James M. Harris v. Texas Department of Public Safety

• Court: Court of Appeals of Texas
• Decided: December 6, 2005
• Docket: 14-04-01085-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed December 6, 2005

Affirmed and Memorandum Opinion filed December 6, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-01085-CV

JAMES M. HARRIS, Appellant

V.

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee

____________________________________________________________

On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 809404

M E M OR A N D U M   O P I N I O N

Challenging the two-year suspension of his driving privileges, appellant James M. Harris contends in two issues that (1) there is not substantial evidence to support the decision to suspend his driving privileges, and (2)  he was deprived of the opportunity to present additional evidence in his county court appeal from the decision of the administrative law judge.  We affirm.

I.  Factual and Procedural Background

On December 1, 2003,^[1] Officer Virginia Gorman was dispatched to the scene of a major accident in Harris County.  When she arrived, the Texas Department of Public Safety (ADPS@) was already on the scene attending to individuals involved in a three-vehicle accident.  Appellant James M. Harris approached Officer Gorman and told her that he had been driving one of the vehicles.  Harris handed Officer Gorman his driver=s license and proof of insurance.  Officer Gorman noticed a very strong odor of alcohol on Harris=s breath, and asked Harris if he had consumed any alcoholic beverages that day.  Harris responded that he had not.  Because it was one o=clock in the afternoon, Officer Gorman initially believed it was Asomething else@ and asked Harris to step aside and wait in a location away from the emergency vehicles. 

A short while later, Officer Gorman approached Harris again, still noticing a strong odor of alcohol on his breath.  She also noticed that his speech was slurred.  She asked Harris to follow her back to his car.  Officer Gorman again asked Harris whether he had consumed any alcoholic drinks that day.  At that point, Harris stated that he had consumed two glasses of wine.  Officer Gorman told Harris to remain next to his car and wait for her to return.  Officer Gorman then went to assist the emergency technicians with traffic control so that the accident victims could be transported to the hospital.  Meanwhile, Officer F. Stachmus arrived on the scene and observed Harris walk across the street to a convenience store.  Officer Stachmus informed Officer Gorman that he had detected a strong odor of alcohol on Harris=s breath and noted that Harris could not keep a steady balance.  Officer Stachmus also stated that Harris revealed that he had consumed two bottlesCnot glassesCof wine.

Officer Gorman, who is certified to perform field sobriety tests, performed three field sobriety tests on Harris: the Horizontal Gaze Nystagmus (AHGN@) test, the Aone-leg stand@ test, and the Awalk and turn@ test.  Officer Gorman performed these tests after detecting alcohol on Harris=s breath, noticing both that his speech was slurred and that he had a difficult time following instructions, and after confirming that he had consumed alcoholic beverages that day.  Officer Gorman performed the tests across the street and away from the accident scene.  Officer Gorman did not videotape the tests with the video camera in her car because her car was being used to block the accident scene from passing motorists.

Prior to performing the field sobriety tests, Officer Gorman confirmed that Harris was in good health and did not have any major medical problems.  During the HGN test, Officer Gorman noticed the following clues: lack of smooth pursuit in both eyes, onset nystagmus prior to forty-five degrees in both eyes, and distinct nystagmus at maximum deviation in both eyes.  During the one-leg stand test, Harris appeared to be very Ashaky@ and tried very hard to keep his balance.  Finally, during the Awalk and turn@ test, Harris failed to follow the instructions and had to stop and ask questions, but eventually completed the test.

After Officer Gorman administered these tests, Officer Stachmus took over the accident scene, and Officer Gorman placed Harris into custody for suspicion of DWI.  Officer Gorman transported Harris to the Tomball Police Department, read him his statutory warnings, and asked him to submit a breath specimen. Harris refused to submit either a breath or urine specimen. 

Harris was charged with driving while intoxicated.  It was later determined that Harris previously refused a request to give a breath or blood specimen during a different alcohol-related incident approximately twenty-three months before his December 1, 2003 arrest.  Given these refusals, Harris=s driver=s license was automatically suspended for two years.  See Tex. Transp. Code Ann. ' 724.035 (Vernon Supp. 2005). 

Harris challenged the suspension of his driver=s license and requested a hearing before an administrative law judge (AALJ@).  At this hearing, the ALJ found by a preponderance of the evidence that the DPS had met its burden of proof on all required issues under section 724.042 of the Transportation Code and sustained the suspension of Harris=s driver=s license for a period of two years under section 724.035 of that statute. 

