      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-14-00319-CV



                        Texas Department of Public Safety, Appellant

                                                v.

                                      Liza Sissac, Appellee


              FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
       NO. C-1-CV-14-000899, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The Texas Department of Public Safety (the Department) appeals from the trial

court’s judgment reversing the administrative decision authorizing the Department to suspend

appellee Liza Sissac’s driver’s license. An administrative-law judge (ALJ) had previously upheld

the suspension based on Sissac’s refusal to submit a specimen of breath or blood while under arrest

for driving while intoxicated (DWI). See Tex. Transp. Code § 724.035 (requiring Department to

suspend driver’s license of person who is arrested for DWI and refuses to submit sample). The

Department asserts that substantial evidence supports the ALJ’s findings of fact that Sissac

voluntarily approached the first police officer she encountered and that probable cause existed to

arrest Sissac. See id. § 724.042. For the reasons that follow, we will reverse the trial court’s

judgment and render judgment affirming the ALJ’s decision.
                                         BACKGROUND

               Sissac was arrested for DWI in the early morning hours of June 9, 2013. The record

establishes the following undisputed facts: Corporal Jordan of the Austin Police Department

observed Sissac drive past a police barricade, prompting him to walk toward her vehicle;1 as he

approached, Sissac parked, exited her vehicle, and voluntarily walked toward Corporal Jordan to ask

him a question; a second officer, Officer Bundick, arrived after receiving a call to the scene at 1:17

a.m.;2 Officer Bundick believed that Sissac was intoxicated based on his personal observations of

Sissac’s glassy and bloodshot eyes, slurred speech, and the smell of alcohol; Officer Bundick

administered field sobriety tests to Sissac, who complied but performed poorly; Sissac exhibited

six of six possible clues of intoxication on the horizontal gaze nystagmus test, three of four clues on

the one-leg-stand test, and seven of eight clues on the walk-and-turn test; Officer Bundick arrested

Sissac for DWI and asked her to provide a specimen of breath or blood; and Sissac refused to

provide a sample.

               Sissac’s refusal subjected her driver’s license to a 180-day suspension under the

Texas Transportation Code. See id. § 724.035(a)(1). Sissac requested an administrative hearing

regarding the suspension. See id. § 724.041(a). At the hearing, Officer Bundick’s affidavit and its

incorporated documents were admitted into evidence with no objection. Sissac submitted no

evidence, and no witnesses testified at the hearing. Sissac urged the ALJ not to authorize suspension



       1
          Sissac has not disputed that she drove past the police barricade. Nothing in the record
indicates whether she was charged or received a citation for driving past the barricade.
       2
         No evidence was presented to indicate how much time passed between when Sissac
approached Corporal Jordan and when Officer Bundick arrived on the scene.

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of her driver’s license because Corporal Jordan lacked the required reasonable suspicion or probable

cause to detain her until Officer Bundick arrived and conducted field sobriety tests. See id. §

724.042(1) (issues to be addressed at license-suspension hearing include whether “reasonable

suspicion or probable cause existed to stop or arrest the person”). The Department argued that

Corporal Jordan never detained Sissac and that Officer Bundick’s personal observations and the field

sobriety test results gave Officer Bundick the required probable cause to detain and arrest Sissac for

DWI. Alternatively, the Department argued that Corporal Jordan had reasonable suspicion or

probable cause to detain Sissac because she passed through a police barricade.

               After the hearing, the ALJ sustained the suspension of Sissac’s license. The ALJ’s

decision included the following findings of fact:


       1)      On June 9, 2013, Austin Police Department Cpl Jordan observed Defendant
               pass a police barricade and park her vehicle. As Cpl Jordan was walking
               toward Defendant’s vehicle, she exited and voluntarily approached Cpl
               Jordan to ask him a question.

       2)      Defendant had a strong odor of alcoholic beverage on her breath.

       3)      Officer Jon Bundick conducted a DWI investigation of Defendant.

