Opinion issued March 19, 2013




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-12-00157-CV
                           ———————————
                          SARA PETERS, Appellant
                                       V.
          TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee



              On Appeal from County Civil Court at Law No. 1
                           Harris County, Texas
                      Trial Court Case No. 1002860



                                OPINION

      Sara Peters appeals from a suit for judicial review in which the trial court

affirmed the administrative law judge’s (ALJ) order granting the Texas

Department of Public Safety’s (DPS) petition to suspend her driver’s license for
ninety days. 1 Peters’s single issue on appeal contends that the trial court erred

because the ALJ’s finding that the officer had reasonable suspicion to stop her is

not reasonably supported by substantial evidence.         We reverse and render

judgment in Peters’s favor.

                                   Background

      On July 16, 2011, Peters was stopped and subsequently arrested by Harris

County Sheriff’s Department Deputy Christopher Kerr for driving while

intoxicated. Peters gave a breath specimen, the analysis of which showed an

alcohol concentration of .08 or greater.2 At Peters’s request, a hearing was held

before an ALJ on September 28, 2011 to contest the suspension of her driving

privileges. TEX. TRANSP. CODE ANN. § 524.031 (West 2007).

      At the hearing, DPS introduced into evidence the DIC-23 Peace Officer’s

Sworn Report, the DIC-24 Statutory Warning, the DIC-25 Notice of

Suspension/Temporary Driving Permit, the breath-test slip, and the DIC-56 Breath

Test Technical Supervisor Affidavit. The DIC-23, signed and sworn to by Deputy

Kerr, stated that on or about July 16, 2011 at 1:39 a.m., he observed a white Lexus

in the 9500 block of the North Sam Houston Tollway. Under the section


1
      TEX. TRANSP. CODE ANN. §§ 524.022 (West Supp. 2012), .041 (West 2007).
2
      Peters does not challenge the breath-specimen analysis and concedes that the
      ALJ’s finding that she had a blood alcohol concentration of .08 or greater was
      reasonably supported by substantial evidence.

                                         2
designated “Reasonable suspicion to make contact,” Deputy Kerr stated, “While on

patrol I observed the above vehicle traveling 40mph in a 65mph posted zone.”

Deputy Kerr did not testify at the hearing.

      Two days after the hearing, the ALJ issued an administrative decision, which

included findings of fact, conclusions of law, and an order authorizing DPS to

suspend Peters’s driving privileges. The ALJ made only one finding of fact with

respect to the reasonableness of the stop: “On 7-16-11, reasonable suspicion to

stop [Peters] existed, in that Officer Kerr observed [Peters] operating a motor

vehicle traveling 40 mph in a 65 mph speed zone on the tollway in the 9500 block

of North Sam Houston Tollway, Houston, Harris County, Texas.” Based upon

these facts, as well as the analysis of Peters’s breath specimen, and Deputy Kerr’s

observations of Peters after he pulled her over, the ALJ concluded that DPS met its

burden of proof under Transportation Code section 524.035 and was therefore

authorized to suspend Peters’s driving privileges for ninety days. 3

      Peters filed a suit for judicial review in the county civil court at law. After

reviewing the hearing transcript and evidence presented to the ALJ, as well as


3
      In particular, the ALJ found that Deputy Kerr had probable cause to arrest Peters
      for driving while intoxicated based on the fact that (1) he observed her driving on
      the tollway at twenty-five miles an hour under the speed limit, (2) after he pulled
      her vehicle over, Deputy Kerr observed that Peters’s breath smelled strongly of
      alcohol, she had slurred speech, bloodshot eyes, and was disoriented, and (3)
      Peters’s performance on two field-sobriety tests, as described in Deputy Kerr’s
      report.
                                           3
arguments of counsel, the trial court signed an order affirming the ALJ’s decision.

