Texas Department of Public Safety v. Armando Cardenas ( 2015 )

ACCEPTED
13-15-00091-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
4/23/2015 5:46:40 PM
DORIAN RAMIREZ
CLERK
No. 13-15-00091-CV
FILED IN
13th COURT OF APPEALS
IN THE THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
SITTING IN CORPUS CHRISTI, TEXAS
4/23/2015 5:46:40 PM
DORIAN E. RAMIREZ
Clerk
TEXAS DEPARTMENT OF PUBLIC SAFETY,
APPELLANT
V.
ARMANDO CARDENAS,
APPELLEE
APPEALED FROM COUNTY COURT AT LAW NO. 7
HIDALGO COUNTY, TEXAS
APPELLANT’S BRIEF
KEVIN M. GIVENS
Supervising Attorney,
ALR Appellate Section
SBN 00796633
P.O. Box 15327
Austin, Texas 78761-5327
Tel: (512) 424-5193
Fax: (512) 424-5221
Kevin.Givens@dps.texas.gov
ATTORNEY FOR APPELLANT
TEXAS DEP’T OF PUB. SAFETY
ORAL ARGUMENT REQUESTED
No. 13-15-00091-CV
TEXAS DEPARTMENT OF PUBLIC SAFETY,
APPELLANT
V.
ARMANDO CARDENAS,
APPELLEE
REQUEST FOR ORAL ARGUMENT
Appellant, Texas Department of Public Safety, believes that oral
argument might benefit the Court in this case and respectfully requests that it
be granted.
ii
No. 13-15-00091-CV
TEXAS DEPARTMENT OF PUBLIC SAFETY,
APPELLANT
V.
ARMANDO CARDENAS,
APPELLEE
IDENTITY OF PARTIES AND COUNSEL
Appellant certifies that the following is a complete list of the parties,
attorneys, and any other persons who have any interest in the outcome of
this lawsuit.
APPELLANT: COUNSEL FOR APPELLANT:
Texas Department of Public Safety Kevin M. Givens
5805 N. Lamar Blvd. Supervising Attorney,
P.O. Box 15327 ALR Appellate Section
Austin, Texas 78761-5327 SBN 00796633
Texas Department of Public Safety
P.O. Box 15327
Austin, Texas 78761-5327
Tel: (512) 424-5193
Fax: (512) 424-5221
Kevin.Givens@dps.texas.gov
iii
Laura Garza
Field Attorney
SBN 24004664
Texas Dep’t of Public Safety
2525 N. International Blvd.
Weslaco, Texas 78596
Tel: (956) 565-7130
Fax: (956) 565-7133
Laura.Garza@dps.texas.gov
APPELLEE: COUNSEL FOR APPELLEE:
Armando Cardenas Sergio Munoz, Jr.
24058009
1110 South Closner
Edinburg, Texas 78539
Sergio@sergiomunozjr.com
iv
TABLE OF CONTENTS
REQUEST FOR ORAL ARGUMENT .......................................................... ii
IDENTITY OF PARTIES AND COUNSEL ................................................ iii
TABLE OF CONTENTS................................................................................ v
INDEX OF AUTHORITIES ........................................................................ vii
APPELLANT’S BRIEF .................................................................................. 1
STATEMENT OF THE CASE ...................................................................... 3
ISSUES PRESENTED ................................................................................... 4
STATEMENT OF FACTS ............................................................................. 5
Cardenas’s Arrest ....................................................................................... 5
The Administrative Hearing ....................................................................... 6
Review by the Trial Court ........................................................................... 6
SUMMARY OF THE ARGUMENT ............................................................. 7
STANDARD OF REVIEW ............................................................................ 8
ISSUE ONE .................................................................................................. 10
Deputy Castellano and Trooper Gonzalez filed reports in
connection with Cardenas’s arrest, as required by law. The
reports detailed factual findings of a lawful investigation. The
ALJ properly admitted the reports as exceptions to hearsay
under rule 803(8) of the Texas Rules of Civil Procedure. Did
the trial court err by impliedly ruling that the reports were
inadmissible?
ARGUMENT AND AUTHORITY .............................................................. 10
v
ISSUE TWO ................................................................................................. 14
Cardenas was driving with a defective license plate lamp
that was completely out. After he was stopped, he exhibited
numerous indicators of intoxication. There was reasonable
suspicion to stop his car and probable cause to believe he was
driving while intoxicated. Did the trial court err by impliedly
ruling that there was not reasonable suspicion or probable cause
to stop or arrest Cardenas?