       4)      On the same date, probable cause to arrest the Defendant existed in that there
               was probable cause to believe that Defendant was operating a motor vehicle
               in a public place while intoxicated because in addition to the facts in No. 1,
               and 2, the officer observed that Defendant: had bloodshot and glassy eyes;
               swayed, staggered, and stumbled; on the walk-and-turn test, the Defendant
               lost balance during instructions, began too soon, did not touch heel to toe,
               used arms for balance, made an improper turn, stepped off-line and stopped
               while walking; on the one leg stand, Defendant swayed, put her foot down,
               and used arms for balance; on the HGN test Defendant exhibited in both eyes
               a lack of smooth pursuit, distinct nystagmus at maximum deviation, and onset
               of nystagmus prior to 45 degrees.



                                                    3
               Sissac appealed to the county court at law, contending that Corporal Jordan had

lacked legal justification to detain her until Officer Bundick arrived. The county court at law

reversed the ALJ’s decision. The Department now appeals the trial court’s reversal, contending that

substantial evidence supports the ALJ’s findings.


                                  STATUTORY OVERVIEW

               A person arrested for the offense of DWI is deemed to have consented to submit a

specimen of breath or blood to be analyzed for alcohol concentration. Id. § 724.011. If that person

refuses to provide the specimen, the Department must suspend her driver’s license for 180 days. Id.

§§ 724.035(a)(1),(d). That person may then request a hearing before an ALJ at the State Office of

Administrative Hearings. Id. § 724.041(a). At the hearing, the Department must prove by a

preponderance of the evidence that:


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

       (2)     probable cause existed to believe that the person was:

               (A)    operating a motor vehicle in a public place while intoxicated;
                      or

               (B)    operating a watercraft powered with an engine having a
                      manufacturer’s rating of 50 horsepower or above 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
Id. § 724.042. An ALJ’s decision to sustain a driver’s license suspension is appealable. Id. at

§ 524.041(a).


                                    STANDARD OF REVIEW

                Administrative license suspensions are reviewed under Section 2001.174 of the

Texas Government Code, which is often referred to as the substantial-evidence standard of review.

See id. §§ 724.047 (Chapter 524 governs appeals of driver’s license suspensions under Chapter 724),

524.002(b) (Chapter 2001 of Government Code applies); Tex. Gov’t Code § 2001.174; see also

Texas Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam) (citing Mireles

v. Texas Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999) (per curiam)). Section 2001.174

directs us to reverse or remand if Sissac’s substantial rights 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 a whole; or

       (F)      arbitrary or capricious or characterized by abuse of discretion or clearly
                unwarranted exercise of discretion.


Tex. Gov’t Code § 2001.174(2). The determination of whether substantial evidence supports an

administrative decision is a question of law that we review de novo without deference to the trial

                                                   5
court’s ruling. Alford, 209 S.W.3d at 103. “The issue for the reviewing court is not whether the

agency’s decision was correct, but only whether some reasonable basis exists in the record to support

that decision.” Mireles, 9 S.W.3d at 131. We must presume that substantial evidence supports the

administrative “findings, inferences, conclusions, and decisions,” and the burden is on Sissac, as the

party contesting the administrative decision, “to prove otherwise.” Texas Health Facilities Comm’n

v. Charter Med.-Dallas Inc., 665 S.W.2d 446, 453 (Tex. 1984). If there is more than a scintilla of

evidence supporting the administrative findings, this Court must affirm “even if the evidence

preponderates against” the agency’s decision. Mireles, 9 S.W.3d at 131.


                                            ANALYSIS

               The Department raises three issues on appeal. In its first issue, the Department asserts

that there is no need to prove that Corporal Jordan had reasonable suspicion or probable cause to stop

or arrest Sissac because he never detained her. The Department argues that Sissac approached

Corporal Jordan and initiated a consensual encounter that never escalated into a detention. In its

second issue, the Department argues in the alternative that, even if Corporal Jordan did detain Sissac,

he had probable cause to arrest her because he saw her disregard a police barricade. See Tex. Transp.

Code § 472.022(a)(2) (person who drives around barricade commits offense). Furthermore, the

Department asserts that any detention of Sissac until Officer Bundick arrived served a legitimate

law-enforcement purpose by allowing Corporal Jordan to remain at his post at the barricade while

another officer transported Sissac to jail. Moreover, Sissac presented no evidence to show that the

length of any detention was unreasonable. Finally, in its third issue, the Department contends that

when Officer Bundick arrived, he observed numerous signs indicating that Sissac was intoxicated,

                                                  6
which gave him reasonable suspicion to detain Sissac to conduct field sobriety tests. According to

the Department, Sissac’s poor performance on those tests gave Officer Bundick probable cause to

arrest her for DWI and to request the specimen of breath or blood.