On January 22, 2004, Harris filed a petition for judicial review in the County Court at Law No. 3 of Harris County, appealing the ALJ=s decision.  The DPS filed the transcript of the hearing before the ALJ as an attachment to its trial brief in the county court below. The county judge considered the entire administrative record, and after hearing the parties= arguments, the county court affirmed the ALJ=s decision suspending Harris=s driver=s license for two years.^[2]

II.  Issues Presented

Harris now appeals the county court=s decision and contends that there is not substantial evidence to support the ALJ=s decision to suspend his driver=s license for two years and that he was precluded from presenting additional evidence under section 524.043(b) of the Texas Transportation Code.^[3]

III.  Standard of Review

Review of an ALJ=s suspension of driving privileges is made under a substantial evidence standard.  Mireles v. Tex. Dep=t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). Under a substantial-evidence review, the reviewing court cannot substitute its judgment for that of the ALJ and must affirm if the ALJ=s decision is supported by more than a scintilla of evidence.  R.R. Comm=n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995).  The issue for the reviewing court is not whether the ALJ made a correct decision, but rather whether there is some reasonable basis in the record for the action taken by the ALJ.  Id.; Tex. Dep=t of Pub. Safety v. Bell, 11 S.W.3d 282, 283 (Tex. App.CSan Antonio 1999, no pet.).  Review on appeal is limited to a review of the agency record.  Tex. Transp. Code Ann. ' 524.043(a) (Vernon 1999).  Matters of statutory interpretation are questions of law, over which we exercise de novo review.  See S.W. Pub. Serv. Co./Pub. Util. Comm=n of Tex. v. Pub. Util. Comm=n of Tex., 962 S.W.2d 207, 212 (Tex. App.CAustin 1999, pet. denied).

IV.  Analysis

A.        Is the Administrative Law Judge=s decision to suspend Harris=s driver=s license supported by substantial evidence?

Harris argues that the ALJ=s decision to suspend his driver=s license is not supported by substantial evidence.  We disagree.  A driver=s license is a privilege, not a right.  Texas Dep=t. of Pub. Safety v. Schaejbe, 687 S.W.2d 727, 728 (Tex. 1985).  The State has a legitimate interest in regulating driver=s licenses to maintain public safety.  Mireles, 9 S.W.3d at 130.  Thus, statutory law authorizes automatic suspension of a person=s driver=s license when the person is arrested for driving while intoxicated but refuses to give a blood or breath specimen when requested to do so by a law enforcement officer.  Tex. Transp. Code Ann. ' 724.035 (Vernon Supp. 2005).  Under the applicable standard of review, if the ALJ=s decision is supported by more than a mere scintilla of evidence, that decision must be upheld. See Torch Operating Co., 912 S.W.2d at 792B93.  The existence of more than a mere scintilla of evidence turns on the question of the reasonableness of the ALJ=s decision, not the correctness of that decision.  City of El Paso v. Pub. Util. Comm=n of Tex., 883 S.W.2d 179, 185 (Tex. 1994).  The conclusions of the ALJ are presumed valid.  Id.

To uphold a license suspension, an ALJ must find that DPS has proven all elements of section 724.042 by a preponderance of the evidence.  Texas Dept. of Pub. Safety v. Jackson, 76 S.W.3d 103, 107 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  Those elements are as follows:

(1)       reasonable suspicion or probable cause existed to stop or arrest the person;

(2)       probable cause existed to believe that the person was operating a motor vehicle in a public place while intoxicated;

(3)       the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and

(4)       the person refused to submit to the taking of a specimen on request of the officer.^[4]

Tex. Transp. Code Ann. ' 724.042.  Probable cause exists when a police officer has reasonably trustworthy information sufficient to warrant a reasonable person=s belief that a particular person has committed an offense.  Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).  Probable cause deals with probabilities; there must be more than mere speculation but far less than needed to convict or even to find a preponderance of the evidence.  Id.

When rendering her decision, the ALJ issued the following findings of fact:

(1)       On December 1, 1003, reasonable suspicion to stop Harris existed, in that Officer Gorman was dispatched to the scene of an accident in the 400 block of E. Main near Howard Street, Harris County, Texas.  Harris admitted driving one of the vehicles involved in the accident.

(2)       On the same date, probable cause to arrest Harris existed, in that probable cause existed to believe that Harris was operating a motor vehicle in a public place while intoxicated, because in addition to the facts in No. 1, Officer Gorman observed Harris to have a strong odor of an alcoholic beverage on his breath, slurred speech, and admitted drinking to the officer.  Harris had six clues of intoxication on the HGN test.

(3)       Harris 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, Harris refused.

(5)       Harris has had one or more alcohol or drug related enforcement contacts during the ten years preceding the date of Harris=s arrest as is indicated on Harris=s driving record.