ARGUMENT AND AUTHORITY .............................................................. 14
Reasonable Suspicion to Stop Cardenas .................................................. 15
Probable Cause to Believe Cardenas Was Driving While Intoxicated .... 18
CONCLUSION ............................................................................................. 22
PRAYER ....................................................................................................... 23
CERTIFICATE OF COMPLIANCE............................................................ 24
CERTIFICATE OF SERVICE ..................................................................... 24
INDEX OF APPENDICES........................................................................... 25
vi
INDEX OF AUTHORITIES
CASES
Amador v. State,
275 S.W.3d 872 (Tex. Crim. App. 2009) ................................................. 19
Blankenbeker v. Tex. Dep’t of Pub. Safety,
990 S.W.2d 813 (Tex. App.—Austin 1999, pet. denied) ......................... 11
Cotton v. State,
686 S.W.2d 140 (Tex. Crim. App. 1985) ................................................. 20
Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238 (Tex. 1985) ...................................................................... 9
Fienen v. State,
390 S.W.3d 328 (Tex. Crim. App. 2012) ................................................... 9
Ford v. State,
26 S.W.3d 669 (Tex. App.—Corpus Christi 2000, no pet.) ..................... 17
Garcia v. State,
827 S.W.2d 937 (Tex. Crim. App. 1992) ................................................. 17
Hesskew v. Tex. Dep’t of Pub. Safety,
144 S.W.3d 189 (Tex. App.—Tyler 2004, no pet.) .................................. 16
Hughes v. State,
24 S.W.3d 833 (Tex. Crim. App. 2000) ................................................... 18
Kiffe v. State,
361 S.W.3d 104 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) ........ 20
Mireles v. Tex. Dep’t of Pub. Safety,
9 S.W.3d 128 (Tex. 1999). ......................................................................... 8
Montanez v. State,
211 S.W.3d 412 (Tex. App.—Waco 2006, no pet.) ................................. 17
Palacios v. State,
319 S.W.3d 68 (Tex. App.—San Antonio 2010, pet. ref’d) .................... 17
vii
Porter v. Tex. Dep’t of Pub. Safety,
712 S.W.2d 263 (Tex. App.—San Antonio 1986, no writ)...................... 10
Schnidt v. State,
357 S.W.3d 845 (Tex. App.—Eastland 2012, pet. ref’d) ......................... 18
Soliz v. State,
No. 13-06-00310-CR, 2007 WL 1720202
(Tex. App.—Corpus Christi June 14, 2007, no pet.)
(mem. op., not designated for publication)............................................... 20
State v. $217,590.00 in U.S. Currency,
18 S.W.3d 631 (Tex. 2000) ........................................................................ 9
State v. Garrett,
22 S.W.3d 650 (Tex. App.—Austin 2000, no pet.) .................................. 20
State v. McCall,
929 S.W.2d 601 (Tex. App.—San Antonio 1996, no pet.) ...................... 17
Tex. Dep’t of Pub. Safety v. Bond,
955 S.W.2d 441 (Tex. App.—Fort Worth 1997, no pet.) ........................ 10
Tex. Dep’t of Pub. Safety v. Caruana,
363 S.W.3d 558 (Tex. 2012) .................................................................... 11
Tex. Dep’t of Pub. Safety v. Duggin,
962 S.W.2d 76 (Tex. App.—Houston [1st Dist.] 1997, no pet.) .............. 12
Tex. Dep’t of Pub. Safety v. Gilfeather,
293 S.W.3d 875 (Tex. App.—Fort Worth 2009, no pet.) ........................ 20
Tex. Dep’t of Pub. Safety v. Jennings,
1 S.W.3d 348 (Tex. App.—Corpus Christi 1999, no pet.) ......................... 8
Tex. Dep’t of Pub. Safety v. Struve,
79 S.W.3d 796 (Tex. App.—Corpus Christi 2002, pet. denied) ................ 8
Vicknair v. State,
751 S.W.2d 180 (Tex. Crim. App. 1986) ................................................. 17
viii
STATUTES
TEX. GOV’T CODE ANN. ch. 2001 (Vernon 2008)
§ 2001.174 .................................................................................................. 8
TEX. TRANSP. CODE ANN. ch. 524 (Vernon 2007)
§ 524.002 .................................................................................................... 8
§ 524.043 .................................................................................................... 8
TEX. TRANSP. CODE ANN. ch. 543 (Vernon 2011)
§ 543.001 .................................................................................................. 17
TEX. TRANSP. CODE ANN. ch. 547 (Vernon 2011)
§ 547.322 .................................................................................................. 16
§ 547.333 .................................................................................................. 16
TEX. TRANSP. CODE ANN. ch. 724 (Vernon 2011)........................................ 14
§ 724.032 .................................................................................................. 10
§ 724.042 .................................................................................................. 14
§ 724.047 .................................................................................................... 8
RULES
1 TEX. ADMIN. CODE § 159.211 (2014) ........................................................ 10
37 TEX. ADMIN. CODE § 17.4 (2014) ............................................................ 10
Tex. R. Evid. 803(8) (1998, amended 2015) ...................................... 8, 10, 11
ix
No. 13-15-00091-CV
TEXAS DEPARTMENT OF PUBLIC SAFETY,
APPELLANT
V.
