                                                                         ACCEPTED
                                                                     13-15-00091-CV
                                                     THIRTEENTH COURT OF APPEALS
                                                            CORPUS CHRISTI, TEXAS
                                                                4/23/2015 5:46:40 PM
                                                                   DORIAN RAMIREZ
                                                                              CLERK

              No. 13-15-00091-CV

                                         FILED IN
                                 13th COURT OF APPEALS
   IN THE THIRTEENTH COURT OF   APPEALS
                             CORPUS   CHRISTI/EDINBURG, TEXAS
     SITTING IN CORPUS CHRISTI, TEXAS
                                  4/23/2015 5:46:40 PM
                                   DORIAN E. RAMIREZ
                                          Clerk

 TEXAS DEPARTMENT OF PUBLIC SAFETY,
                   APPELLANT


                      V.

           ARMANDO CARDENAS,
                    APPELLEE



APPEALED FROM COUNTY COURT AT LAW NO. 7
        HIDALGO COUNTY, TEXAS


            APPELLANT’S BRIEF


                        KEVIN M. GIVENS
                        Supervising Attorney,
                        ALR Appellate Section
                        SBN 00796633
                        P.O. Box 15327
                        Austin, Texas 78761-5327
                        Tel: (512) 424-5193
                        Fax: (512) 424-5221
                        Kevin.Givens@dps.texas.gov

                        ATTORNEY FOR APPELLANT
                        TEXAS DEP’T OF PUB. SAFETY


        ORAL ARGUMENT REQUESTED
                            No. 13-15-00091-CV


              TEXAS DEPARTMENT OF PUBLIC SAFETY,
                                  APPELLANT


                                      V.

                         ARMANDO CARDENAS,
                                   APPELLEE



                  REQUEST FOR ORAL ARGUMENT


      Appellant, Texas Department of Public Safety, believes that oral

argument might benefit the Court in this case and respectfully requests that it

be granted.




                                      ii
                            No. 13-15-00091-CV


                TEXAS DEPARTMENT OF PUBLIC SAFETY,
                                 APPELLANT


                                     V.

                        ARMANDO CARDENAS,
                                  APPELLEE



                IDENTITY OF PARTIES AND COUNSEL


      Appellant certifies that the following is a complete list of the parties,

attorneys, and any other persons who have any interest in the outcome of

this lawsuit.

APPELLANT:                             COUNSEL FOR APPELLANT:

Texas Department of Public Safety      Kevin M. Givens
5805 N. Lamar Blvd.                    Supervising Attorney,
P.O. Box 15327                         ALR Appellate Section
Austin, Texas 78761-5327               SBN 00796633

                                       Texas Department of Public Safety
                                       P.O. Box 15327
                                       Austin, Texas 78761-5327
                                       Tel: (512) 424-5193
                                       Fax: (512) 424-5221
                                       Kevin.Givens@dps.texas.gov




                                      iii
                   Laura Garza
                   Field Attorney
                   SBN 24004664

                   Texas Dep’t of Public Safety
                   2525 N. International Blvd.
                   Weslaco, Texas 78596
                   Tel: (956) 565-7130
                   Fax: (956) 565-7133
                   Laura.Garza@dps.texas.gov



APPELLEE:          COUNSEL FOR APPELLEE:

Armando Cardenas   Sergio Munoz, Jr.
                   24058009
                   1110 South Closner
                   Edinburg, Texas 78539
                   Sergio@sergiomunozjr.com




                   iv
                                    TABLE OF CONTENTS
REQUEST FOR ORAL ARGUMENT .......................................................... ii

IDENTITY OF PARTIES AND COUNSEL ................................................ iii

TABLE OF CONTENTS................................................................................ v

INDEX OF AUTHORITIES ........................................................................ vii

APPELLANT’S BRIEF .................................................................................. 1

STATEMENT OF THE CASE ...................................................................... 3

ISSUES PRESENTED ................................................................................... 4

STATEMENT OF FACTS ............................................................................. 5

   Cardenas’s Arrest ....................................................................................... 5

   The Administrative Hearing ....................................................................... 6

   Review by the Trial Court ........................................................................... 6

SUMMARY OF THE ARGUMENT ............................................................. 7

STANDARD OF REVIEW ............................................................................ 8

ISSUE ONE .................................................................................................. 10

                Deputy Castellano and Trooper Gonzalez filed reports in
         connection with Cardenas’s arrest, as required by law. The
         reports detailed factual findings of a lawful investigation. The
         ALJ properly admitted the reports as exceptions to hearsay
         under rule 803(8) of the Texas Rules of Civil Procedure. Did
         the trial court err by impliedly ruling that the reports were
         inadmissible?
ARGUMENT AND AUTHORITY .............................................................. 10




                                                      v
ISSUE TWO ................................................................................................. 14

                Cardenas was driving with a defective license plate lamp
         that was completely out. After he was stopped, he exhibited
         numerous indicators of intoxication. There was reasonable
         suspicion to stop his car and probable cause to believe he was
         driving while intoxicated. Did the trial court err by impliedly
         ruling that there was not reasonable suspicion or probable cause
         to stop or arrest Cardenas?
ARGUMENT AND AUTHORITY .............................................................. 14

   Reasonable Suspicion to Stop Cardenas .................................................. 15

