      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                    NO. 03-10-00070-CV



                             Clay McCoy Crawford, Appellant

                                              v.

                        Texas Department of Public Safety, Appellee


               FROM COUNTY COURT AT LAW NO. 1 OF COMAL COUNTY
          NO. 2009-CV-0529, HONORABLE RANDAL C. GRAY, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Clay McCoy Crawford appeals a judgment upholding the suspension of his driver’s

license. Crawford was arrested for driving while intoxicated (“DWI”), see Tex. Penal Code Ann.

§ 49.04 (West 2003), and refused to provide a breath specimen for analysis of his blood alcohol

content. Accordingly, the Texas Department of Public Safety (“DPS”) suspended Crawford’s

driver’s license.   See Tex. Transp. Code Ann. § 724.035 (West 2011).         Crawford sought

administrative review of the suspension. See id. § 724.041 (West 2011). An administrative law

judge issued an order sustaining the suspension. See id. § 724.043 (West 2011). Crawford sought

judicial review of the order. See id. § 524.041 (West 2007). The county court at law issued a

judgment affirming the order. We affirm the county court at law’s judgment.
                      FACTUAL AND PROCEDURAL BACKGROUND

               At approximately 10:40 p.m. on May 15, 2009, Comal County Sheriff’s Deputy Frank

Cockrell observed Crawford driving a truck with a boat in tow. Cockrell later wrote in a sworn

report that he saw Crawford’s “vehicle” swerve several times into the oncoming-traffic lane,

sometime as much as two or three feet, and then saw “a large cloud of smoke come from the rear of

the vehicle.” Cockrell also wrote in his sworn report that he became “concerned that the operator

was having difficulty maintaining control of the vehicle.” The report does not clarify whether the

term “vehicle” refers to the truck or the boat.

               Cockrell stopped Crawford and approached his truck to speak with him. According

to his report, when Cockrell did so he noticed that Crawford slurred his speech and smelled strongly

of alcohol. Cockrell asked Crawford how much alcohol he had consumed that day, and Crawford

responded, “I probably shouldn’t have had what I had.”1 Cockrell asked Crawford if he felt he had

consumed too much to drive, and Crawford responded, “I can make it home.”

               Cockrell administered three field sobriety tests to Crawford. Crawford exhibited four

of six possible signs of intoxication on the Horizontal Gaze Nystagmus test, four of eight possible

signs of intoxication on the Walk and Turn test, and one of four possible signs of intoxication on the

One-Leg Stand test. After administering the tests, Cockrell arrested Crawford for DWI and

transported him to the Comal County jail.




       1
          The details of this exchange are contained in Cockrell’s sworn report. DPS introduced the
report into evidence at the administrative hearing without objection from Crawford.

                                                  2
                After arriving at the jail, Crawford refused to provide a breath specimen for analysis

of his blood alcohol content. DPS therefore suspended his driver’s license. See id. § 724.035.


                                    STANDARD OF REVIEW

                We review administrative license-suspension decisions under the substantial-evidence

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

means we will affirm an administrative license-suspension decision if the record demonstrates a

reasonable basis for the decision. Id. We may not substitute our judgment for that of the agency.

Id. Rather, we must affirm the agency’s decision if more than a scintilla of evidence supports it. Id.



                                           DISCUSSION

                Crawford contends that the trial court erred by affirming his license suspension

because the record contains insufficient evidence that Crawford committed an “identifiable traffic

violation,” which means that Cockrell lacked reasonable suspicion to stop and detain him. Crawford

makes several arguments in support of this contention.

                First, Crawford argues that Cockrell’s failure to identify which “vehicle”—the truck

or the boat trailer—swerved into the oncoming-traffic lane is “crucial, as it is foreseeable that a boat

trailer could swerve slightly, even without intentional movement by the towing vehicle.” Thus,

argues Crawford, Cockrell’s “failure to adequately describe the vehicle makes it impossible to

determine whether an identifiable traffic violation was committed.” This argument fails for two

reasons. First, Cockrell’s report stated that Crawford’s “vehicle” emitted a large cloud of smoke.

The administrative law judge could reasonably infer that Crawford’s truck was more likely to emit

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a cloud of smoke than the trailer it was towing. See id. (we affirm administrative law judge’s

decision if it has reasonable basis in record). Second, in statutes regulating road traffic, the term

“vehicle” applies to both trucks and trailers. See Tex. Transp. Code Ann. § 541.201(23) (West 2011)

(“vehicle” means “a device that can be used to transport or draw persons or property on a highway”).

Thus, if Crawford violated a statute by swerving his “vehicle” into the oncoming-traffic lane, he

violated the statute regardless of whether he swerved his truck or his boat trailer.

               Next, Crawford argues that Cockrell’s report suggests Cockrell might have stopped

Crawford not for a specific traffic violation, but rather “out of concern for [his] well being.” See

Hernandez v. State, 983 S.W.2d 867, 870 (Tex. App.—Austin 1998, pet. ref’d) (officer lacked

reasonable suspicion to stop driver where only articulated reason for stopping driver was concern

for driver’s well being). This argument fails because Cockrell’s report contains detailed descriptions

of erratic driving. Cf. id. The administrative law judge could reasonably infer that these descriptions

were meant to reflect one or more specific traffic violations rather than a generalized concern for

Crawford’s well being. See Mireles, 9 S.W.3d at 131.

               Next, Crawford makes two arguments based on the assumption that if he committed

any traffic violation it must have been failure to maintain a single lane. See Tex. Transp. Code Ann.