ARMANDO CARDENAS,
APPELLEE
APPELLANT’S BRIEF
The Texas Department of Public Safety, Appellant in the above
referenced cause, respectfully submits this brief in appeal of a judgment
rendered in favor of Appellee, Armando Cardenas. This appeal is from the
County Court at Law No. 7, of Hidalgo County, Texas, the Honorable
Sergio Valdez, judge presiding, in which Appellee brought a petition for
judicial review of the decision issued by the State Office of Administrative
Hearings, the Honorable Melissa M. Ricard, judge presiding, sustaining the
Department’s suspension of Appellee’s driver license.
For clarity and brevity, the Appellant, Texas Department of Public
Safety, will be referred to as “the Department,” and the Appellee, Armando
Cardenas, will be referred to as “Cardenas.” The State Office of
Administrative Hearings will be referred to as “SOAH.” The administrative
law judge will be referred to as “the ALJ,” and the County Court at Law No.
1
7 will be referred to as “the trial court.” Citations to the Clerk’s Record will
be CR at [page number]. Citations to the Reporter’s Record will be RR
[volume number] at [page number].
2
STATEMENT OF THE CASE
This appeal comes from a contested case under the Administrative
Procedure Act arising out of an administrative license suspension based on
Cardenas’s refusal of an alcohol concentration test. The administrative
hearing was held pursuant to chapter 724 of the Transportation Code,
chapter 2001 of the Government Code, and the applicable administrative
rules of SOAH and the Department. 1
The Department appeals the trial court’s final order reversing the
administrative decision of October 6, 2014, sustaining the Department’s
suspension of Cardenas’s driver license. The trial court’s order was signed
on January 26, 2015. 2 This appeal was timely perfected on February 24,
2015. 3
1
TEX. TRANSP. CODE ANN. ch. 724 (Vernon 2011); TEX. GOV’T CODE ANN. ch. 2001
(Vernon 2008) (Administrative Procedure Act); 1 TEX. ADMIN. CODE ch. 159 (2014)
(State Office of Admin. Hearings, Admin. License Suspension Hearings); 37 TEX.
ADMIN. CODE ch. 17 (2014) (Texas Dep’t of Pub. Safety, Admin. License Revocation).
2
CR at 50.
3
CR at 51.
3
ISSUES PRESENTED
ISSUE ONE
Deputy Castellano and Trooper Gonzalez filed reports in
connection with Cardenas’s arrest, as required by law. The
reports detailed factual findings of a lawful investigation. The
ALJ properly admitted the reports as exceptions to hearsay
under rule 803(8) of the Texas Rules of Civil Procedure. Did
the trial court err by impliedly ruling that the reports were
inadmissible?
ISSUE TWO
Cardenas was driving with a defective license plate lamp
that was completely out. After he was stopped, he exhibited
numerous indicators of intoxication. There was reasonable
suspicion to stop his car and probable cause to believe he was
driving while intoxicated. Did the trial court err by impliedly
ruling that there was not reasonable suspicion or probable cause
to stop or arrest Cardenas?
4
STATEMENT OF FACTS
Cardenas’s Arrest
On Saturday, May 17, 2014, Hidalgo County Deputy Sheriff Armando
Castellano conducted a traffic stop on a vehicle with a defective license plate
lamp. 4 The driver, Armando Cardenas, smelled strongly of alcohol, had
slurred speech, bloodshot eyes, unsteady balance, and admitted that he had
been drinking.5 Trooper Hector Gonzalez arrived at the scene and assisted
with the investigation. 6 Trooper Gonzalez administered the horizontal gaze
nystagmus field sobriety test, and the results indicated that Cardenas was
intoxicated. 7 Cardenas refused a portable breath test, and other field
sobriety tests were not conducted due to safety concerns. 8 Cardenas was
arrested for driving while intoxicated and provided with the statutory
warnings.9 He was asked to provide a specimen of breath and refused the
request.10
4
CR at 42.
5
CR at 42.
6
CR at 36.
7
CR at 37-38, 41.
8
CR at 38.
9
CR at 38, 44.
10
CR at 38, 44.
5
The Administrative Hearing
Cardenas requested a hearing to contest the suspension of his driver
license based on his refusal of the breath test. At the hearing, the
Department’s evidence consisted of Trooper Gonzalez’s report, Deputy
Castellano’s affidavit, and Cardenas’s driving record, all of which were
admitted over Cardenas’s objections.11 Cardenas did not offer any evidence
in his defense.12 After the hearing concluded, the ALJ signed an order
sustaining the suspension of Cardenas’s driver license for two years. 13
Review by the Trial Court
Cardenas appealed the administrative decision to the Hidalgo County
Court at Law Number 7, arguing that there was no reasonable suspicion for
the stop. 14 At the hearing before the trial court, Cardenas also complained
that the ALJ improperly overruled his objections to the Department’s
exhibits. 15 After hearing the arguments of the parties, the trial court reversed
the administrative decision.16 It is from that decision the Department now
appeals.