   Probable Cause to Believe Cardenas Was Driving While Intoxicated .... 18

CONCLUSION ............................................................................................. 22

PRAYER ....................................................................................................... 23

CERTIFICATE OF COMPLIANCE............................................................ 24

CERTIFICATE OF SERVICE ..................................................................... 24

INDEX OF APPENDICES........................................................................... 25




                                                       vi
                               INDEX OF AUTHORITIES

CASES
Amador v. State,
  275 S.W.3d 872 (Tex. Crim. App. 2009) ................................................. 19

Blankenbeker v. Tex. Dep’t of Pub. Safety,
  990 S.W.2d 813 (Tex. App.—Austin 1999, pet. denied) ......................... 11

Cotton v. State,
  686 S.W.2d 140 (Tex. Crim. App. 1985) ................................................. 20

Downer v. Aquamarine Operators, Inc.,
  701 S.W.2d 238 (Tex. 1985) ...................................................................... 9

Fienen v. State,
  390 S.W.3d 328 (Tex. Crim. App. 2012) ................................................... 9
Ford v. State,
  26 S.W.3d 669 (Tex. App.—Corpus Christi 2000, no pet.) ..................... 17
Garcia v. State,
  827 S.W.2d 937 (Tex. Crim. App. 1992) ................................................. 17
Hesskew v. Tex. Dep’t of Pub. Safety,
  144 S.W.3d 189 (Tex. App.—Tyler 2004, no pet.) .................................. 16
Hughes v. State,
  24 S.W.3d 833 (Tex. Crim. App. 2000) ................................................... 18
Kiffe v. State,
  361 S.W.3d 104 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) ........ 20

Mireles v. Tex. Dep’t of Pub. Safety,
  9 S.W.3d 128 (Tex. 1999). ......................................................................... 8

Montanez v. State,
 211 S.W.3d 412 (Tex. App.—Waco 2006, no pet.) ................................. 17
Palacios v. State,
  319 S.W.3d 68 (Tex. App.—San Antonio 2010, pet. ref’d) .................... 17


                                                 vii
Porter v. Tex. Dep’t of Pub. Safety,
  712 S.W.2d 263 (Tex. App.—San Antonio 1986, no writ)...................... 10

Schnidt v. State,
  357 S.W.3d 845 (Tex. App.—Eastland 2012, pet. ref’d) ......................... 18

Soliz v. State,
  No. 13-06-00310-CR, 2007 WL 1720202
  (Tex. App.—Corpus Christi June 14, 2007, no pet.)
  (mem. op., not designated for publication)............................................... 20

State v. $217,590.00 in U.S. Currency,
  18 S.W.3d 631 (Tex. 2000) ........................................................................ 9

State v. Garrett,
  22 S.W.3d 650 (Tex. App.—Austin 2000, no pet.) .................................. 20

State v. McCall,
  929 S.W.2d 601 (Tex. App.—San Antonio 1996, no pet.) ...................... 17
Tex. Dep’t of Pub. Safety v. Bond,
  955 S.W.2d 441 (Tex. App.—Fort Worth 1997, no pet.) ........................ 10
Tex. Dep’t of Pub. Safety v. Caruana,
  363 S.W.3d 558 (Tex. 2012) .................................................................... 11

Tex. Dep’t of Pub. Safety v. Duggin,
  962 S.W.2d 76 (Tex. App.—Houston [1st Dist.] 1997, no pet.) .............. 12

Tex. Dep’t of Pub. Safety v. Gilfeather,
  293 S.W.3d 875 (Tex. App.—Fort Worth 2009, no pet.) ........................ 20

Tex. Dep’t of Pub. Safety v. Jennings,
  1 S.W.3d 348 (Tex. App.—Corpus Christi 1999, no pet.) ......................... 8
Tex. Dep’t of Pub. Safety v. Struve,
  79 S.W.3d 796 (Tex. App.—Corpus Christi 2002, pet. denied) ................ 8

Vicknair v. State,
  751 S.W.2d 180 (Tex. Crim. App. 1986) ................................................. 17




                                                viii
STATUTES
TEX. GOV’T CODE ANN. ch. 2001 (Vernon 2008)
  § 2001.174 .................................................................................................. 8

TEX. TRANSP. CODE ANN. ch. 524 (Vernon 2007)
  § 524.002 .................................................................................................... 8
  § 524.043 .................................................................................................... 8

TEX. TRANSP. CODE ANN. ch. 543 (Vernon 2011)
  § 543.001 .................................................................................................. 17

TEX. TRANSP. CODE ANN. ch. 547 (Vernon 2011)
  § 547.322 .................................................................................................. 16
  § 547.333 .................................................................................................. 16
TEX. TRANSP. CODE ANN. ch. 724 (Vernon 2011)........................................ 14
  § 724.032 .................................................................................................. 10
  § 724.042 .................................................................................................. 14
  § 724.047 .................................................................................................... 8

RULES
1 TEX. ADMIN. CODE § 159.211 (2014) ........................................................ 10

37 TEX. ADMIN. CODE § 17.4 (2014) ............................................................ 10
Tex. R. Evid. 803(8) (1998, amended 2015) ...................................... 8, 10, 11




                                                       ix
                           No. 13-15-00091-CV


             TEXAS DEPARTMENT OF PUBLIC SAFETY,
                                APPELLANT


                                    V.

