Texas Department of Public Safety v. Joseph Dean Vasquez

CourtCourt of Appeals of Texas
DecidedAugust 23, 2005
Docket08-04-00181-CV
StatusPublished

This text of Texas Department of Public Safety v. Joseph Dean Vasquez (Texas Department of Public Safety v. Joseph Dean Vasquez) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas Department of Public Safety v. Joseph Dean Vasquez, (Tex. Ct. App. 2005).

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

TEXAS DEPARTMENT OF PUBLIC                  )

SAFETY,                                                              )               No.  08-04-00181-CV

                                                                              )

Appellant,                          )                    Appeal from the

v.                                                                           )            County Court At Law #3

JOSEPH DEAN VASQUEZ,                                )           of El Paso County, Texas

Appellee.                           )                     (TC# 2004-C0007)

O P I N I O N

The Texas Department of Public Safety (ADPS@) appeals the county court at law=s reversal of an administrative decision, entered after a contested case hearing, authorizing the suspension of Appellee Joseph Dean Vasquez=s driver=s license.  In two issues, the DPS argues that the trial court erred in reversing the ALJ=s administrative decision because:  (1) it substituted its judgment for that of the ALJ in determining witness credibility and (2) the administrative decision was supported by substantial evidence   We reverse and render judgment affirming the administrative law judge=s decision.


On the evening of August 30, 2003, El Paso Police Officer Paul Portillo was patrolling on Interstate-10 eastbound when he noticed a vehicle swerving from left to right in the right traffic lane during heavy traffic.  Officer Portillo also observed the vehicle straddle and cross over the marked traffic lanes at least three times.  Based on these observations, Officer Portillo decided to start a DWI investigation.  Officer Portillo turned on his emergency lights and then activated his siren after he had been following the vehicle for half a mile.  The vehicle pulled over on the side of the freeway and stopped in the emergency lane.  Officer Portillo approached the driver=s side of the vehicle, a Cadillac Escalade SUV.  He observed that there were three occupants in the vehicle.  The driver, Mr. Vasquez, rolled down the window.  Officer Portillo asked Mr. Vasquez for his driver=s license and insurance.   According to the officer, Mr. Vasquez fumbled through his wallet while trying to locate his driver=s license and did not have proof of insurance.  Officer Portillo smelled an odor of alcohol coming from Mr. Vasquez=s person and breath.  He also observed that Mr. Vasquez had bloodshot eyes and slurred speech.


Officer Portillo asked Mr. Vasquez to step out the vehicle.  Officer Portillo noted that upon exiting, Mr. Vasquez showed apparent disregard for the cell phone that was on the driver=s seat between his legs.  The officer recalled that he had to draw Mr. Vasquez=s attention to the cell phone in order to prevent it from falling onto the ground.  Mr. Vasquez was escorted to the rear of the vehicle and asked to perform three field sobriety tests, which according to Officer Portillo, he failed.  Mr. Vasquez was placed under arrest and his vehicle was turned over to his brother and friend, the other passengers in the vehicle.  The statutory warnings in document DIC-24 were given to Mr. Vasquez.  Mr. Vasquez agreed to give a breath specimen for testing, but after transport to the police station he refused to give a breath specimen, resulting in the 180-day suspension of his driver=s license.  See Tex.Transp.Code Ann. ' 724.035(a)(Vernon Supp. 2004-05).

At the contested administrative hearing, Mr. Vasquez testified that in the initial stop Officer Portillo had approached the driver=s side of his vehicle, reached inside the truck, turned off the ignition, and took his keys.  Mr. Vasquez recalled that he was still sitting in the driver=s seat when the officer took possession of his keys.  Officer Portillo, however, offered conflicting testimony.  According to Officer Portillo, he did not reach into the vehicle at any time during the initial contact.  Rather, he believed that it would have been dangerous to do so, and further, stated that he had no reason to reach into the vehicle.  On cross-examination and redirect, Officer Portillo maintained that he did not reach into the vehicle to take the keys out of the ignition while Mr. Vasquez was still sitting in the driver=s seat.  Officer Portillo conceded that it was possible that after asking Mr. Vasquez to step out of the vehicle, he could have taken the keys out of the ignition for officer safety, however, he did not recall having done so in this case.

The other passengers in the vehicle offered testimony regarding the removal of Mr. Vasquez=s keys.  James Vasquez recalled that Officer Portillo asked his brother to step out of the vehicle and after his brother complied with that request, the officer reached into the vehicle and took the keys.  Officer Portillo then told him and the other occupant, Mark Artalejo, to stay in the vehicle and not to leave it.  James Vasquez then saw his brother being escorted to the back of the vehicle.  Thirty minutes later, the officer informed him that his brother was going to be arrested and gave them custody of the vehicle.  Mark Artalejo could not recall if anyone took the keys out of the ignition, but remembered that the officer gave him the keys later on that evening when he was given custody of the vehicle.


In its findings of fact, the administrative law judge (ALJ) found that:

(1)        On August 30, 2003, reasonable suspicion to stop [Vasquez] or probable cause to arrest [Vasquez] existed.  Texas Officer P. Portillo=s testimony indicates that he observed [Vasquez=s] vehicle traveling East on Interstate-10 before the Lee Trevino exist, swerving within its own right lane, and observed said vehicle straddle into the other traffic lane, and into the right emergency lane, three times.  He turned on his lights, but said vehicle continued about one mile, until the Officer turned on his siren also.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

James v. State
102 S.W.3d 162 (Court of Appeals of Texas, 2003)
Texas Department of Public Safety v. Pucek
22 S.W.3d 63 (Court of Appeals of Texas, 2000)
Woods v. State
970 S.W.2d 770 (Court of Appeals of Texas, 1998)
Woods v. State
956 S.W.2d 33 (Court of Criminal Appeals of Texas, 1997)
Texas Department of Public Safety v. Norrell
968 S.W.2d 16 (Court of Appeals of Texas, 1998)
Railroad Commission v. Torch Operating Co.
912 S.W.2d 790 (Texas Supreme Court, 1995)
Texas Department of Public Safety v. Cuellar
58 S.W.3d 781 (Court of Appeals of Texas, 2001)
Southern Union Gas Co. v. Railroad Commission
692 S.W.2d 137 (Court of Appeals of Texas, 1985)
Mireles v. Texas Department of Public Safety
9 S.W.3d 128 (Texas Supreme Court, 1999)
Dean v. State
938 S.W.2d 764 (Court of Appeals of Texas, 1997)
Hoag v. State
728 S.W.2d 375 (Court of Criminal Appeals of Texas, 1987)
Texas Department of Public Safety v. Cantu
944 S.W.2d 493 (Court of Appeals of Texas, 1997)
Texas Department of Public Safety v. Stacy
954 S.W.2d 80 (Court of Appeals of Texas, 1997)
Guzman v. State
955 S.W.2d 85 (Court of Criminal Appeals of Texas, 1997)
Raesner v. Texas Department of Public Safety
982 S.W.2d 131 (Court of Appeals of Texas, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
Texas Department of Public Safety v. Joseph Dean Vasquez, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-department-of-public-safety-v-joseph-dean-va-texapp-2005.