11
CR at 25-28, 35-47.
12
CR at 29.
13
CR at 16.
14
CR at 5-7.
15
RR vol. 3 at 5-6, 7-9.
16
CR at 50.
6
SUMMARY OF THE ARGUMENT
The ALJ properly overruled Cardenas’s objections to the
Department’s exhibits. Each of the Department’s exhibits were admissible
as exceptions to hearsay. The fact that the ALJ cited case law when
explaining her rulings was not a demonstration of bias, as Cardenas argued
at the trial court, but merely an attempt to educate counsel on the current
state of the law. Cardenas failed to explain why Texas Department of Public
Safety vs. Caruana, the case cited by the ALJ, was wrongly decided or
inapplicable to this case. If the trial court reversed the administrative
decision on the basis that the officers’ reports should not have been
admitted, it erred in doing so.
In addition, there was reasonable suspicion to stop Cardenas and
probable cause to believe he was driving while intoxicated. Cardenas was
driving with a license plate lamp that was completely out, and he exhibited
numerous symptoms of intoxication. If the trial court reversed the
administrative decision on the basis that Cardenas was illegally stopped or
arrested, it erred in doing so.
7
STANDARD OF REVIEW
Administrative License Revocation cases are reviewed under the
substantial evidence standard of review. 17 Under a substantial evidence
review, the administrative decision may not be reversed unless it prejudices
the substantial rights of the appellant, and is:
(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. 18
This case presents a question about the admissibility of documents
under Texas Rule of Evidence 803(8). 19 Administrative rulings on the
admission of evidence are reviewed under an abuse of discretion standard.20
The test for abuse of discretion is whether the court’s action was arbitrary or
unreasonable or whether the court acted without reference to any guiding
17
See TEX. TRANSP. CODE ANN. §§ 524.002(b), 524.043 (Vernon 2007) TEX. TRANSP.
CODE ANN. § 724.047 (Vernon 2011); TEX. GOV’T CODE ANN. § 2001.174 (Vernon
2008); Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999).
18
§ 2001.174(2).
19
See Tex. R. Evid. 803(8) (1998, amended 2015). A non-substantive revision of the
rules became effective on April 1, 2015. See 2014 Texas Court Order 0016 (C.O. 0016).
All references to Rule 803 will be to the version in effect at the time of Cardenas’s
hearing, unless otherwise noted.
20
Tex. Dep’t of Pub. Safety v. Struve, 79 S.W.3d 796, 802-03 (Tex. App.—Corpus
Christi 2002, pet. denied); Tex. Dep’t of Pub. Safety v. Jennings, 1 S.W.3d 348, 351 (Tex.
App.—Corpus Christi 1999, no pet.).
8
rules and principles. 21 The case also presents issues of reasonable suspicion
and probable cause, where substantial deference is given to the findings of
fact made by the administrative law judge, while the application of law to
those facts is reviewed de novo.22
21
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
22
See Fienen v. State, 390 S.W.3d 328, 335 (Tex. Crim. App. 2012); State v. $217,590.00
in U.S. Currency, 18 S.W.3d 631, 632 (Tex. 2000).
9
ISSUE ONE
(Restated)
Deputy Castellano and Trooper Gonzalez filed reports in
connection with Cardenas’s arrest, as required by law. The
reports detailed factual findings of a lawful investigation. The
ALJ properly admitted the reports as exceptions to hearsay
under rule 803(8) of the Texas Rules of Civil Procedure. Did
the trial court err by impliedly ruling that the reports were
inadmissible?
ARGUMENT AND AUTHORITY
Deputy Castellano and Trooper Gonzalez both participated in the
arrest of Cardenas. Deputy Castellano made the initial stop and Trooper
Gonzalez completed the arrest.23 Each of the officers had an obligation to
report their observations to the Department of Public Safety. 24 And, each
officer made a written report of his observations, which were each submitted
to the Department. 25 Consequently, each report was admissible at the
administrative hearing. 26
23
CR at 36, 42.
24
See TEX. TRANSP. CODE ANN. § 724.032 (Vernon 2011); 37 TEX. ADMIN. CODE § 17.4
(1) (2014); Tex. Dep’t of Pub. Safety v. Bond, 955 S.W.2d 441, 446 (Tex. App.—Fort
Worth 1997, no pet.) (“The information conveyed to [the arresting officer] by [the
stopping officer] concerning her observations of [the defendant’s] driving and the reasons
why she stopped him were made under a ‘duty imposed by law as to which matters there
was a duty to report.’”) (quoting Porter v. Tex. Dep’t of Pub. Safety, 712 S.W.2d 263,
264–65 (Tex. App.—San Antonio 1986, no writ)).