Peters timely filed her appeal of this order. See Tex. Dep’t Pub. Safety v. Barlow,

48 S.W.3d 174, 175–76 (Tex. 2001).

                                   Discussion

      a. Standard of Review

        “[C]ourts review administrative license suspension decisions under the

substantial evidence standard.” Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d

128, 131 (Tex. 1999); see TEX. TRANSP. CODE ANN. § 724.047 (West 2011)

(“Chapter 524 governs an appeal from an action of the department, following an

administrative hearing under this chapter, in suspending or denying the issuance of

a license.”); TEX. TRANSP. CODE ANN. § 524.043 (West 2007) (establishing rules

for appeal but not defining scope of review). We presume that the ALJ’s decision

is supported by substantial evidence, and Peters, as the complaining party, has the

burden to prove otherwise.        Tex. Health Facilities Comm’n v. Charter

Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). In contested cases, if more

than a scintilla of evidence supports the administrative findings, we affirm those

findings; “[i]n fact, an administrative decision may be sustained even if the

evidence preponderates against it.” Mireles, 9 S.W.3d at 131.           Under the

Administrative Procedure Act, Reviewing courts may not substitute their judgment

for

                                        4
      the judgment of the state agency on the weight of the evidence on
      questions committed to agency discretion but . . . (2) shall reverse or
      remand the case for further proceedings if substantial rights of the
      appellant have been prejudiced because the administrative findings,
      inferences, conclusions, or decisions are: . . . (E) not reasonably
      supported by substantial evidence considering the reliable and
      probative evidence in the record as a whole. . . .

TEX. GOV’T CODE ANN. § 2001.174 (West 2008). We review the county civil court

at law’s substantial evidence review of the administrative ruling de novo. See Tex.

Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (noting that ALJ’s

findings of fact are entitled to deference but that “whether there is substantial

evidence to support an administrative decision is a question of law” and as such,

neither county court nor ALJ’s determination of issue is entitled to deference on

appeal).

   b. License Suspension Statute

      The Transportation Code requires DPS to suspend the driving privileges of

anyone the department determines had an alcohol concentration level of .08 grams

or greater while operating a motor vehicle in a public place. TEX. TRANSP. CODE

ANN. § 524.012(b)(1) (West Supp. 2012); see also TEX. PENAL CODE ANN.

§ 49.01(2)(B) (West 2011) (defining “intoxicated” as having an alcohol

concentration of 0.08 or more). In order to prevail at the license-suspension

hearing in the present case, DPS was required to prove by a preponderance of the

evidence that (1) Peters had an alcohol concentration of a level of .08 or greater,


                                        5
while operating a motor vehicle in a public place and (2) that Deputy Kerr had

“reasonable suspicion to stop or probable cause to arrest” Peters.             See TEX.

TRANSP. CODE ANN. § 524.035(a)(1)(A), (2) (West Supp. 2012). Because Peters is

only challenging the sufficiency of the evidence with respect to the second issue

(i.e., whether the ALJ’s finding that Deputy Kerr had reasonable suspicion to stop

her is reasonably supported by substantial evidence), we will limit our discussion

to the evidence supporting the reasonableness of the stop.

    c. Evidence Supporting ALJ’s Finding of Reasonable Suspicion to Stop

       DPS argues that there is substantial evidence in the record to demonstrate

that Deputy Kerr had reasonable suspicion to stop Peters because he suspected that

she was driving while intoxicated. DPS further contends that, even if there was not

reasonable suspicion to stop Peters based on Deputy Kerr’s suspicion that she was

intoxicated, Deputy Kerr’s detention of Peters was nevertheless appropriate and

lawful because he detained her as part of his “community caretaking”

responsibility. 4   Neither basis proffered by DPS is supported by substantial

evidence in the record.


4
       The record demonstrates that Peters was observed driving twenty-five miles per
       hour below the posted speed limit around 1:40 in the morning on a public road.
       Such conduct does not constitute a traffic violation, however, absent evidence that
       Peters was impeding the normal and reasonable movement of traffic. TEX.
       TRANSP. CODE ANN. § 545.363(a) (West 2011). As such, Deputy Kerr did not
       have reasonable suspicion to detain Peters on this basis. See Garcia v. State, 827
       S.W.2d 937, 944 (Tex. Crim. App. 1992) (stating police officer may stop and
                                            6
   d. Reasonable Suspicion to Stop

      A police officer may temporarily detain an individual for investigative

purposes if he reasonably suspects that the individual is involved in criminal

activity. Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (citing

Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968)). “Reasonable suspicion

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

inferences from those facts, would lead him to reasonably conclude that a

particular person actually is, has been, or soon will be engaged in criminal

activity.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). It requires

more than an “inchoate and unparticularized suspicion or ‘hunch.’” Terry, 392

U.S. at 27, 88 S. Ct. at 1883. “A reasonable-suspicion determination is made by

considering the totality of the circumstances.” Ford, 158 S.W.3d at 492–93.

