Clay Elwood Autery III v. Texas Department of Public Safety

• Court: Court of Appeals of Texas
• Decided: December 22, 2022
• Docket: 09-20-00223-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00223-CV __________________

CLAY ELWOOD AUTERY III, Appellant

V.

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee __________________________________________________________________

On Appeal from the County Court at Law No. 1 Jefferson County, Texas Trial Cause No. 135423 __________________________________________________________________

MEMORANDUM OPINION

In two issues, Clay Elwood Autery III challenges an administrative

order authorizing the suspension of his driver’s license under Chapter

524 of the Texas Transportation Code. That chapter requires the

Department of Public Safety to suspend a person’s driving privileges if

1 the person operates a motor vehicle in a public place with an alcohol

concentration of 0.08 or higher. 1

Autery contends the administrative order revoking his license

should be reversed because the evidence the administrative law judge

(ALJ) considered doesn’t support a finding that the State trooper had

reasonable suspicion to investigate why Autery stopped his vehicle on the

shoulder of the road and doesn’t support a finding that the trooper was

exercising a community-caretaking exception when he initiated the

investigation that led to Autery’s arrest. Because the record supports the

Department’ ruling revoking Autery’s license, we will affirm.

Background

In 2019, Trooper Oscar Camarillo saw a vehicle stopped on the

shoulder of Interstate 10. The trooper activated his emergency lights and

stopped behind Autery’s vehicle. When he approached Autery’s vehicle,

he found Autery in the driver’s seat but unresponsive, which left the

trooper with the impression that Autrey was either asleep or

1Tex. Transp. Code Ann. §§ 524.011, 524.012; see Tex. Penal Code Ann. §§ 49.01(1)(A), 49.01(2)(B). 2 unresponsive. When Autery woke up, he agreed to the trooper’s request

to submit to an intoxilyzer breath test.

Autery provided two samples of his breath. Both revealed an alcohol

concentration above 0.08 grams per 210 liters of breath. 2 Based on these

results, Trooper Camarillo arrested Autery for DWI, gave Autery a

written notice that his driver’s license was temporarily suspended, and

confiscated Autery’ license. 3 The written form Trooper Camarillo gave

Autery served as Autery’s temporary driver’s license for 40 days. The

form also notified Autery how to obtain a hearing to contest the

suspension of his license.

Autery requested an administrative hearing and contested the

suspension of his license. During the hearing, Autery argued the

Department’s decision to suspend his license should be reversed because

Trooper Camarillo didn’t have reasonable suspicion to believe that

Autery was engaged in criminal activity when the trooper initiated his

investigation to determine why Autery had stopped. And he also argued

2SeeTex. Transp. Code Ann. §§ 524.011, 524.012, 524.022. 3OfficerCamarillo used a form titled “NOTICE OF SUSPENSION” and labeled as the DIC-25 (Rev. 10/09) when he confiscated Autery’s license. 3 that Trooper Camarillo wasn’t engaged in a community-caretaking

function when he decided to investigate why Autery had stopped in the

emergency lane on I-10.

Trooper Camarillo was the only witness who testified in the

administrative hearing. In addition to the trooper’s testimony, the ALJ

considered several exhibits admitted into evidence during the hearing:

(1) the trooper’s sworn report of Autery’s stop; (2) the probable cause

affidavit tied to Autery’s arrest, (3) the statutory notices and warning the

trooper gave Autery following the stop; and (3) the results of the

intoxilyzer tests on the Autrey’s breath.

During the hearing, Trooper Camarillo testified he conducted “a

welfare check” on Autery’s vehicle after observing it on the shoulder of I-

10 with the engine and “hazard lights on.” According to the trooper, after

he approached the vehicle, he noticed that Autery was either “asleep or

unconscious.” Then, the trooper knocked on the window of the vehicle “a

couple of times and [Autery] finally woke up.” Trooper Camarillo

explained Autery rolled down the window and he noticed that Autery

smelled of alcohol, seemed disoriented, and had glassy eyes.

4 The trooper asked Autery to perform the standard field sobriety

tests. On the horizontal-gaze nystagmus, the walk-and-turn, and the one-

leg-stand, Trooper Camarillo testified that Autery revealed numerous

clues of intoxication, which the trooper described as a sign that officers

look for as a clue when evaluating whether person is intoxicated. Based

on the investigation and the results of the field sobriety tests, Trooper

Camarillo arrested Autery and charged him with DWI.