                        ARMANDO CARDENAS,
                                 APPELLEE



                         APPELLANT’S BRIEF
      The Texas Department of Public Safety, Appellant in the above

referenced cause, respectfully submits this brief in appeal of a judgment

rendered in favor of Appellee, Armando Cardenas. This appeal is from the

County Court at Law No. 7, of Hidalgo County, Texas, the Honorable

Sergio Valdez, judge presiding, in which Appellee brought a petition for

judicial review of the decision issued by the State Office of Administrative

Hearings, the Honorable Melissa M. Ricard, judge presiding, sustaining the

Department’s suspension of Appellee’s driver license.

      For clarity and brevity, the Appellant, Texas Department of Public

Safety, will be referred to as “the Department,” and the Appellee, Armando

Cardenas, will be referred to as “Cardenas.”            The State Office of

Administrative Hearings will be referred to as “SOAH.” The administrative

law judge will be referred to as “the ALJ,” and the County Court at Law No.


                                     1
7 will be referred to as “the trial court.” Citations to the Clerk’s Record will

be CR at [page number]. Citations to the Reporter’s Record will be RR

[volume number] at [page number].




                                       2
                       STATEMENT OF THE CASE
      This appeal comes from a contested case under the Administrative

Procedure Act arising out of an administrative license suspension based on

Cardenas’s refusal of an alcohol concentration test.         The administrative

hearing was held pursuant to chapter 724 of the Transportation Code,

chapter 2001 of the Government Code, and the applicable administrative

rules of SOAH and the Department. 1

      The Department appeals the trial court’s final order reversing the

administrative decision of October 6, 2014, sustaining the Department’s

suspension of Cardenas’s driver license. The trial court’s order was signed

on January 26, 2015. 2 This appeal was timely perfected on February 24,

2015. 3




1
  TEX. TRANSP. CODE ANN. ch. 724 (Vernon 2011); TEX. GOV’T CODE ANN. ch. 2001
(Vernon 2008) (Administrative Procedure Act); 1 TEX. ADMIN. CODE ch. 159 (2014)
(State Office of Admin. Hearings, Admin. License Suspension Hearings); 37 TEX.
ADMIN. CODE ch. 17 (2014) (Texas Dep’t of Pub. Safety, Admin. License Revocation).
2
  CR at 50.
3
  CR at 51.
                                        3
                   ISSUES PRESENTED
                         ISSUE ONE

       Deputy Castellano and Trooper Gonzalez filed reports in
connection with Cardenas’s arrest, as required by law. The
reports detailed factual findings of a lawful investigation. The
ALJ properly admitted the reports as exceptions to hearsay
under rule 803(8) of the Texas Rules of Civil Procedure. Did
the trial court err by impliedly ruling that the reports were
inadmissible?



                         ISSUE TWO

       Cardenas was driving with a defective license plate lamp
that was completely out. After he was stopped, he exhibited
numerous indicators of intoxication. There was reasonable
suspicion to stop his car and probable cause to believe he was
driving while intoxicated. Did the trial court err by impliedly
ruling that there was not reasonable suspicion or probable cause
to stop or arrest Cardenas?




                               4
                            STATEMENT OF FACTS

                                 Cardenas’s Arrest

       On Saturday, May 17, 2014, Hidalgo County Deputy Sheriff Armando

Castellano conducted a traffic stop on a vehicle with a defective license plate

lamp. 4 The driver, Armando Cardenas, smelled strongly of alcohol, had

slurred speech, bloodshot eyes, unsteady balance, and admitted that he had

been drinking.5 Trooper Hector Gonzalez arrived at the scene and assisted

with the investigation. 6 Trooper Gonzalez administered the horizontal gaze

nystagmus field sobriety test, and the results indicated that Cardenas was

intoxicated. 7       Cardenas refused a portable breath test, and other field

sobriety tests were not conducted due to safety concerns. 8 Cardenas was

arrested for driving while intoxicated and provided with the statutory

warnings.9 He was asked to provide a specimen of breath and refused the

request.10




4
  CR at 42.
5
  CR at 42.
6
  CR at 36.
7
  CR at 37-38, 41.
8
  CR at 38.
9
  CR at 38, 44.
10
   CR at 38, 44.
                                         5
                            The Administrative Hearing

       Cardenas requested a hearing to contest the suspension of his driver

license based on his refusal of the breath test.          At the hearing, the

Department’s evidence consisted of Trooper Gonzalez’s report, Deputy

Castellano’s affidavit, and Cardenas’s driving record, all of which were

admitted over Cardenas’s objections.11 Cardenas did not offer any evidence

in his defense.12 After the hearing concluded, the ALJ signed an order

sustaining the suspension of Cardenas’s driver license for two years. 13

                             Review by the Trial Court

       Cardenas appealed the administrative decision to the Hidalgo County

Court at Law Number 7, arguing that there was no reasonable suspicion for

the stop. 14 At the hearing before the trial court, Cardenas also complained

that the ALJ improperly overruled his objections to the Department’s

exhibits. 15 After hearing the arguments of the parties, the trial court reversed

the administrative decision.16 It is from that decision the Department now

appeals.




11
   CR at 25-28, 35-47.
12
   CR at 29.
13
   CR at 16.
14
   CR at 5-7.
15
   RR vol. 3 at 5-6, 7-9.
16
   CR at 50.
                                        6
                    SUMMARY OF THE ARGUMENT
      The    ALJ     properly      overruled   Cardenas’s   objections   to   the

Department’s exhibits. Each of the Department’s exhibits were admissible

as exceptions to hearsay.         The fact that the ALJ cited case law when

explaining her rulings was not a demonstration of bias, as Cardenas argued

at the trial court, but merely an attempt to educate counsel on the current

state of the law. Cardenas failed to explain why Texas Department of Public

Safety vs. Caruana, the case cited by the ALJ, was wrongly decided or

inapplicable to this case.        If the trial court reversed the administrative

decision on the basis that the officers’ reports should not have been

admitted, it erred in doing so.