25
CR at 36-41, 42.
26
Tex. R. Evid. 803(8); 1 TEX. ADMIN. CODE § 159.211(c)(2) (2014) (“An officer’s
sworn report of relevant information shall be admissible as a public record.”).
10
Cardenas objected to the admission of Deputy Castellano’s report
because it was not specifically incorporated into Trooper Gonzalez’s
report.27 However, as the ALJ explained to Cardenas, the report did not
have to be incorporated, because it was independently admissible. 28
At the time of Cardenas’s hearing, Rule 803(8) provided that the
following were exceptions to the hearsay rule:
Records, reports, statements, or data compilations, in any form,
of public offices or agencies setting forth:
(A) the activities of the office or agency;
(B) matters observed pursuant to duty imposed by law
as to which matters there was a duty to report,
excluding in criminal cases matters observed by police
officers and other law enforcement personnel; or
(C) in civil cases as to any party and in criminal cases
as against the state, factual findings resulting from an
investigation made pursuant to authority granted by
law;
unless the sources of information or other circumstances
indicate lack of trustworthiness.29
ALR hearings are civil hearings to which the “criminal case” exceptions in
Rule 803(8) do not apply. 30
27
CR at 25-26.
28
CR at 26. See Tex. R. Evid. 803(8) (permitting admissibility of public records); Tex.
Dep’t of Pub. Safety v. Caruana, 363 S.W.3d 558, 561-65 (Tex. 2012) (holding that a
document that meets the requirements of Rule 803(8) is admissible in an ALR hearing,
regardless of its status as a “sworn report” under SOAH rules).
29
Tex. R. Evid. 803(8).
30
Blankenbeker v. Tex. Dep’t of Pub. Safety, 990 S.W.2d 813, 817 (Tex. App.—Austin
1999, pet. denied) (“Those exceptions to the exception survived the combination of the
civil and criminal rules of evidence, but do not apply to license suspensions, which are
11
Deputy Castellano’s affidavit and Trooper Gonzalez’s report each set
out “matters observed pursuant to duty imposed by law as to which matters
there was a duty to report,” as well as “factual findings resulting from an
investigation made pursuant to authority granted by law.” Each document
was independently admissible under Rule 803(8) and Caruana, regardless of
whether Deputy Castellano’s report was incorporated by reference into
Trooper Gonzalez’s report. The ALJ did not err by overruling Cardenas’s
objection.
In Cardenas’s appeal to the trial court, he attacked the impartiality of
the ALJ because she cited the Caruana decision when overruling his
objection to the Department’s exhibit. 31 However, Cardenas made no effort
to explain why Caruana was wrongly decided or why it did not apply to his
case.32 Nor is there any legal basis for Cardenas’s insinuation that the ALJ
was required to wait for the Department’s response before ruling on his
civil cases.”); Tex. Dep’t of Pub. Safety v. Duggin, 962 S.W.2d 76, 80 (Tex. App.—
Houston [1st Dist.] 1997, no pet.) (“Because the [administrative law] hearing and
Duggin’s appeal to the county court were both civil proceedings, the civil rules of
evidence apply, not the criminal rules.”).
31
RR vol. 3 at 9, 14.
32
RR vol. 3 at 6-9, 12-14.
12
objection. 33 The ALJ should not have been reversed for knowing the law or
sharing that knowledge with counsel.
If the trial court reversed the ALJ because she overruled Cardenas’s
objection, because she explained her reasoning, or because she did not wait
for a response from the Department before ruling, it erred in doing so. This
Court should reverse the trial court’s decision and reinstate the
administrative order sustaining the suspension of Cardenas’s driver license.
33
CR at 28. RR vol. 3 at 14 (“She is the one that herself, even in the hearing, brings up
the Carauna [sic] case without even the State offering it up as supporting evidence to
allow the admission of the documents.”).
13
ISSUE TWO
(Restated)
Cardenas was driving with a defective license plate lamp
that was completely out. After he was stopped, he exhibited
numerous indicators of intoxication. There was reasonable
suspicion to stop his car and probable cause to believe he was
driving while intoxicated. Did the trial court err by impliedly
ruling that there was not reasonable suspicion or probable cause
to stop or arrest Cardenas?
ARGUMENT AND AUTHORITY
Cardenas’s driver license was suspended under chapter 724 of the
Transportation Code.34 In a license suspension case under chapter 724, there
are four elements that the Department must prove: (1) that there was
reasonable suspicion or probable cause to stop or arrest the person; (2) that
there was probable cause to believe the person was driving while
intoxicated; (3) that the person was placed under arrest and requested to
provide a specimen; and (4) that the person refused the request. 35
Cardenas does not contest the third and fourth issues in this case, and
there is substantial evidence in the record to support the ALJ’s affirmative
finding on each of those issues. Cardenas was arrested for driving while
intoxicated, and he was requested to provide a breath specimen. 36 He
34
See TEX. TRANSP. CODE ANN. ch. 724 (Vernon 2011).