Following the hearing, the ALJ signed an order authorizing the

Department to suspend Autery’s driver’s license for 90 days. 4 In the

order, the ALJ found “reasonable suspicion to stop [Autery] existed, in

that Trooper O. Camarillo, after completing a traffic stop on the side of I-

10 in Jefferson County, Texas, observed Defendant asleep and slumped

over the wheel of a vehicle with hazard lights activated stopped on the

side of the road.” 5 Relying on the evidence that the trooper gathered after

approaching Autery’s vehicle and the results of Autery’s field sobriety

4See id. § 524.022. 5The traffic stop the ALJ referenced in her findings appears to

reference a stop Trooper Camarillo testified he made of another vehicle that morning before he saw Autery’s vehicle, which was already at a stop when the trooper saw it in the emergency lane of I-10. 5 tests, the ALJ found the trooper had “probable cause” to support Autrey’s

arrest.

Autery filed a notice that he wanted to appeal the ALJ’s ruling to

the County Court at Law Number One in Jefferson County, Texas.6.

Although subject to an exception that does not apply here, the review of

an administrative decision in a driver’s license revocation case is

conducted “on the record certified by the State Office of Administrative

Hearings with no additional testimony.”7 In reviewing the ALJ’s decision,

the County Court at Law Number One conducted its review on a certified

copy of the administrative record; stated another way, the parties

presented no additional testimony to the County Court at Law in the

appeal.

After reviewing the record, the presiding judge of the County Court

at Law Number One denied Autery’s appeal. Autery then filed an appeal

of the County Court at Law’s ruling with this Court. We note we have

jurisdiction over Autery’s appeal because the value of a person’s driving

6See id. § 524.041. 7Id. § 524.043. 6 privileges exceeds the amount in controversy ($100) required to establish

appellate jurisdiction. 8

Standard of Review

Since the statute giving Autery the right to appeal—section 524.043

of the Texas Transportation Code—doesn’t define the scope of judicial

review, we review Autery’s appeal under the substantial evidence rule.9

Here, the trial court affirmed the ALJ’s decision. Consequently, we may

reverse the trial court’s ruling or remand the case for further proceedings

only if two conditions are met: (1) the appellant’s substantial rights were

prejudiced, and (2) we conclude the trial court abused its discretion in

failing to find the ALJ’s decision was:

(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

8Tex.Dep’t of Pub. Safety v. Barlow, 48 S.W.3d 174, 175-76 (Tex. 2001) (holding “the courts of appeals do have jurisdiction over [the appeal from the county court at law’s ruling]” from a ruling denying an ALJ’s decision suspending a person’s driver’s license). 9Tex. Gov’t Code Ann. § 2001.174; Tex. Transp. Code Ann. §

524.043; see also Tex. Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam). 7 (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. 10

Under a substantial evidence review, we “may not substitute our

judgment for the judgment of the state agency on the weight of the

evidence.” 11 “We must uphold the agency’s ultimate decision if the

evidence is such that reasonable minds could have reached the conclusion

that the agency must have reached in order to justify its action.” 12 The

burden to prove the agency’s decision is unsupported is on the party

contesting the agency’s ruling, as courts must presume substantial

evidence supports the decision the agency made. 13

Analysis

In two issues, Autery challenges the trial court’s ruling affirming

the ALJ’s decision. In Autery’s first issue, he argues Trooper Camarillo

didn’t articulate a reasonable suspicion justifying the stop. In issue two,

he argues that because the stop was not justified, the exclusionary rule

and fruit of the poisonous tree doctrine bars the State from relying on the

10Id. 11Dyer v.Tex. Comm’n on Envtl. Quality, 646 S.W.3d 498, 514 (Tex. 2022) (cleaned up). 12Id. 13Id.

8 evidence it developed in Trooper Camarillo’s investigation, which is the

evidence that resulted in Autery’s arrest.

In the administrative proceeding, the ALJ found “reasonable

suspicion” justified Trooper Camarillo’s decision to stop Autery.14 In

response to Autery’s argument, the Department says Trooper Camarillo’s

“initial contact with Autery is legally justified as a community caretaking

stop[.] It then notes: “A community caretaking stop does not require

reasonable suspicion.” The Department characterizes the ALJ’s use of the

term “reasonable suspicion” as “mistaken.” And the Department

acknowledges that while the record supports the ALJ’s finding the

trooper found Autery unresponsive, the record does not support the ALJ’s

finding that the trooper found him “slumped over the wheel of the

vehicle[.]”