      In addition, there was reasonable suspicion to stop Cardenas and

probable cause to believe he was driving while intoxicated. Cardenas was

driving with a license plate lamp that was completely out, and he exhibited

numerous symptoms of intoxication.             If the trial court reversed the

administrative decision on the basis that Cardenas was illegally stopped or

arrested, it erred in doing so.




                                          7
                            STANDARD OF REVIEW
       Administrative License Revocation cases are reviewed under the

substantial evidence standard of review. 17 Under a substantial evidence

review, the administrative decision may not be reversed unless it prejudices

the substantial rights of the appellant, and is:

       (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. 18

       This case presents a question about the admissibility of documents

under Texas Rule of Evidence 803(8). 19              Administrative rulings on the

admission of evidence are reviewed under an abuse of discretion standard.20

The test for abuse of discretion is whether the court’s action was arbitrary or

unreasonable or whether the court acted without reference to any guiding


17
   See TEX. TRANSP. CODE ANN. §§ 524.002(b), 524.043 (Vernon 2007) TEX. TRANSP.
CODE ANN. § 724.047 (Vernon 2011); TEX. GOV’T CODE ANN. § 2001.174 (Vernon
2008); Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999).
18
   § 2001.174(2).
19
   See Tex. R. Evid. 803(8) (1998, amended 2015). A non-substantive revision of the
rules became effective on April 1, 2015. See 2014 Texas Court Order 0016 (C.O. 0016).
All references to Rule 803 will be to the version in effect at the time of Cardenas’s
hearing, unless otherwise noted.
20
   Tex. Dep’t of Pub. Safety v. Struve, 79 S.W.3d 796, 802-03 (Tex. App.—Corpus
Christi 2002, pet. denied); Tex. Dep’t of Pub. Safety v. Jennings, 1 S.W.3d 348, 351 (Tex.
App.—Corpus Christi 1999, no pet.).
                                            8
rules and principles. 21 The case also presents issues of reasonable suspicion

and probable cause, where substantial deference is given to the findings of

fact made by the administrative law judge, while the application of law to

those facts is reviewed de novo.22




21
   Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
22
   See Fienen v. State, 390 S.W.3d 328, 335 (Tex. Crim. App. 2012); State v. $217,590.00
in U.S. Currency, 18 S.W.3d 631, 632 (Tex. 2000).
                                           9
                                     ISSUE ONE

                                      (Restated)

              Deputy Castellano and Trooper Gonzalez filed reports in
       connection with Cardenas’s arrest, as required by law. The
       reports detailed factual findings of a lawful investigation. The
       ALJ properly admitted the reports as exceptions to hearsay
       under rule 803(8) of the Texas Rules of Civil Procedure. Did
       the trial court err by impliedly ruling that the reports were
       inadmissible?

                       ARGUMENT AND AUTHORITY
       Deputy Castellano and Trooper Gonzalez both participated in the

arrest of Cardenas. Deputy Castellano made the initial stop and Trooper

Gonzalez completed the arrest.23 Each of the officers had an obligation to

report their observations to the Department of Public Safety. 24 And, each

officer made a written report of his observations, which were each submitted

to the Department. 25       Consequently, each report was admissible at the

administrative hearing. 26




23
   CR at 36, 42.
24
   See TEX. TRANSP. CODE ANN. § 724.032 (Vernon 2011); 37 TEX. ADMIN. CODE § 17.4
(1) (2014); Tex. Dep’t of Pub. Safety v. Bond, 955 S.W.2d 441, 446 (Tex. App.—Fort
Worth 1997, no pet.) (“The information conveyed to [the arresting officer] by [the
stopping officer] concerning her observations of [the defendant’s] driving and the reasons
why she stopped him were made under a ‘duty imposed by law as to which matters there
was a duty to report.’”) (quoting Porter v. Tex. Dep’t of Pub. Safety, 712 S.W.2d 263,
264–65 (Tex. App.—San Antonio 1986, no writ)).
25
   CR at 36-41, 42.
26
   Tex. R. Evid. 803(8); 1 TEX. ADMIN. CODE § 159.211(c)(2) (2014) (“An officer’s
sworn report of relevant information shall be admissible as a public record.”).
                                           10
       Cardenas objected to the admission of Deputy Castellano’s report

because it was not specifically incorporated into Trooper Gonzalez’s

report.27 However, as the ALJ explained to Cardenas, the report did not

have to be incorporated, because it was independently admissible. 28

       At the time of Cardenas’s hearing, Rule 803(8) provided that the

following were exceptions to the hearsay rule:

       Records, reports, statements, or data compilations, in any form,
       of public offices or agencies setting forth:
           (A) the activities of the office or agency;
           (B) matters observed pursuant to duty imposed by law
           as to which matters there was a duty to report,
           excluding in criminal cases matters observed by police
           officers and other law enforcement personnel; or
           (C) in civil cases as to any party and in criminal cases
           as against the state, factual findings resulting from an
           investigation made pursuant to authority granted by
           law;
       unless the sources of information or other circumstances
       indicate lack of trustworthiness.29