We review the agency record to determine whether there is substantial evidence to support the ALJ=s decision.  Harris admitted that he drove one of the vehicles involved in the December 1, 2003 accident.  Officer Gorman stated that she detected a very strong odor of alcohol on Harris=s breath and his speech was slurred.  Harris admitted, after being asked a second time, that he had consumed alcohol that day.  Officer Stachmus saw Harris leave the scene and walk across the street to a convenience store.  Officer Stachmus informed Officer Gorman that he had detected the odor of alcohol on Harris=s breath and that Harris could not hold his balance while standing.  Harris told Officer Stachmus that he had consumed two bottles of wine.  Officer Gorman, who is certified to perform field sobriety tests, performed three field sobriety tests on Harris.  Not only did Harris have a difficult time following instructions, but, during the tests, he demonstrated clues of intoxication.  In addition, Harris appeared to be very Ashaky@ and tried very hard to keep his balance.  Officer Gorman testified that, after being placed under arrest, Harris was asked to submit  a breath specimen but that Harris refused to submit either a breath or urine specimen.  There was also evidence that Harris had refused a prior request for a breath or blood specimen during a different alcohol-related incident approximately twenty-three months before Harris=s December 1, 2003 arrest.

We hold there is substantial evidence to support the ALJ=s finding that probable cause existed to arrest Harris and to believe that Harris was operating a motor vehicle on a public roadway while intoxicated.  See Texas Dep=t. of Pub. Safety v. Pruitt, 75 S.W.3d 634, 640B41 (Tex. App.CSan Antonio 2002, no pet.) (finding that probable cause existed to arrest Pruitt and to believe Pruitt was operating a motor vehicle on a public roadway while intoxicated when Pruitt admitted to officer that he was driving a vehicle involved in the accident, and officer smelled a mild odor of alcohol on his breath, his speech was slurred and Pruitt admitted to officer that he had been drinking); Gajewski v. State, 944 S.W.2d 450 (Tex. App.CHouston [14th Dist.] 1997, no writ) (holding that by his own behavior, the defendant was telling the officer that he was unable to safely operate a motor vehicle and there was reasonable suspicion to stop the defendant).^[5]  Accordingly, we conclude that the county court did not err in ruling that substantial evidence supports the ALJ=s decision.

B.        Was Harris entitled to present additional evidence under Section 524.043(b) of the Texas Transportation Code?

Harris asserts that he should have been allowed to present additional evidence from a psychologist in regard to the HGN test.  Within his trial brief to the county court, Harris asked to present this additional evidence that was not offered during the administrative hearing.  Harris argued that this evidence was material and that he had good reasons for not offering this evidence during the administrative proceeding.  There is no reporter=s record for us to review in this appeal.  Moreover, Harris did not obtain an adverse ruling on his request to present this additional evidence.  In an attempt to avoid a finding of waiver, Harris contends that by issuing an order affirming the ALJ=s decision, the county court implicitly denied Harris=s application to present the additional evidence.  See Walker v. Gutierrez, 111 S.W.3d 56, 60 n.1 (Tex. 2003) (holding that by granting the motion to dismiss, the trial court implicitly denied the motion seeking a grace period).  Presuming, without deciding, that Harris preserved this argument for appeal, we conclude that the county court would not have abused its discretion by denying Harris=s request to present this additional evidence.  See Buttes Res. Co. v. R.R. Comm=n of Texas, 732 S.W.2d 675, 680 (Tex. App.CHouston [14th Dist.] 1987, writ ref=d n.r.e.) (holding that lower court did not abuse its discretion by refusing to remand so that the Commission could hear additional evidence because there was no showing that evidence was material or that there was a good  reason for failure to produce it during earlier proceedings). 

A court abuses its discretion if it acts arbitrarily or refuses to follow guiding rules and principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).  Harris failed to show that the additional evidence was material or that he had any good reasons for his failure to present the additional evidence during the hearing before the ALJ.

Section 524.043(b) provides as follows:

On appeal, a party may apply to the court to present additional evidence. If the court is satisfied that the additional evidence is material and that there were good reasons for the failure to present it in the proceeding before the administrative law judge, the court may order that the additional evidence be taken before an administrative law judge on conditions determined by the court.

Tex. Transp. Code Ann. ' 524.043 (b) (Vernon 1999) (emphasis added).  Harris argues that the additional evidence would have come from a psychiatrist who conducted Apsychiatric/substance abuse@ evaluations on Harris on April 28, 2004 and September 12, 2004.  The psychiatrist opined that Harris had a deviation of the normal HGN in that it is more exaggerated than would be seen in most other people.   

The administrative hearing was conducted on January 14, 2004.  Harris did not bring this evidence to the attention of the county court or to the DPS until October 8, 2004, three days before the October 11, 2004 trial setting.  Harris argues that the Agood reason@ for his failure to present this evidence before the ALJ was that the first examination was done after the administrative hearing.  Harris, however, did not explain why he could not have completed this examination or secured this evidence before the administrative hearing.  Indeed, during the administrative hearing, Harris=s counsel specifically stated that he did not intend to introduce any witnesses or evidence on the types of nystagmus.  Thus, if the county court determined that Harris failed to show good reason for his failure to present the evidence in the prior administrative proceeding, this would not be an abuse of discretion.