Even though the Department makes these concessions, the

Department argues substantial evidence in the record still supports the

ALJ’s ultimate ruling because the record shows Trooper Camarillo

checked on Autery’s vehicle as a welfare check and motorist assist under

14Tex. Transp. Code Ann. § 524.035(a). 9 circumstances showing the trooper was carrying out his community-

caretaking function rather than his duties investigating crimes. For that

reason, the Department concludes Autery cannot meet his burden of

proof to show his substantial rights were prejudiced by the ALJ’s

extraneous findings even though it agrees the findings Autery challenges

on probable cause to arrest and whether the trooper found Autery

slumped over the wheel of the vehicle are findings that aren’t supported

by the evidence admitted by the ALJ in the administrative hearing.

We agree the evidence in the administrative hearing doesn’t show

that Trooper Camarillo testified he was suspicious that Autery had

committed a traffic violation or a crime when he saw Autery’s vehicle

stopped in the emergency lane on I-10. Instead, Trooper Camarillo

testified that when he saw the vehicle, he “checked on [the vehicle he saw

stopped in the emergency lane on I-10] as a welfare check and motorist

assist.” 15

Thus, we agree the ALJ’s “reasonable suspicion” finding is

erroneous. Even so, we must “uphold the agency’s ultimate decision if the

15Thetrooper’s sworn report listed the reason for the contact as, “Motorist Assist, disabled on outside shoulder.” 10 evidence is such that reasonable minds could have reached the conclusion

that the agency must have reached in order to justify its action.”16 So the

question is whether the ALJ rejected Trooper Camarillo’s testimony that

he was conducting a welfare check and motorist assist, which is what he

said he was doing, when he stopped behind Autery vehicle. First, we note

that during closing argument, the Department’s attorney asked the ALJ

to make an affirmative finding that the trooper was conducting a welfare

check when he checked on Autery’s vehicle. The ALJ, however, did not

make that specific finding in response to the Department’s request. Yet

the ALJ also didn’t find that Trooper Camarillo was not conducting a

welfare check when he stopped behind Autery and approached his

vehicle, which was stopped when the trooper first saw in in the

emergency lane on I-10. Second, we note that Trooper Camarillo’s

testimony about checking on Autery’s vehicle as a motorist assist and

welfare check was undisputed. The trooper never testified he stopped

Autery’s vehicle or decided to approach the vehicle because he thought

Autery had violated a traffic law or was suspicious that Autery had

16Dyer, 646 S.W.3d at 514. 11 committed a crime. Third, under Texas law, not only must Autery show

the findings he challenges are faulty as a matter of law, but he must also

show the ALJ’s faulty findings—here, the reasonable suspicion to stop

and probable cause findings—prejudiced Autrey’s substantial rights. 17

Police officers have community-caretaking functions because we

expect them “to aid individuals who are in danger of physical harm,

protect the rights to speak and assemble, facilitate the movement of

people and vehicles, assist people who cannot care for themselves, resolve

conflict, and deter crime through their conspicuousness.” 18 When police

officers are acting in their “community-caretaking functions,” they are

generally not considered to be engaged in the investigation of a crime. 19

To determine whether an officer is exercising a community-

caretaking function, we ask: “(1) whether the officer was primarily

motivated by a community-caretaking purpose; and (2) whether the

officer’s belief that the individual needed help was reasonable.”20

Generally, a police officer’s subjective belief about whether a person

17Id. 18Byram v. State, 510 S.W.3d 918, 920 (Tex. Crim. App. 2017). 19Id. 20Gonzales v. State, 369 S.W.3d 851, 854-55 (Tex. Crim. App. 2012). 12 needed help turns on these four, non-exclusive factors: “(1) the nature

and level of the distress exhibited by the individual; (2) the location of the

individual; (3) whether or not the individual was alone and/or had access

to assistance independent of that officer; and (4) to what extent the

individual—if not assisted—presented a danger to himself or others.” 21

On appeal, Autery argues the community-caretaking exception

doesn’t apply. According to Autery, the evidence doesn’t support an

implied community-caretaking finding because Trooper Camarillo

testified that he would have stopped and detained Autery even had

Autery “turned his hazards off and turned his blinker on and got back on

Interstate 10.” Autery concludes that just because he was stopped in the

emergency lane of a major interstate highway at six o’clock in the

morning with his hazard lights on, without more, doesn’t justify the

inference that Trooper Camarillo made that Autery was a danger to

himself or to others.