ALR hearings are civil hearings to which the “criminal case” exceptions in

Rule 803(8) do not apply. 30



27
   CR at 25-26.
28
   CR at 26. See Tex. R. Evid. 803(8) (permitting admissibility of public records); Tex.
Dep’t of Pub. Safety v. Caruana, 363 S.W.3d 558, 561-65 (Tex. 2012) (holding that a
document that meets the requirements of Rule 803(8) is admissible in an ALR hearing,
regardless of its status as a “sworn report” under SOAH rules).
29
   Tex. R. Evid. 803(8).
30
   Blankenbeker v. Tex. Dep’t of Pub. Safety, 990 S.W.2d 813, 817 (Tex. App.—Austin
1999, pet. denied) (“Those exceptions to the exception survived the combination of the
civil and criminal rules of evidence, but do not apply to license suspensions, which are
                                          11
      Deputy Castellano’s affidavit and Trooper Gonzalez’s report each set

out “matters observed pursuant to duty imposed by law as to which matters

there was a duty to report,” as well as “factual findings resulting from an

investigation made pursuant to authority granted by law.” Each document

was independently admissible under Rule 803(8) and Caruana, regardless of

whether Deputy Castellano’s report was incorporated by reference into

Trooper Gonzalez’s report. The ALJ did not err by overruling Cardenas’s

objection.

      In Cardenas’s appeal to the trial court, he attacked the impartiality of

the ALJ because she cited the Caruana decision when overruling his

objection to the Department’s exhibit. 31 However, Cardenas made no effort

to explain why Caruana was wrongly decided or why it did not apply to his

case.32 Nor is there any legal basis for Cardenas’s insinuation that the ALJ

was required to wait for the Department’s response before ruling on his




civil cases.”); Tex. Dep’t of Pub. Safety v. Duggin, 962 S.W.2d 76, 80 (Tex. App.—
Houston [1st Dist.] 1997, no pet.) (“Because the [administrative law] hearing and
Duggin’s appeal to the county court were both civil proceedings, the civil rules of
evidence apply, not the criminal rules.”).
31
   RR vol. 3 at 9, 14.
32
   RR vol. 3 at 6-9, 12-14.
                                        12
objection. 33 The ALJ should not have been reversed for knowing the law or

sharing that knowledge with counsel.

       If the trial court reversed the ALJ because she overruled Cardenas’s

objection, because she explained her reasoning, or because she did not wait

for a response from the Department before ruling, it erred in doing so. This

Court should reverse the trial court’s decision and reinstate the

administrative order sustaining the suspension of Cardenas’s driver license.




33
   CR at 28. RR vol. 3 at 14 (“She is the one that herself, even in the hearing, brings up
the Carauna [sic] case without even the State offering it up as supporting evidence to
allow the admission of the documents.”).
                                           13
                                 ISSUE TWO

                                   (Restated)

             Cardenas was driving with a defective license plate lamp
      that was completely out. After he was stopped, he exhibited
      numerous indicators of intoxication. There was reasonable
      suspicion to stop his car and probable cause to believe he was
      driving while intoxicated. Did the trial court err by impliedly
      ruling that there was not reasonable suspicion or probable cause
      to stop or arrest Cardenas?

                     ARGUMENT AND AUTHORITY
      Cardenas’s driver license was suspended under chapter 724 of the

Transportation Code.34 In a license suspension case under chapter 724, there

are four elements that the Department must prove: (1) that there was

reasonable suspicion or probable cause to stop or arrest the person; (2) that

there was probable cause to believe the person was driving while

intoxicated; (3) that the person was placed under arrest and requested to

provide a specimen; and (4) that the person refused the request. 35

      Cardenas does not contest the third and fourth issues in this case, and

there is substantial evidence in the record to support the ALJ’s affirmative

finding on each of those issues. Cardenas was arrested for driving while

intoxicated, and he was requested to provide a breath specimen. 36        He



34
   See TEX. TRANSP. CODE ANN. ch. 724 (Vernon 2011).
35
   See TEX. TRANSP. CODE ANN. § 724.042 (Vernon 2011).
36
   CR at 38, 44.
                                       14
refused that request, and signed the statutory warning, acknowledging his

refusal. 37 Thus, the third and fourth issues were satisfied.

       Apart from the admissibility of the Department’s exhibits, addressed

in Issue One, the contested issues in this case are whether there was

reasonable suspicion to stop Cardenas and probable cause to believe he was

driving while intoxicated. There was reasonable suspicion to stop Cardenas

for committing a traffic offense and numerous indicators suggested that he

was driving while intoxicated. The trial court erred if it impliedly reversed

the ALJ on either of these grounds.

                   Reasonable Suspicion to Stop Cardenas

       The ALJ did not err in finding that there was reasonable suspicion to

stop Cardenas for failing to dim his headlamps and for driving with a broken

license plate lamp. 38 According to Deputy Castellano’s affidavit, he was on

patrol at FM 2221 and Bentsen Palm Drive, and Cardenas’s high beam

headlights were blinding his vision.39         Then Deputy Castellano saw

Cardenas’s license plate lamp was out after Cardenas passed through the

intersection. 40 Given these facts, the ALJ could draw a reasonable inference



37
   CR at 44.
38
   CR at 16.
39
   CR at 42.
40
   CR at 42.
                                       15
that Deputy Castellano was in an oncoming vehicle, and Cardenas failed to

dim his headlights as their two vehicles passed each other, in violation of

section 547.333(c)(1)(B) of the Transportation Code.41

       Deputy Castellano also had reasonable suspicion to stop Cardenas for

driving with a defective license plate lamp. Regardless of whether or not

Cardenas’s failure to dim his headlights constituted a traffic violation,

Deputy Castellano saw that Cardenas had a defective license plate lamp

before initiating the traffic stop.42         Thus, each violation presented an

independent basis for the stop.