      DPS argues that, based on the totality of the circumstances, there is

substantial evidence in the record to demonstrate that Deputy Kerr had reasonable

suspicion to stop Peters because he suspected that she was driving while

intoxicated. Citing to two Court of Criminal Appeals opinions, DPS argues that

Deputy Kerr could have temporarily detained Peters for reasonable suspicion of

driving while intoxicated based upon the fact that he observed her driving slowly

in the early morning hour on a public roadway. See Foster, 326 S.W.3d at 613;

      detain motorist if officer has reasonable suspicion traffic violation was committed
      or if offense is committed in officer’s presence).
                                           7
Curtis v. State, 238 S.W.3d 376, 379–80 (Tex. Crim. App. 2007). Foster and

Curtis, however, are both factually distinguishable.

       In Foster, a peace officer was stopped at a red light a few blocks from

Austin’s Sixth Street bar district at 1:30 in the morning when he heard a revving

noise and noticed the vehicle immediately behind him lurched forward several

times. Foster, 326 S.W.3d at 610. The officer testified that he decided to detain

Foster, who was driving that vehicle, because he thought Foster’s driving was

“unsafe and—due to where [they] were downtown and the time of night, [the

officer] was concerned that maybe [Foster] was impaired.” Id. at 610–11. He

further testified that, based on his prior training and experience in traffic patrol, it

was common for many people to be impaired in Austin’s Sixth Street bar district

late at night. Id. at 611.

       In Curtis, two state troopers detained Curtis after they observed his vehicle

weaving in and out of his lane of traffic over a short distance at 1:00 a.m. Curtis,

238 S.W.3d at 377. Both officers testified that they had received specialized

training in detecting DWIs, and that based on that training, they knew that a

driver’s weaving in and out of a lane was a possible indication that the driver was

intoxicated. Id. at 380. The court concluded that the officers had reasonable

suspicion to stop Curtis, based upon the totality of the circumstances (e.g., the




                                           8
officers’ work experience and specialized training in detecting intoxicated drivers,

Curtis’s erratic driving during the early morning hours). Id. at 381.

      Unlike these cases, in which the officers testified about how their DWI

training and experience helped them form opinions regarding a driver’s possible

intoxication, the record in the present case is silent regarding Deputy Kerr’s

training and experience. It is also silent with respect to the characteristics of the

area in which Peters was observed driving—as opposed to the defendant in Foster,

who was observed driving in an unsafe manner in the early morning hours near

Sixth Street in Austin. Here, the only relevant evidence in the record is that Peters

was observed driving slowly on the Sam Houston Tollway at 1:40 in the morning.

Without more, we cannot say that Deputy Kerr articulated facts, that when

combined with rational inferences from those facts, lead him to reasonably

conclude that Peters was intoxicated before he detained her.

      Accordingly, we conclude that there is not substantial evidence in the record

to support the ALJ’s finding of reasonable suspicion to stop on this basis.

   e. Community Caretaking

      DPS further contends that, even if there was not reasonable suspicion to stop

Peters based on Deputy Kerr’s suspicion that she was intoxicated, Deputy Kerr’s

detention of Peters was nevertheless appropriate and lawful because he detained

her as part of his “community caretaking” responsibility.

                                          9
      Police officers may stop and assist someone as part of their “community

caretaking” responsibility if a reasonable person would believe the driver to be in

need of help. Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002) (citing

Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999)). The community

caretaking responsibility—which is “totally divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a criminal

statute”—is properly invoked in cases in which the reviewing court determines that

the officer was primarily motivated by the community caretaking purpose—as

opposed to law enforcement—and that the officer had a reasonable belief that the

detained person needed assistance. Corbin, 85 S.W.3d at 277 (quoting Cady v.

Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, (1973)). Simply put, an officer

cannot make a valid community caretaking stop if his primary motivation is

suspicion of criminal wrongdoing. See Corbin, 85 S.W.3d at 277.

      In deciding if the officer was primarily motivated by the community

caretaking purpose, courts gives deference to the determination of the fact-finder.