35
See TEX. TRANSP. CODE ANN. § 724.042 (Vernon 2011).
36
CR at 38, 44.
14
refused that request, and signed the statutory warning, acknowledging his
refusal. 37 Thus, the third and fourth issues were satisfied.
Apart from the admissibility of the Department’s exhibits, addressed
in Issue One, the contested issues in this case are whether there was
reasonable suspicion to stop Cardenas and probable cause to believe he was
driving while intoxicated. There was reasonable suspicion to stop Cardenas
for committing a traffic offense and numerous indicators suggested that he
was driving while intoxicated. The trial court erred if it impliedly reversed
the ALJ on either of these grounds.
Reasonable Suspicion to Stop Cardenas
The ALJ did not err in finding that there was reasonable suspicion to
stop Cardenas for failing to dim his headlamps and for driving with a broken
license plate lamp. 38 According to Deputy Castellano’s affidavit, he was on
patrol at FM 2221 and Bentsen Palm Drive, and Cardenas’s high beam
headlights were blinding his vision.39 Then Deputy Castellano saw
Cardenas’s license plate lamp was out after Cardenas passed through the
intersection. 40 Given these facts, the ALJ could draw a reasonable inference
37
CR at 44.
38
CR at 16.
39
CR at 42.
40
CR at 42.
15
that Deputy Castellano was in an oncoming vehicle, and Cardenas failed to
dim his headlights as their two vehicles passed each other, in violation of
section 547.333(c)(1)(B) of the Transportation Code.41
Deputy Castellano also had reasonable suspicion to stop Cardenas for
driving with a defective license plate lamp. Regardless of whether or not
Cardenas’s failure to dim his headlights constituted a traffic violation,
Deputy Castellano saw that Cardenas had a defective license plate lamp
before initiating the traffic stop.42 Thus, each violation presented an
independent basis for the stop.
Section 547.322 of the Transportation Code requires vehicles to have
a “taillamp or a separate lamp . . . constructed and mounted to emit a white
light that: (1) illuminates the rear license plate; and (2) makes the plate
clearly legible at a distance of 50 feet from the rear.” 43 Failure to display the
41
See TEX. TRANSP. CODE ANN. § 547.333 (Vernon 2011); Hesskew v. Tex. Dep’t of Pub.
Safety, 144 S.W.3d 189, 192 (Tex. App.—Tyler 2004, no pet.) (“Sworn affidavits of law
enforcement officers must be viewed by the courts in a common sense, not hyper-
technical, fashion. Courts are permitted to draw reasonable inferences from the facts
supporting a law enforcement officer’s sworn statements.”) (citations omitted).
42
CR at 42 (“I observed the vehicle’s rear license plate light was defective. I then
conducted a traffic stop on the vehicle with my duty patrol unit.”).
43
TEX. TRANSP. CODE ANN. § 547.322(f) (Vernon 2011).
16
statutorily required lighting is a traffic offense, for which a vehicle may be
stopped and the driver arrested. 44
Deputy Castellano described Cardenas’s license plate lamp as
“defective.” 45 Trooper Gonzalez expanded upon Deputy Castellano’s
description, reporting that he “observed the rear license plate lamps of the
black Impala were completely out and not working.” 46 Thus, there was
reasonable suspicion for the stop. 47
In his petition to the trial court, Cardenas argued that his case
presented a “mere equipment violation,” controlled by Vicknair v. State, 751
S.W.2d 180 (Tex. Crim. App. 1986).48 However, Vicknair is easily
distinguished. In that case, the Court of Criminal Appeals held that, as long
as the cracked lens at issue continued to emit a red light in compliance with
statutory requirements, there was no traffic violation. 49 On the other hand,
the Vicknair court specifically acknowledged that, if the lens failed to emit
44
TEX. TRANSP. CODE ANN. § 543.001 (Vernon 2011); see also Garcia v. State, 827
S.W.2d 937, 944 (Tex. Crim. App. 1992); Ford v. State, 26 S.W.3d 669, 673 (Tex.
App.—Corpus Christi 2000, no pet.).
45
CR at 42.
46
CR at 37.
47
Palacios v. State, 319 S.W.3d 68, 72-73 (Tex. App.—San Antonio 2010, pet. ref’d);
Montanez v. State, 211 S.W.3d 412, 415 (Tex. App.—Waco 2006, no pet.); State v.
McCall, 929 S.W.2d 601, 603 (Tex. App.—San Antonio 1996, no pet.).
48
CR at 6.
49
Vicknair v. State, 751 S.W.2d 180, 189 (Tex. Crim. App. 1986) (“If the tail light lens
became fractured after inspection, but never degenerated to the point of either being a
safety hazard or violating the standards of Art. XIV, the driver of the vehicle would be
free from arrest.”).