       Section 547.322 of the Transportation Code requires vehicles to have

a “taillamp or a separate lamp . . . constructed and mounted to emit a white

light that: (1) illuminates the rear license plate; and (2) makes the plate

clearly legible at a distance of 50 feet from the rear.” 43 Failure to display the




41
   See TEX. TRANSP. CODE ANN. § 547.333 (Vernon 2011); Hesskew v. Tex. Dep’t of Pub.
Safety, 144 S.W.3d 189, 192 (Tex. App.—Tyler 2004, no pet.) (“Sworn affidavits of law
enforcement officers must be viewed by the courts in a common sense, not hyper-
technical, fashion. Courts are permitted to draw reasonable inferences from the facts
supporting a law enforcement officer’s sworn statements.”) (citations omitted).
42
   CR at 42 (“I observed the vehicle’s rear license plate light was defective. I then
conducted a traffic stop on the vehicle with my duty patrol unit.”).
43
   TEX. TRANSP. CODE ANN. § 547.322(f) (Vernon 2011).
                                         16
statutorily required lighting is a traffic offense, for which a vehicle may be

stopped and the driver arrested. 44

       Deputy Castellano described Cardenas’s license plate lamp as

“defective.” 45    Trooper Gonzalez expanded upon Deputy Castellano’s

description, reporting that he “observed the rear license plate lamps of the

black Impala were completely out and not working.” 46 Thus, there was

reasonable suspicion for the stop. 47

       In his petition to the trial court, Cardenas argued that his case

presented a “mere equipment violation,” controlled by Vicknair v. State, 751

S.W.2d 180 (Tex. Crim. App. 1986).48                 However, Vicknair is easily

distinguished. In that case, the Court of Criminal Appeals held that, as long

as the cracked lens at issue continued to emit a red light in compliance with

statutory requirements, there was no traffic violation. 49 On the other hand,

the Vicknair court specifically acknowledged that, if the lens failed to emit


44
   TEX. TRANSP. CODE ANN. § 543.001 (Vernon 2011); see also Garcia v. State, 827
S.W.2d 937, 944 (Tex. Crim. App. 1992); Ford v. State, 26 S.W.3d 669, 673 (Tex.
App.—Corpus Christi 2000, no pet.).
45
   CR at 42.
46
   CR at 37.
47
   Palacios v. State, 319 S.W.3d 68, 72-73 (Tex. App.—San Antonio 2010, pet. ref’d);
Montanez v. State, 211 S.W.3d 412, 415 (Tex. App.—Waco 2006, no pet.); State v.
McCall, 929 S.W.2d 601, 603 (Tex. App.—San Antonio 1996, no pet.).
48
   CR at 6.
49
   Vicknair v. State, 751 S.W.2d 180, 189 (Tex. Crim. App. 1986) (“If the tail light lens
became fractured after inspection, but never degenerated to the point of either being a
safety hazard or violating the standards of Art. XIV, the driver of the vehicle would be
free from arrest.”).
                                           17
the required red light, there would be reasonable suspicion to stop the

vehicle:

       Arguably, such a motor vehicle could be legally driven until the
       tail light degenerated to the point that it did not meet the
       standards of Art. XIV, § 111, i.e., failure to emit a red light for
       a distance of 1,000 feet, or until it violated Art. XV, i.e., driving
       a motor vehicle without a valid inspection sticker, whichever
       came earlier.50

In the present case, Cardenas’s license plate lamp had completely failed, so

Vicknair does not apply, and there was reasonable suspicion to stop his car.

If the trial court reversed the administrative decision because it believed

there was not reasonable suspicion for the stop, it erred in doing so.

     Probable Cause to Believe Cardenas Was Driving While Intoxicated

       The ALJ did not err in finding that there was probable cause to

believe Cardenas was driving while intoxicated. 51 “Probable cause requires

more than mere suspicion but far less evidence than that needed to support a

conviction or even that needed to support a finding by a preponderance of

the evidence.”52 Probable cause exists when “the facts and circumstances

within the arresting officer’s knowledge and of which he has reasonably

trustworthy information are sufficient to warrant a prudent man in believing



50
   Id. (emphasis added).
51
   CR at 16.
52
   Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000); accord Schnidt v. State,
357 S.W.3d 845, 854 (Tex. App.—Eastland 2012, pet. ref’d).
                                          18
that the person arrested had committed or was committing an offense.” 53 In

this case, Trooper Gonzalez had more than mere suspicion that Cardenas had

been driving while intoxicated. The facts and circumstances within Trooper

Gonzalez’s knowledge were sufficient to lead a prudent person to believe

that Cardenas had been driving while intoxicated.