Id. DPS argues that one could logically infer from the facts set forth in Deputy

Kerr’s report that his stop of Peters was primarily motivated by his community

caretaking responsibility, and that it is a logical inference that the ALJ found that

this was Deputy Kerr’s primarily motivation when he detained Peters, and, as such,

we should defer to ALJ’s inferred finding on this issue.

                                         10
      Citing to Ortega v. State, DPS argues that there are objective facts

demonstrating that Deputy Kerr was attempting to use his community caretaking

responsibilities when he detained Peters, namely, the fact that Peters was alone in

her vehicle, driving below the speed limit on the North Sam Houston Tollway at

1:40 a.m., and she thereby posed a danger to herself and other motorists. 974

S.W.2d 361 (Tex. App.—San Antonio 1998, pet. ref’d). Unlike Ortega and the

other cases relied upon by DPS, there is nothing in the record to indicate that

Deputy Peters stopped Peters because he was concerned for her safety—as

opposed to believing that she was intoxicated or had violated another law. See

Ortega, 974 S.W.2d at 362 (officer’s report indicated officer stopped driver in

order “to ascertain if [driver] was experiencing vehicle problems”); Munoz v. State,

No. 02-09-00391-CR, 2010 WL 3304242, at *3–4 (Tex. App.—Fort Worth Aug.

19, 2010, no pet.) (mem. op., not designated for publication) (officer testified that

he thought driver was lost and he was concerned for her welfare after observing

her vehicle, which had been traveling twenty-five miles-per-hour in forty-five

mile-per-hour zone, pull off into small, dimly lit parking lot); Tex. Dep’t of Pub.

Safety v. Svoboda, No. 04-05-00796-CV, 2006 WL 1684793, at *1, *3 (Tex.

App.—San Antonio June 21, 2006, pet. denied) (mem. op.) (officers testified that

they observed vehicle traveling at twenty miles-per-hour below posted speed limit

on public roadway; after they witnessed driver pull off onto improved shoulder,

                                         11
officers approached vehicle to find out if driver needed assistance; officer’s report

identified encounter as “welfare check”). In each of these cases, the arresting

officer indicated that he approached the driver out of concern for the person’s

safety, either in his report or during his testimony.

      Although it is certainly true that a fact-finder can draw reasonable inferences

from the record, the type of inferences that DPS argues for are not “inferences” at

all—just mere speculation and conjecture. First, there is no evidence that Peters

was “alone” in her vehicle. Second, DPS’s assertion that Peters “posed a danger to

herself and other motorists” is not a reasonable inference to draw from the record

given the fact that there is no evidence of any other vehicles sharing the roadway

with Peters, or that driving slowly is inherently unsafe, regardless of the

circumstances. Although one might surmise that Deputy Kerr could have been

concerned for Peters’s safety, that is not a proper inference to draw from the facts,

particularly when Deputy Kerr stated in his report that he had reasonable suspicion

to contact Peters because he observed her vehicle “traveling 40mph in a 65mph

posted zone.”

      Accordingly, we conclude that there is not substantial evidence in the record

to support the ALJ’s finding of reasonable suspicion to stop. See TEX. GOV’T

CODE ANN. § 2001.174(2)(E).




                                          12
                                      Conclusion

      Having determined that the ALJ’s finding that Deputy Kerr had reasonable

suspicion to stop Peters is not reasonably supported by substantial evidence, we

reverse the judgment of the county civil court at law and render judgment (1)

reversing the ALJ’s order and (2) rendering that DPS’s petition to suspend Peters’s

driving privileges be denied. See TEX. R. APP. P. 43.3 (requiring appellate courts,

as general rule, to render judgment trial court should have rendered); Tex. Dep’t of

Pub. Safety v. Story, 115 S.W.3d 588, 593 (Tex. App.—Waco 2003, no pet.)

(stating Government Code section 2001.174 authorizes reviewing court to either

reverse agency’s decision and render judgment in favor of party seeking review or

reverse agency’s decision and remand for further proceedings); 1 TEX. ADMIN.

CODE § 159.251(b) (2012) (stating that if ALJ finds that DPS did not prove all

requisite facts by preponderance of the evidence, ALJ shall deny DPS’s petition to

suspend driving privileges).




                                                 Jim Sharp
                                                 Justice

Panel consists of Justices Jennings, Higley, and Sharp.




                                            13