               Sissac responds that her encounter with Corporal Jordan was not consensual and that

he illegally detained her without reasonable suspicion or probable cause. Sissac asserts that Officer

Bundick’s affidavit establishes that Corporal Jordan stopped her for passing the police barricade but

does not establish that he had legal justification to further detain her for Officer Bundick’s DWI

investigation. Sissac also urges that Officer Bundick’s affidavit is silent as to whether Corporal

Jordan observed any signs of intoxication and contends that we cannot infer that Corporal Jordan

observed the same things that Officer Bundick observed.3

               A brief overview of the types of police encounters will provide context for our

analysis of the encounter between Corporal Jordan and Sissac.              Interactions between law

enforcement and citizens can be characterized as consensual encounters, investigative detentions,

or arrests. State v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011). Law enforcement must

have legal justification to conduct arrests and investigative detentions, as these are seizures that

implicate Fourth Amendment rights. Id. Arrests require either a warrant or probable cause. Amador

v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). “‘Probable cause’ for a warrantless arrest

exists if, at the moment the arrest is made, the facts and circumstances within the arresting officer’s

knowledge and of which he has reasonably trustworthy information are sufficient to warrant a


       3
           The Department had asserted at the administrative hearing that the ALJ could infer that
Corporal Jordan had observed the same signs of intoxication that Officer Bundick indicated on his
affidavit, but the Department does not raise this issue on appeal.

                                                  7
prudent man in believing that the person arrested had committed or was committing an offense.”

Id. (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). Investigative detentions are brief seizures that are

less intrusive than arrests. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011)

(citing Alabama v. White, 496 U.S. 325, 330 (1990)). They require only reasonable suspicion, which

“exists when the officer has specific articulable facts that, when combined with rational inferences

from those facts, would lead him to reasonably suspect that a particular person has, or soon will be,

engaged in criminal activity.” Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008).

Consensual encounters, during which the citizen is free to leave at any time, do not trigger Fourth

Amendment protections. Woodard, 341 S.W.3d at 411 (citing Florida v. Bostick, 501 U.S. 429, 434

(1991)). Courts must look to the totality of the circumstances to determine whether an interaction

between a citizen and the police is a consensual encounter or a seizure that implicates Fourth

Amendment rights. Id.

                The central issue in this case is whether Corporal Jordan’s encounter with Sissac was

consensual. Sissac does not dispute that probable cause existed for Officer Bundick to arrest her,

she only argues that Corporal Jordan lacked legal justification to detain her until Officer Bundick

arrived. Although it is the Department’s burden to show that reasonable suspicion or probable cause

existed to detain or arrest Sissac, it is Sissac’s burden to show that she was detained in the first place.

See Amador, 275 S.W.3d at 879 (“A defendant who alleges a seizure, such as an arrest, in violation

of the Fourth Amendment has the burden of producing some evidence that rebuts the presumption

of proper police conduct. A defendant may carry this initial burden by establishing that the seizure

occurred without a warrant. If this showing is made, then the burden shifts to the State to prove that



                                                     8
the seizure was nonetheless reasonable.” (citations omitted)). While it is clear that Officer Bundick

arrested Sissac, we must determine whether Sissac has shown that Corporal Jordan also seized her.

                There is no “bright-line rule” governing when an encounter is consensual and when

it is a seizure implicating Fourth Amendment rights. Woodard, 341 S.W.3d at 411. The crucial

question is whether “in view of all the circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554

(1980). The officer’s behavior is especially important to this determination. Woodard, 341 S.W.3d

at 411. Circumstances that can indicate a seizure include “the threatening presence of multiple

officers, the display of a weapon by an officer, some physical touching of the person of the citizen,

or the use of language or tone of voice indicating that compliance with the officer’s request might

be compelled.” Mendenhall, 446 U.S. at 554. When an interaction starts out as a consensual

encounter, physical force or a show of authority by the officer generally indicates that the interaction

has escalated into a seizure. Woodard, 341 S.W.3d at 411.