       Cardenas had a strong odor of alcohol on his breath, slurred speech,

bloodshot eyes, and unsteady balance.54 He told Deputy Castellano that he

had one beer and contradicted himself by telling Trooper Gonzalez that he

had two beers. 55 Cardenas had six of six clues on the horizontal gaze

nystagmus test and refused a portable breath test. 56 Other field sobriety tests

were not attempted due to safety concerns.57

       Cardenas’s case is almost identical to another in which this Court

found there was probable cause to believe a person was driving while

intoxicated. In Soliz v. State, “Trooper Mingst testified that he witnessed

four signs of appellant’s intoxication: (1) appellant smelled of alcohol, (2)

appellant admitted to consuming alcohol, (3) appellant showed six of six

clues on the HGN test, and (4) the PBT showed that appellant’s blood



53
   Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).
54
   CR at 37, 42.
55
   CR at 37, 42.
56
   CR at 37-38.
57
   CR at 38.
                                         19
alcohol concentration was above 0.08.” 58 In the present case, Cardenas had

even more traditional symptoms of intoxication, including bloodshot eyes,

slurred speech, and unsteady balance.59               And Cardenas’s refusal of the

portable breath test can also be considered as part of the probable cause

analysis.60 Considering the totality of the circumstances, there was probable

cause to believe Cardenas had been driving while intoxicated. The trial

court erred if it reversed the administrative decision on this ground.

       There is substantial evidence in the record to support the ALJ’s

affirmative findings on each of the four elements the Department was

required to prove in this ALR breath test refusal case. There was reasonable

suspicion to stop Cardenas for a traffic violation and probable cause to

believe he had been driving while intoxicated based on numerous symptoms

of intoxication, in addition to the facts that he failed one field sobriety test



58
   Soliz v. State, No. 13-06-00310-CR, 2007 WL 1720202, at *3 (Tex. App.—Corpus
Christi June 14, 2007, no pet.) (mem. op., not designated for publication).
59
   Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985); Kiffe v. State, 361
S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (“A lack of balance
and slurred speech can prove intoxication.”); Tex. Dep’t of Pub. Safety v. Gilfeather, 293
S.W.3d 875, 880 (Tex. App.—Fort Worth 2009, no pet.) (“Bloodshot eyes, an odor of
alcohol on a person’s breath, and unsteady balance are all classic symptoms of
intoxication.”).
60
   Gilfeather, 293 S.W.3d at 880 (“[T]his court and numerous other courts of appeals
have held that the refusal to participate in field sobriety tests is a factor to be considered
in the totality of the circumstances.”); State v. Garrett, 22 S.W.3d 650, 655 (Tex. App.—
Austin 2000, no pet.) (“[W]here many of the missing factors are due to a defendant’s
conduct, we believe that the officers could reasonably consider that conduct as part of the
totality of the circumstances.”).
                                             20
and refused another. And it is undisputed that Cardenas was arrested and

requested to provide a breath specimen and that he refused that request. If

the trial court reversed the administrative decision on any basis other than

the evidentiary ruling addressed in Issue One, above, it erred in doing so.

This Court should reverse the trial court and reinstate the administrative

decision, sustaining the suspension of Cardenas’s driver license.




                                     21
                               CONCLUSION
      The ALJ properly admitted both Deputy Castellano’s affidavit and

Trooper Gonzalez’s report as exceptions to hearsay. Both documents were

public records on file with the Texas Department of Public Safety, pursuant

to a duty imposed by law. And both documents set out factual findings of an

investigation made pursuant to authority granted by law. The ALJ correctly

overruled Cardenas’s objections and was under no obligation to wait for the

Department’s response before doing so. If the trial court reversed the ALJ

on this ground, it erred in doing so.

      The Department also proved each of the elements required to sustain a

suspension of Cardenas’s driver license. There was reasonable suspicion to

stop Cardenas based on a traffic violation, because his license plate lamp

was completely out. There was also probable cause to believe Cardenas was

driving while intoxicated based on the number of symptoms of intoxication

he exhibited, as well as the facts that he failed one field sobriety test and

refused another. Finally, Cardenas was arrested and asked to provide a

breath specimen and he refused that request. Since the Department proved

all of the required elements, the trial court erred by reversing the

administrative decision.    This Court should reverse the trial court and

reinstate the administrative suspension of Cardenas’s driver license.


                                        22
                                PRAYER
      WHEREFORE,        PREMISES         CONSIDERED,      the   Department

respectfully prays that this Honorable Court reverse the order of the County

Court at Law No. 7 and affirm the administrative order of October 6, 2014,

sustaining the Department’s suspension of Cardenas’s driver license. The

Department further prays that it recover the costs of this appeal. See TEX.

CIV. PRAC. & REM. CODE ANN. § 8.02 (Vernon 2002).

                                     Respectfully Submitted,

                                     /s/   Kevin M. Givens
                                     KEVIN M. GIVENS
                                     Supervising Attorney,
                                     ALR Appellate Section
                                     SBN 00796633
                                     P.O. Box 15327
                                     Austin, Texas 78761-5327
                                     Tel: (512) 424-5193
                                     Fax: (512) 424-5221
                                     Kevin.Givens@dps.texas.gov

                                     ATTORNEY FOR APPELLANT
                                     TEXAS DEP’T OF PUB. SAFETY




                                    23
                  CERTIFICATE OF COMPLIANCE
      I certify that this document was prepared with Microsoft Word, and

that, according to that program’s word-count function, the sections covered

by Texas Rule of Appellate Procedure 9.4(i)(1) contain 3782 words.

                                      Respectfully Submitted,

                                      /s/  Kevin M. Givens
                                      KEVIN M. GIVENS



                     CERTIFICATE OF SERVICE
      I hereby certify that I served a true and correct copy of the above and

foregoing Appellant’s Reply Brief by email, per Tex. R. App. P. 9.5(b)(1), to

Sergio Munoz, Jr., counsel of record for Appellee, Armando Cardenas, at

Sergio@sergiomunozjr.com, on April 27, 2015.

