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Texas Department of Public Safety v. Pasillas

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 25, 2019

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
HERMINIO PASILLAS, Appellee.

          On appeal from the County Court at Law No. 3 of Cameron County, Texas.

          Before Chief Justice Contreras and Justices Longoria and Perkes.

          MEMORANDUM OPINION

          Gregory T. Perkes, Justice.

         Appellant Texas Department of Public Safety (Department) appeals the county court's judgment reversing the suspension of appellee Herminio Pasillas's driver's license following his arrest for driving while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04 (West, Westlaw through 2017 1st C.S.). In what we construe as one issue, the Department contends that the county court erroneously reversed the administrative law judge's (ALJ) decision on the grounds raised by Pasillas.[1] We reverse the county court's judgment and render judgment reinstating the suspension of Pasillas's driver's license.

         I. Background

         At 11:11 p.m. on September 10, 2016, Harlingen Police Officer Arnoldo Maldonado stopped Pasillas for driving a vehicle with an inoperable taillamp. Officer Maldonado immediately called for assistance, suspecting Pasillas of DWI. Officer Julio Garza arrived at 11:12 p.m. and was apprised on the reason for the stop. Officer Garza observed Pasillas speaking "in a slurred speech", and he detected a "moderate odor of alcoholic beverage emitting from [Pasillas's] breath." Pasillas told Officer Garza he drank two or three beers around 5 p.m. that evening. Officer Garza explained and demonstrated the standardized field sobriety tests, before administering the tests to Pasillas. Based upon Pasillas's poor performance and Officer Garza's overall observations, Officer Garza arrested Pasillas for DWI. At 11:30 p.m., Officer Garza read the DIC-24 statutory warnings to Pasillas, and Pasillas agreed to provide a breath sample.[2] At 12:07 a.m., Pasillas's breath alcohol concentration level was 0.091.[3]

         Following a procedural determination by the Department that Pasillas was intoxicated while operating a motor vehicle in a public place, his driver's license was suspended. See Tex. Transp. Code Ann. § 524.012 (West, Westlaw through 2017 1st C.S.) (providing for the license suspension process). Pasillas requested an administrative license revocation (ALR) hearing to contest the suspension of his driver's license. See id. at § 524.031 (providing for the procedure to contest). During the ALR hearing, the Department moved to admit several documents into evidence: (1) a peace officer's sworn report; (2) a breath test technical supervisor's affidavit; and (3) a Texas forensic breath alcohol analytical report. All three documents were admitted, and the latter two documents were admitted without objection from Pasillas. Pasillas objected to the officer's sworn report, arguing the report did not include completed page numbers and was, therefore, untrustworthy and in violation of Texas Rule of Evidence 803.

         Pasillas testified at the hearing, claiming he was not legally intoxicated. He stated he last consumed alcohol over five hours before he was pulled over between 11 p.m. and midnight. Pasillas also alleged the traffic stop was unduly prolonged because Officer Garza took approximately forty-five minutes to arrive to assist Officer Maldonado. Pasillas's testimony ran contrary to the officer's sworn report, which provided time stamps for: Officer Maldonado's traffic stop, Officer Garza's arrival, Officer Garza's reading of the statutory warnings, and the breathalyzer reading.

         The ALJ made four findings of fact and one conclusion of law. In her findings of fact, the ALJ determined the officer (1) had reasonable suspicion to stop Pasillas; (2) had probable cause to arrest Pasillas for DWI; and (3) had properly advised Pasillas of the required warnings before asking him to submit a specimen of his breath. The ALJ also found (4) Pasillas was "operating a motor vehicle in a public place in Texas with an alcohol concentration of 0.08 grams or greater of alcohol per 210 liters of breath." The ALJ concluded the Department met its burden under the Texas Transportation Code and suspended Pasillas's license for ninety days. See Tex. Transp. Code Ann. § 524.035.

         Pasillas appealed to Cameron County Court at Law No. 3. See Tex. Transp. Code Ann. § 524.041. Pasillas argued three issues: (1) the ALJ erred in admitting the peace officer's sworn report, and the ALJ's ruling followed an "unlawful procedure" under the Texas Government Code "to the extent that it allow[ed] an affidavit that refers to unidentifiable attachments"; (2) the ALJ erred in finding against Pasillas because an extrapolation defense, although not raised, existed; and (3) the ALJ erred in admitting the breath test technical supervisor affidavit. Issues two and three were not argued during the ALR hearing. The county court reversed, and this appeal followed.

         II. Discussion

         A. Standard of Review

         We review the county court's substantial evidence review of the ALJ's order de novo. See Tex. Dep't of Pub. Safety v. Struve, 79 S.W.3d 796, 800 (Tex. App.-Corpus Christi 2002, pet. denied). As a consequence, we independently review the ALJ's decision under a substantial evidence standard. See id.; see also Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999) (per curiam). Whether substantial evidence exists to support an ALJ's order is a question of law. Tex. Dep't of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam). Courts must affirm the ALJ findings if there is "more than a mere scintilla of evidence" to support them. See R.R. Comm'n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792-93 (Tex. 1995) ("Substantial evidence requires only more than a mere scintilla."); see also Mireles, 9 S.W.3d at 131. The Texas Government Code provides the limited parameters for reversal on review:

[A Court] shall reverse or remand the case for further proceedings if substantial rights of the appellant 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 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 ...

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