                We have limited information regarding the encounter between Corporal Jordan and

Sissac. Officer Bundick’s affidavit states that Sissac passed the barricade, Corporal Jordan walked

toward her car, and then Sissac parked, exited the vehicle, and walked toward Corporal Jordan to

ask him a question. Officer Bundick checked a box on his affidavit indicating that Corporal Jordan

“stopped” Sissac. Sissac’s passing the police barricade was the reason given for the “stop.” Sissac

contends that because Officer Bundick’s affidavit establishes that Corporal Jordan “stopped” her,




                                                   9
legal justification was required for the stop and for what Sissac characterizes as Corporal Jordan’s

“further [detention of] Sissac for a DWI investigation.”4

               “A ‘stop’ to make an inquiry, on its own, does not show a seizure.” Woodard,

341 S.W.3d at 413; see also Bostick, 501 U.S. at 434 (“A seizure does not occur simply because a

police officer approaches an individual and asks a few questions.”). Officer Bundick’s checking the

box to indicate that Corporal Jordan stopped Sissac because she passed the police barricade is not

tantamount to a seizure under the circumstances of this case, where there is evidence that Sissac

approached Corporal Jordan voluntarily and there is no evidence that Corporal Jordan pulled her

over or prevented her from leaving. As long as the individual can terminate an encounter at will, it

is a consensual encounter. Woodard, 341 S.W.3d at 411. There is no evidence suggesting that

Corporal Jordan used force, showed authority, or otherwise indicated that Sissac was not free to

leave or to terminate her interaction with him at any time. Accordingly, Sissac has not established

that Corporal Jordan seized her. Because Corporal Jordan did not detain Sissac, we sustain the

Department’s first issue.5




       4
          As noted earlier, there is no evidence in the record to indicate the time of the initial
encounter between Corporal Jordan and Sissac or the length of time until Officer Bundick arrived
on the scene. The only evidence related to time is Officer Bundick’s affidavit, which lists 1:17 a.m.
as the time of call and 1:50 a.m. as the time of arrest.
       5
          Having determined that Corporal Jordan did not detain Sissac, we need not address the
Department’s second issue in which it asserts that Corporal Jordan had probable cause to arrest
Sissac for passing the police barricade and that Sissac presented no evidence to show that the length
of any detention was unreasonable. See Tex. R. App. P. 47.1 (appellate courts must hand down
opinions that are as brief as practicable but that address every issue raised and necessary to
disposition of appeals).

                                                 10
               As noted above, Sissac does not dispute that probable cause existed for Officer

Bundick to arrest her. See Charter Med.-Dallas, 665 S.W.2d at 453 (burden is on party challenging

agency’s decision to prove decision not supported by substantial evidence). Officer Bundick’s

affidavit describing Corporal Jordan’s observation of Sissac committing an arrestable traffic offense,

Officer Bundick’s own observations of Sissac, and the results of the field sobriety tests provide more

than the scintilla of evidence required to support the ALJ’s finding that Officer Bundick had

probable cause to arrest Sissac. See Stagg v. Texas Dep’t of Pub. Safety, 81 S.W.3d 441, 444 (Tex.

App.—Austin 2002, no pet.) (officer’s affidavit stating that driver performed poorly on field sobriety

tests, slurred speech, smelled of alcohol, had bloodshot eyes, and had poor balance provided more

than scintilla of evidence necessary to affirm ALJ’s finding of probable cause). Accordingly, we

sustain the Department’s third issue.

               Substantial evidence supports the ALJ’s findings that the Department satisfied its

burden to prove all elements of Section 724.042, including reasonable suspicion or probable cause

to stop or arrest. See Tex. Transp. Code § 724.042(a)(1). Consequently, we conclude that the trial

court erred by reversing the ALJ’s decision.


                                          CONCLUSION

               Having concluded that the trial court erred by reversing the ALJ’s decision, we

reverse the trial court’s judgment and render judgment reinstating the ALJ’s administrative order

authorizing the Department to suspend Sissac’s driver’s license for 180 days.




                                                 11
                                           _________________________________________

                                          Cindy Olson Bourland, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Reversed and Rendered

Filed: April 30, 2015




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