§ 545.060(a) (West 2011) (if roadway is divided into two or more clearly marked lanes, motorist

“shall drive as nearly as practical entirely within a single lane”). In the first of these arguments,

Crawford asserts that because Cockrell did not specify how many times Crawford’s “vehicle”

swerved into the oncoming-traffic lane, Cockrell failed to establish that Crawford committed the

offense of failing to maintain a single lane. In support of this argument, Crawford cites State v.



                                                  4
Arriaga, 5 S.W.3d 804, 807 (Tex. App.—San Antonio 1999, pet. ref’d), in which the court held that

an officer lacked reasonable suspicion to stop a motorist partly because the officer could not recall

how many times he saw the motorist’s vehicle drift within its lane.

                Second, Crawford argues that safety is the overriding concern of the statute requiring

motorists to maintain a single lane, and Cockrell’s report did not suggest that Crawford created a

dangerous or unsafe condition by swerving. See Tex. Transp. Code § 545.060(a) (motorist may

“move from the lane [if] that movement can be made safely”); Hernandez, 983 S.W.2d at 871

(“[W]ith respect to a vehicle’s straying over a lane marker, a traffic violation occurs only when the

vehicle’s movement is in some way unsafe.”). Thus, Crawford argues, Cockrell’s report failed to

show that Cockrell had reasonable suspicion to stop Crawford for failing to maintain a single lane.

                The problem with these arguments is that the offense of failing to maintain a single

lane applies when a motorist crosses the line “adjoining two lanes of traffic flowing the same

direction.” See Texas Dep’t of Pub. Safety v. Chang, 994 S.W.2d 875, 878 (Tex. App.—Austin

1999, no pet.). When a motorist crosses into a lane of oncoming traffic, as Crawford did, the

applicable offense is failure to drive on the right-hand side of the road. See id. A motorist must

drive on the right-hand side of the road unless one of the following circumstances exists: the

motorist is passing another vehicle, an obstruction necessitates moving to the left of the center of the

road, the motorist is on a road divided into three marked lanes, or the motorist is on a roadway

restricted to one-way traffic. Tex. Transp. Code Ann. § 545.051(a) (West 2011). If none of these

circumstances exists, then a single instance of crossing into the oncoming-traffic lane on a two-lane

road is a violation of the statute. See Bracken v. State, 282 S.W.3d 94, 98 (Tex. App.—Fort Worth



                                                   5
2009, pet. ref’d); Rubeck v. State, 61 S.W.3d 741, 745 (Tex. App.—Fort Worth 2001, no pet.) (op.

on reh’g). A violation of the statute creates reasonable suspicion justifying a stop. See Bracken,

282 S.W.3d at 98. Unlike a violation for failing to maintain a single lane, a violation for failing to

drive on the right-hand side of the road does not require an unsafe maneuver. Compare Tex. Transp.

Code § 545.051(a) with Tex. Transp. Code § 545.060(a).

               Bearing all this in mind, the administrative law judge could reasonably conclude that

Cockrell had reasonable suspicion to stop Crawford for failing to drive on the right-hand side of the

road. See id. § 545.051(a). Cockrell’s report states that Crawford crossed into the oncoming-traffic

lane multiple times. See Bracken, 282 S.W.3d at 98 (officer had reasonable suspicion to stop

motorist for violating transportation code section 545.051(a) where officer saw motorist cross into

oncoming-traffic lane once). There is no indication (and Crawford makes no argument) that a

circumstance existed that allowed Crawford to cross legally into the oncoming-traffic lane even

once, let alone repeatedly.2 Thus, Cockrell’s report was a reasonable basis for the administrative law

judge to conclude that Cockrell had reasonable suspicion to stop Crawford for failing to drive on the

right-hand side of the road.




       2
          Crawford does argue that Cockrell did not specify whether Crawford swerved in a passing
or no-passing zone. While it is true that Crawford could have legally moved left to pass other
vehicles if he was in a passing zone, see Tex. Transp. Code Ann. § 545.051(a) (West 2011), Cockrell
described Crawford’s driving as “swerving several times to the left.” (Emphasis added.) It was
reasonable for the administrative law judge to interpret the term “swerving” as being inconsistent
with a legal, deliberate passing maneuver, especially given that Crawford swerved “several times.”
This conclusion is reinforced by the fact that Crawford’s driving made Cockrell “concern[ed] for
[Crawford’s] well being”; the administrative law judge could reasonably infer that if Crawford had
made legal, deliberate passing maneuvers, Cockrell would not have been concerned.

                                                  6
                Even if Cockrell’s report did not justify a finding that Cockrell had reasonable

suspicion to stop Crawford for failing to drive on the right-hand side of the road, the report justified

a finding that Cockrell had reasonable suspicion to stop Crawford for DWI. Whether an officer has

reasonable suspicion to stop a motorist for DWI depends on the totality of the circumstances. Curtis

v. State, 238 S.W.3d 376, 380 (Tex. Crim. App. 2007). A stop for DWI is justified when the officer

has specific articulable facts that, taken together with rational inferences from those facts, lead him

to conclude that a motorist is driving under the influence. See id. at 380-81. Observing a motorist’s

car weaving in and out of its lane several times, over a short distance, late at night, gives rise to a

rational inference that the motorist is intoxicated. Id. at 381. Thus, on the basis of the observations

recounted in Cockrell’s report, the administrative law judge could reasonably conclude that Cockrell

had reasonable suspicion to stop Crawford for DWI.

                In sum, there were multiple bases on which the administrative law judge could

reasonably conclude that Cockrell had reasonable suspicion to stop Crawford. It follows that the trial

court did not err by affirming the administrative law judge’s order suspending Crawford’s license.

See Mireles, 9 S.W.3d at 131 (courts must affirm administrative law judge’s order if it has

reasonable basis in record). We affirm the judgment.



                                                __________________________________________

                                                David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: June 16, 2011


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