We disagree with Autery that the record doesn’t support a ruling

the ALJ must have made to support a decision to suspend Autery’s

21Byram, 510 S.W.3d at 923. 13 license, which is that the investigation that led to Trooper Camarillo’s

discovery of Autery’s intoxication was based on the trooper’s community-

caretaking role rathe rather his role investigating crime. For instance,

there’s substantial evidence in the record that Trooper Camarillo saw

Autery’s vehicle in the emergency lane of a major interstate highway with

its hazard lights flashing. The trooper testified the reason he decided to

check on Autery’s vehicle is that “the vehicle was on. I checked on him as

a welfare check and motorist assist.” Thus, substantial evidence in the

record shows that Trooper Camarillo subjectively believed he was

exercising his role as a community caretaker rather than his role in

investigating crime. Trooper Camarillo explained that, as he approached

Autery’s vehicle, he saw Autery and thought he was either asleep or

unconscious. The trooper went to the passenger side of Autery’s vehicle

and knocked on the window. But Autery didn’t respond. Then Trooper

Camarillo went to the driver’s side of the vehicle, he knocked on the

window a few times when, “[Autery] finally woke up.” According to

Trooper Camarillo, Autery rolled down the window, appeared “very

disoriented, and then that’s when I could smell the alcohol and he had

glassy eyes.” The trooper also explained that based on the direction

14 Autery had parked his car, he was headed in a direction inconsistent with

the one he should have been in had he been driving to the city where he

said he was headed.

In his brief, Autery relies heavily on Trooper Camarillo’s testimony

that he would have stopped Autery even if Autery had turned off his

hazard lights and left the scene. But in our review, we consider the entire

record rather than a subset of the evidence that looks only to what

Trooper Camarillo said in response to a hypothetical question, which

omitted many relevant facts. For example, Autery’s attorney left out the

fact that Trooper Camarillo found Autery unresponsive in his car, and

omitted facts showing that when the trooper woke Autery up, the trooper

noticed Autrey smelled of alcohol, appeared disoriented, and had glassy

eyes.

We conclude substantial evidence in the administrative record

allowed the trial court to find the agency’s decision to revoke Autery’s

license was justified because Trooper Camarillo was exercising a

15 community-caretaking function when he stopped and checked on

Autery. 22 Because Autery’s first issue lacks merit, it is overruled.

In issue two, Autery contends the trial court erred by admitting

evidence the Department obtained after Trooper Camarillo detained

Autery and arresting him for DWI. According to Autery, the exclusionary

rule and fruit of the poisonous tree doctrine barred the Department from

relying on this evidence. Generally, the State is not allowed to use

evidence it obtains directly or indirectly from an illegal seizure. 23 We note

that Autery’s attorney stated he had no objections when the

Department’s attorney offered the Department’s exhibits into evidence

during the administrative hearing. During the administrative hearing,

22See Dyer, 646 S.W.3d at 514 (noting that under the substantial evidence standard, an “improper, but superfluous, finding does not prejudice the substantial rights of the appellant”); see also Solano v. State, 371 S.W.3d 593, 595 (Tex. App.—Amarillo 2012, no pet.) (holding a police officer was engaged in community-caretaking function when he stopped to check on a vehicle on the side of the road with its hood raised and its hazard lights flashing); Wiseman v. State, No. 02-06-021-CR, 2006 Tex. App. LEXIS 10030, at *15-16 (Tex. App.—Fort Worth 2006, pet. ref’d) (not designated for publication) (holding a police officer was engaged in community-caretaking function when he stopped to check on a vehicle parked against a curb in an apartment complex with its hazard lights on and a passenger half in and half out of the vehicle). 23See Wong Sun v. United States, 371 U.S. 471, 488 (1963); Smith

v. State, 542 S.W.2d 420, 422 (Tex. Crim. App. 1976). 16 Autery’s attorney also didn’t make any objections to Trooper Camarillo’s

testimony. Thus, the arguments Autery raises in his second issue were

not properly preserved for our review. 24 But even had Autery preserved

them, we have explained that Trooper Camarillo obtained the evidence

legally because the record contains substantial evidence showing the

community-caretaking exception applies to Autery’s encounter with the

trooper, which led to the evidence that resulted in Autery’s arrest. 25

Conclusion

We conclude the trial court did not abuse its discretion in denying

Autery’s appeal from the Department’s ruling suspending Autery’s

driver’s license. We overrule Autery’s issues and affirm the order denying

Autery’s appeal.

AFFIRMED. _________________________ HOLLIS HORTON Justice

Submitted on January 24, 2022 Opinion Delivered December 22, 2022 Before Kreger, Horton and Johnson, JJ.

24Tex. R. App. P. 33.1(a). 25State v. Brabson, 976 S.W.2d 182, 185 (Tex. Crim. App. 1998)

(noting the issue of “probable cause” is not properly before the ALJ in a driver’s license revocation hearing—i.e., the finding of probable cause is superfluous). 17