17
the required red light, there would be reasonable suspicion to stop the
vehicle:
Arguably, such a motor vehicle could be legally driven until the
tail light degenerated to the point that it did not meet the
standards of Art. XIV, § 111, i.e., failure to emit a red light for
a distance of 1,000 feet, or until it violated Art. XV, i.e., driving
a motor vehicle without a valid inspection sticker, whichever
came earlier.50
In the present case, Cardenas’s license plate lamp had completely failed, so
Vicknair does not apply, and there was reasonable suspicion to stop his car.
If the trial court reversed the administrative decision because it believed
there was not reasonable suspicion for the stop, it erred in doing so.
Probable Cause to Believe Cardenas Was Driving While Intoxicated
The ALJ did not err in finding that there was probable cause to
believe Cardenas was driving while intoxicated. 51 “Probable cause requires
more than 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.”52 Probable cause exists when “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
50
Id. (emphasis added).
51
CR at 16.
52
Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000); accord Schnidt v. State,
357 S.W.3d 845, 854 (Tex. App.—Eastland 2012, pet. ref’d).
18
that the person arrested had committed or was committing an offense.” 53 In
this case, Trooper Gonzalez had more than mere suspicion that Cardenas had
been driving while intoxicated. The facts and circumstances within Trooper
Gonzalez’s knowledge were sufficient to lead a prudent person to believe
that Cardenas had been driving while intoxicated.
Cardenas had a strong odor of alcohol on his breath, slurred speech,
bloodshot eyes, and unsteady balance.54 He told Deputy Castellano that he
had one beer and contradicted himself by telling Trooper Gonzalez that he
had two beers. 55 Cardenas had six of six clues on the horizontal gaze
nystagmus test and refused a portable breath test. 56 Other field sobriety tests
were not attempted due to safety concerns.57
Cardenas’s case is almost identical to another in which this Court
found there was probable cause to believe a person was driving while
intoxicated. In Soliz v. State, “Trooper Mingst testified that he witnessed
four signs of appellant’s intoxication: (1) appellant smelled of alcohol, (2)
appellant admitted to consuming alcohol, (3) appellant showed six of six
clues on the HGN test, and (4) the PBT showed that appellant’s blood
53
Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).
54
CR at 37, 42.
55
CR at 37, 42.
56
CR at 37-38.
57
CR at 38.
19
alcohol concentration was above 0.08.” 58 In the present case, Cardenas had
even more traditional symptoms of intoxication, including bloodshot eyes,
slurred speech, and unsteady balance.59 And Cardenas’s refusal of the
portable breath test can also be considered as part of the probable cause
analysis.60 Considering the totality of the circumstances, there was probable
cause to believe Cardenas had been driving while intoxicated. The trial
court erred if it reversed the administrative decision on this ground.
There is substantial evidence in the record to support the ALJ’s
affirmative findings on each of the four elements the Department was
required to prove in this ALR breath test refusal case. There was reasonable
suspicion to stop Cardenas for a traffic violation and probable cause to
believe he had been driving while intoxicated based on numerous symptoms
of intoxication, in addition to the facts that he failed one field sobriety test
58
Soliz v. State, No. 13-06-00310-CR, 2007 WL 1720202, at *3 (Tex. App.—Corpus
Christi June 14, 2007, no pet.) (mem. op., not designated for publication).
59
Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985); Kiffe v. State, 361
S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (“A lack of balance
and slurred speech can prove intoxication.”); Tex. Dep’t of Pub. Safety v. Gilfeather, 293
S.W.3d 875, 880 (Tex. App.—Fort Worth 2009, no pet.) (“Bloodshot eyes, an odor of
alcohol on a person’s breath, and unsteady balance are all classic symptoms of
intoxication.”).
60
Gilfeather, 293 S.W.3d at 880 (“[T]his court and numerous other courts of appeals
have held that the refusal to participate in field sobriety tests is a factor to be considered
in the totality of the circumstances.”); State v. Garrett, 22 S.W.3d 650, 655 (Tex. App.—
Austin 2000, no pet.) (“[W]here many of the missing factors are due to a defendant’s
conduct, we believe that the officers could reasonably consider that conduct as part of the
totality of the circumstances.”).
20
and refused another. And it is undisputed that Cardenas was arrested and
requested to provide a breath specimen and that he refused that request. If
the trial court reversed the administrative decision on any basis other than
the evidentiary ruling addressed in Issue One, above, it erred in doing so.
This Court should reverse the trial court and reinstate the administrative
decision, sustaining the suspension of Cardenas’s driver license.
21
CONCLUSION
The ALJ properly admitted both Deputy Castellano’s affidavit and
Trooper Gonzalez’s report as exceptions to hearsay. Both documents were
public records on file with the Texas Department of Public Safety, pursuant
to a duty imposed by law. And both documents set out factual findings of an
investigation made pursuant to authority granted by law. The ALJ correctly
overruled Cardenas’s objections and was under no obligation to wait for the
Department’s response before doing so. If the trial court reversed the ALJ
on this ground, it erred in doing so.