Moreover, we conclude that this evidence was not material.  The additional evidence from Harris=s psychiatric evaluation would not have been material in deciding whether (1) reasonable suspicion or probable cause existed to stop or arrest Harris, (2) probable cause existed to believe that Harris was operating a motor vehicle in a public place while intoxicated, (3) Harris was placed under arrest by Officer Gorman and was requested to submit to the taking of a blood or breath specimen, (4) Harris refused to submit to the taking of a specimen on Officer Gorman=s request, or (5) Harris had one or more alcohol-related contacts in the ten years preceding his December 1, 2003 arrest. 

It was not necessary for the ALJ to conclude that Harris was in fact driving while intoxicated.  See, e.g., Mireles, 9 S.W.3d at 131 (holding that there was a reasonable basis for the agency=s decision to suspend motorist=s driver=s license when the motorist=s blood alcohol level was above the legal limit one hour after being stopped); Railroad Comm=n of Tex., 912 S.W.2d at 792B93 (stating that an administrative decision may be sustained even if the evidence preponderates against it); Texas Dept. of Pub. Safety v. Butler, 110 S.W.3d 673, 675 (Tex. App.CHouston [14th Dist.] 2003, no pet) (holding that the determination of  whether driver operated a vehicle while intoxicated was a criminal matter, while license suspension was a civil matter, requiring only probable cause to believe the driver was driving while intoxicated and stating that the statute authorizing the suspension hearing neither requires nor empowers the ALJ to decide the ultimate issue of whether the driver was actually operating a motor vehicle while intoxicated).  Accordingly, we conclude that even if Harris preserved this argument for appeal, the county court would not have abused its discretion in denying Harris=s application to present additional evidence.

Having overruled all of Harris=s arguments presented on appeal, we affirm the county court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed December 6, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

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^[1]  Harris asserts that the accident occurred on December 1, 2004, and that the fact that the incident report indicates the accident occurred on December 1, 2003, shows that the incident report has an incorrect date and that the ALJ=s decision is not supported by substantial evidence.  However, the custodian of records certified the incident report on January 6, 2004, and the ALJ hearing took place on January 14, 2004, making it impossible for the accident to have occurred on December 1, 2004.  There is more than a scintilla of evidence in the record to support the ALJ=s finding that the accident occurred on December 1, 2003.

^[2]  The parties do not dispute this fact.

^[3]  In Harris=s AIssues Presented@ section of his appellate brief, he states that he presents one issue on appeal:

that the trial court abused its discretion in denying Appellant=s petition for judicial review  in that: (i) the trial court failed to provide a  reference to any guiding rules or principles for its decision; and (ii) as such it is assumed that the trial court based its decision on a rejection of Appellant=s Trial Brief; (iii) given that there is no record of written argument from Appellee that answers Appellant=s grounds justifying reversal; and (iv) save Appellee=s original answer in which Appellee makes only a general denial.

It appears from the AArgument@ section of his brief that his main arguments on appeal are that: (1) there is not substantial evidence to support the ALJ=s decision to suspend his driver=s license, and (2) he should have been permitted to present additional evidence in his county court appeal in regard to the HGN test.  For clarity, we will address each argument individually. 

^[4]  Section 724.035 of the Texas Transportation Code, entitled ASuspension or Denial of License,@ provides, in pertinent part:

(a) If a person refuses the request of a peace officer to submit to the taking of a specimen, the department shall:

(1) suspend the person=s license to operate a motor vehicle on a public highway for 180 days; or

(2) if the person is a resident without a license, issue an order denying the issuance of a license to the person for 180 days.

(b) The period of suspension or denial is two years if the person=s driving record shows one or more alcohol‑related or drug‑related enforcement contacts, as defined by Section 524.001(3), during the 10 years preceding the date of the person=s arrest.

See Tex. Transp. Code Ann. ' 724.035 (Vernon Supp. 2005).

^[5]  Within this same argument, Harris further contends that due to the DPS=s failure to file or request any written findings of fact or conclusions of law from the county court judge, the county court abused its discretion by reaching a decision that could not have been supported and for which the county court itself offered no support.  We disagree with this argument.  The DPS was not required to request findings and conclusions from the county court.  Furthermore, appellate courts have held that, even if requested, county courts and district courts need not and should not file findings of fact and conclusions of law regarding their decisions on the merits in administrative appeals.  See Young Chevrolet, Inc. v. Tex. Motor Vehicle Bd., 974 S.W.2d 906, 911 n.9 (Tex. App.CAustin 1998, pet. denied); Madisonville Consol. Indep. Sch. Dist. v. Tex. Emp. Comm=n, 821 S.W.2d 310, 314 (Tex. App.CCorpus Christi 1991, writ denied).