 (“The burden is
on the State to demonstrate the reasonableness of the stop.”).
8
Trooper Woodard did not testify that he believed Taunton’s driving of her
car onto the improved shoulder was not for any of the reasons enumerated in
section 545.058(a). Accordingly, the only way DPS could have prevailed on
establishing reasonable suspicion by a preponderance of the evidence was to
present evidence that Woodward believed that Taunton’s driving to be unsafe. See
Lothrop, 372 S.W.3d at 191; Morales, 2017 WL 3184758, at *3. Woodard
testified, without elaboration, that he believed that Taunton’s driving was unsafe.
However, his testimony to this effect was a conclusory answer given in response to
a question on direct examination as Woodard did not provide any explanation or
basis for his conclusion that Taunton’s driving was unsafe. See Dallas Ry. &
Terminal Co. v. Gossett, 294 S.W.2d 377, 380 (Tex. 1956) (“It is well settled that
the naked and unsupported opinion or conclusion of a witness does not constitute
evidence of probative force and will not support a jury finding even when admitted
without objection.”); see also Coastal Transp. Co. v. Crown Cent. Petroleum
Corp., 136 S.W.3d 227, 232 (Tex. 2004) (explaining conclusory statements
without probative force). Accordingly, we hold that there is substantial evidence
to support the ALJ’s finding that DPS failed to meet its burden to establish
reasonable suspicion to stop of contact Taunton.5
5
DPS argues that “there is no evidence in the record to support a finding that
Taunton’s driving on the shoulder was necessary to accomplish any of the seven
lawful reasons for doing so, much less why she had to drive onto the shoulder
9
We overrule DPS’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Julie Countiss
Justice
Panel consists of Justices Lloyd, Landau, and Countiss.
multiple times.” This appears to be an attempt to shift the burden onto Taunton,
which, as we have explained, belongs to DPS. There was no testimony from
Trooper Woodward that he believed that Taunton had no permissible basis for
driving onto the improved shoulder. This is different than requiring proof of a
violation. As we explained in Morales v. State, driving onto an improved shoulder
is not “prima facie” evidence of an offense. No. 01-16-00713, 2017 WL 3184758,
at *3 (Tex. App.—Houston [1st Dist.] July 2017, no pet.) (mem. op., not
designated for publication). Because the “legislature explicitly made this behavior
legal, it would violate legislative intent to allow that behavior to serve as the basis
of a traffic stop or arrest.” Id. Absent testimony from Woodward that Taunton’s
driving of her car was unnecessary or unsafe, there would be no reasonable
suspicion for a traffic stop. Id. Woodward did not testify that “using the
improved shoulder was unnecessary”—only that it was unsafe, which, as we have
explained, was a conclusory statement and not probative evidence on this point.
See id. (citing Lothrop v. State, 372 S.W.3d 187, 191 (Tex. Crim. App. 2012)).
10