The Department also proved each of the elements required to sustain a
suspension of Cardenas’s driver license. There was reasonable suspicion to
stop Cardenas based on a traffic violation, because his license plate lamp
was completely out. There was also probable cause to believe Cardenas was
driving while intoxicated based on the number of symptoms of intoxication
he exhibited, as well as the facts that he failed one field sobriety test and
refused another. Finally, Cardenas was arrested and asked to provide a
breath specimen and he refused that request. Since the Department proved
all of the required elements, the trial court erred by reversing the
administrative decision. This Court should reverse the trial court and
reinstate the administrative suspension of Cardenas’s driver license.
22
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Department
respectfully prays that this Honorable Court reverse the order of the County
Court at Law No. 7 and affirm the administrative order of October 6, 2014,
sustaining the Department’s suspension of Cardenas’s driver license. The
Department further prays that it recover the costs of this appeal. See TEX.
CIV. PRAC. & REM. CODE ANN. § 8.02 (Vernon 2002).
Respectfully Submitted,
/s/ Kevin M. Givens
KEVIN M. GIVENS
Supervising Attorney,
ALR Appellate Section
SBN 00796633
P.O. Box 15327
Austin, Texas 78761-5327
Tel: (512) 424-5193
Fax: (512) 424-5221
Kevin.Givens@dps.texas.gov
ATTORNEY FOR APPELLANT
TEXAS DEP’T OF PUB. SAFETY
23
CERTIFICATE OF COMPLIANCE
I certify that this document was prepared with Microsoft Word, and
that, according to that program’s word-count function, the sections covered
by Texas Rule of Appellate Procedure 9.4(i)(1) contain 3782 words.
Respectfully Submitted,
/s/ Kevin M. Givens
KEVIN M. GIVENS
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the above and
foregoing Appellant’s Reply Brief by email, per Tex. R. App. P. 9.5(b)(1), to
Sergio Munoz, Jr., counsel of record for Appellee, Armando Cardenas, at
Sergio@sergiomunozjr.com, on April 27, 2015.
Respectfully Submitted,
/s/ Kevin M. Givens
KEVIN M. GIVENS
24
INDEX OF APPENDICES
TAB A
Order of January 26, 2015, County Court at Law No. 7,
Honorable Sergio Valdez, presiding.
TAB B
Administrative Decision of October 6, 2014,
Honorable Melissa M. Ricard, presiding.
25
TAB A
Accepted by: Oscar Gonzalez Electronically Submitted
1/16/2015 3:22:48 PM
Hidalgo County Clerks Office
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TAB B
DOCKET NO. 2014-08-78118
TEXAS DEPARTMENT OF PUBLIC SAFETY § BEFORE THE STATE OFFICE
§
V. § OF
ARMANDO CARDENAS § ADMINISTRATIVE HEARINGS
Defendant
ADMINISTRATIVE DECISION
On October 2, 2014, tlle Defendant appeared personally or tllrougb counsel and announced ready. !be
Department appeared tllrougb 1ts attorney or representalive and announced ready. Havmg heard and considered
the evidence, the Administrative Law Judge fmds that the State Office of Administrative Hearings has
jurisdiction over this cause and further finds the facts below:
FINDINGS OF FACT
1. On May 17,2014, at approximately 10:27 p.m., reasonable suspicion to stop Defendant existed, in that a
Texas peace officer within his jurisdiction observed Defendant operating a motor vehicle in a public
place in Texas. The officer observed Defendant fail to dim high beams when approaching another
vehicle and observed that Defendant's rear license plate lamp was inoperable.
that Defendant was operating a motor vehicle in a public place while intoxicated, because in addition to
the facts in No. 1, a Texas peace officer observed Defendant had a strong odor of alcohol, slurred
speech, and bloodshot eyes. Defendant displayed 6 of 6 clues of intoxication on the Horizontal Gaze
Nystagmus evaluation.
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.
5. Defendant has had one or more alcohol or drug related enforcement contacts during the ten years
p~eceding the date of Defendant's arrest as is indicated on Defendant's driving record
CONCLUSIONS OF LAW
Based on the foregoing, the Judge concludes the Department proved the issues set out in Tex. Transp. Code §
724.042 and that Defendant's license is subject to a suspension for two years pursuant to Tex. Transp. Code§
724.035.
In accordance with the above findings and concJnsions, the IJJdge hereby enters the following order
ORDER
The Department is authorized to suspend or deny Defendant's driving privileges for the period indicated above.
This decision may he appealed pursuant to Tex Transp Code §524 041 And I Tex. Admin. Code §159.255.
Signed thi{i(fa:;.y of October, 2014.
\ 16