                                      Respectfully Submitted,

                                      /s/  Kevin M. Givens
                                      KEVIN M. GIVENS




                                     24
                      INDEX OF APPENDICES
TAB A
    Order of January 26, 2015, County Court at Law No. 7,
          Honorable Sergio Valdez, presiding.

TAB B
    Administrative Decision of October 6, 2014,
         Honorable Melissa M. Ricard, presiding.




                                  25
TAB A
Accepted by: Oscar Gonzalez                                                                                  Electronically Submitted
                                                                                                                1/16/2015 3:22:48 PM
                                                                                                         Hidalgo County Clerks Office



                                               &$86(12&/*
            
            $50$1'2&$5'(1$6                                
 ,17+(&2817<&2857
                $SSHOODQW                                  

                                                           

            96                                             
 $7/$:180%(56(9(1
                                                            

            7(;$6'(3$570(172)                             

            38%/,&6$)(7<                                   

                  $SSHOOHH                                 
 +,'$/*2&2817<7(;$6
                                                             
                                                          25'(5
            
                   2Q WKLV GD\ FDPH WR EH KHDUG $SSHOODQW¶V 3HWLWLRQ IRU -XGLFLDO 5HYLHZ LQ WKH DERYH

            QXPEHUHGDQGVW\OHGFDXVH

                   7KH FDVH ZDV FDOOHG IRU DUJXPHQW ZLWKRXW REMHFWLRQ E\ WKH SDUWLHV  7KH $SSHOODQW

            DSSHDUHG E\ DWWRUQH\ DQG DQQRXQFHG UHDG\ IRU DUJXPHQW  7KH 'HSDUWPHQW DSSHDUHG E\ WKH

            $WWRUQH\ IRU WKH 'HSDUWPHQW  7KH &RXUW KDYLQJ UHYLHZHG WKH DGPLQLVWUDWLYH UHFRUG WKH

            $SSHOODQW¶VDQG'HSDUWPHQW¶V3RVLWLRQ6WDWHPHQWVDQGDUJXPHQWVRIWKHSDUWLHVKDVGHWHUPLQHG

            WKDW WKH $GPLQLVWUDWLYH 'HFLVLRQ GDWHG 2FWREHU   LV KHUHE\ UHYHUVHG DQG WKDW WKH

            DGPLQLVWUDWLYHRUGHUDXWKRUL]LQJWKH7H[DV'HSDUWPHQWRI3XEOLF6DIHW\WRVXVSHQG$SSHOODQW¶V

            OLFHQVHSHUPLWRUSULYLOHJHWRGULYHLV9$&$7('

                  7KH$GPLQLVWUDWLYH'HFLVLRQYLRODWHGRQHRUPRUHRIWKHSURYLVLRQVVHWIRUWKLQ7H[DV

            *RYHUQPHQW&RGH
                                 1/26/2015
            6LJQHGRQBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB
            
            
            
                                                 
                                                                                                                       
                                                 -8'*(35(6,',1*
            
            &23,(672
            6(5*,208f2=-5                (0$,/6(5*,2#6(5*,20812=-5&20                   )$;
            /$85$*$5=$&8(//$5               (0$,//$85$*$5=$#'367(;$6*29                  )$;




                                                                                                                                50
TAB B
                        DOCKET NO. 2014-08-78118
TEXAS DEPARTMENT OF PUBLIC SAFETY §              BEFORE THE STATE OFFICE
                                  §
V.                                §                                   OF


ARMANDO CARDENAS                                        §                ADMINISTRATIVE HEARINGS
Defendant

                                      ADMINISTRATIVE DECISION
On October 2, 2014, tlle Defendant appeared personally or tllrougb counsel and announced ready. !be
Department appeared tllrougb 1ts attorney or representalive and announced ready. Havmg heard and considered
the evidence, the Administrative Law Judge fmds that the State Office of Administrative Hearings has
jurisdiction over this cause and further finds the facts below:

                                              FINDINGS OF FACT

    1.   On May 17,2014, at approximately 10:27 p.m., reasonable suspicion to stop Defendant existed, in that a
         Texas peace officer within his jurisdiction observed Defendant operating a motor vehicle in a public
         place in Texas. The officer observed Defendant fail to dim high beams when approaching another
         vehicle and observed that Defendant's rear license plate lamp was inoperable.


         that Defendant was operating a motor vehicle in a public place while intoxicated, because in addition to
         the facts in No. 1, a Texas peace officer observed Defendant had a strong odor of alcohol, slurred
         speech, and bloodshot eyes. Defendant displayed 6 of 6 clues of intoxication on the Horizontal Gaze
         Nystagmus evaluation.

    3. Defendant 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, Defendant refused.

    5. Defendant has had one or more alcohol or drug related enforcement contacts during the ten years
       p~eceding the date of Defendant's arrest as is indicated on Defendant's driving record

                                                   CONCLUSIONS OF LAW

Based on the foregoing, the Judge concludes the Department proved the issues set out in Tex. Transp. Code §
724.042 and that Defendant's license is subject to a suspension for two years pursuant to Tex. Transp. Code§
724.035.
In accordance with the above findings and concJnsions, the IJJdge hereby enters the following order

                                                      ORDER
The Department is authorized to suspend or deny Defendant's driving privileges for the period indicated above.


This decision may he appealed pursuant to Tex Transp Code §524 041 And I Tex. Admin. Code §159.255.

         Signed   thi{i(fa:;.y of October, 2014.




                                                                                                                    \   16
