                                                          FILED IN        1
                                                    th
                                                   4 COURT OF APPEALS
                                                     SAN ANTONIO, TX
                                                    3:27 pm, Oct 08, 2015
                                                     KEITH E. HOTTLE
 1                         REPORTER'S RECORD       CLERK OF THE COURT
                         VOLUME 1 OF 1 VOLUME
 2                TRIAL COURT CAUSE NO. 2015-CV-03073

 3    FRANCISCO J.                  *     IN THE COUNTY COURT
      GONZALEZ-GONZALEZ,            *
 4                    APPELLANT,    *
      VS.                           *     AT LAW NO. 3
 5                                  *
      TEXAS DEPARTMENT OF PUBLIC    *
 6    SAFETY,                       *
                      APPELLEE.     *     BEXAR COUNTY, TEXAS
 7   **************************************************************

 8                     TRANSCRIPT OF PROCEEDINGS
                             JULY 31, 2015
 9
     **************************************************************
10          On the 31st day of July, 2015, the following came on to

11   be heard in the above-entitled and numbered cause before the

12   Honorable Jason Wolff, Judge presiding, held in San Antonio,

13   Bexar County, Texas:

14          Proceedings reported by Stenographic Method.

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23                          * * * ORIGINAL * * *

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                      EDNA L. CASANOVA, CSR, RPR
                                                   2




 1                       A P P E A R A N C E S

 2   Mr. Adam Crawshaw
     LAW OFFICE OF ADAM CRAWSHAW, PLLC
 3   SBOT NO. 24073017
     630 Broadway Street
 4   San Antonio, Texas 78215
     Phone: (210)271-1523
 5   Attorney for Appellant

 6   Ms. Nancy Jo Bage Sorenson
     TEXAS DEPARTMENT OF PUBLIC SAFETY
 7   SBOT NO. 24029846
     8806 Broadway Street
 8   San Antonio, Texas 78217
     Phone: (210)804-5700
 9   Attorney for Appellee

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                      EDNA L. CASANOVA, CSR, RPR
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           1                 (Open court.)

           2                 THE COURT:   2015-CV-03073, Francisco Gonzalez

           3   versus DPS.

           4                 MR. CRAWSHAW:    Ready, Judge.

10:31AM    5                 THE COURT:   Good morning.

           6                 MS. SORENSON:    Good morning.

           7                 THE COURT:   Good morning.     Mr. Crawshaw?

           8                 MR. CRAWSHAW:    Yes, sir.

           9                 THE COURT:   Your appeal, right?

10:32AM   10                 MR. CRAWSHAW:    Yes, it is.

          11                 THE COURT:   Okay.

          12                 MR. CRAWSHAW:    Are you ready for me?

          13                 THE COURT:   Sure.

          14                 MR. CRAWSHAW:    Judge, the sole issue on appeal

10:32AM   15   is whether or not there's reasonable fact -- or facts in the

          16   record to support Judge Lambright -- the administrative law

          17   judge's decision -- finding.   The only issue that I'm

          18   appealing is whether or not there was reasonable suspicion for

          19   the stop in this case.   Reasonable suspicion or probable cause

10:32AM   20   for the stop is what DPS alleges in their original petition.

          21                 As far as the evidence for review goes, the most

          22   important thing in this case is that a court shall reverse an

          23   administrative decision if appellant's substantial rights have

          24   been prejudiced because his findings are in violation of

10:32AM   25   constitutional or statutory provisions.      It's cited in my



                                EDNA L. CASANOVA, CSR, RPR
                                                                                  4




           1   brief.

           2                 The reason for the stop in this case is because

           3   my client made a U-turn from a left-turn-only lane.     That's

           4   the only thing that's in the police officer's report.    There's

10:32AM    5   nothing in the transcript that elaborates on that reason --

           6   that reason for the stop.   And so because there's no facts

           7   articulated in the record, there can -- the ALJ -- there's no

           8   legal basis to find that there's reasonable suspicion or

           9   probable cause for the stop.

10:33AM   10                 THE COURT:    I'm sorry?   There was not testimony

          11   at the hearing?

          12                 MR. CRAWSHAW:    There was.

          13                 THE COURT:    Okay.

          14                 MR. CRAWSHAW:    But not on that point.

10:33AM   15                 THE COURT:    All right.

          16                 MR. CRAWSHAW:    The only thing that's in the

          17   police report, which is an exhibit that's attached to the

          18   record, is that my client made a U-turn from a left-hand-turn

          19   lane, which is not in itself a traffic violation.    And so

10:33AM   20   because -- because that's not --

          21                 THE COURT:    It can -- it may or it may not be,

          22   right?

          23                 MR. CRAWSHAW:    That's correct.

          24                 THE COURT:    Okay.

10:33AM   25                 MR. CRAWSHAW:    But because there's no objective



                                 EDNA L. CASANOVA, CSR, RPR
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           1   facts in the record to support that finding, I think that

           2   the -- the decision must be reversed.

           3                   THE COURT:   All right.

           4                   MS. SORENSON:   And I think you have a copy of

10:33AM    5   this, do you?

           6                   THE COURT:   I do.

           7                   MS. SORENSON:   Okay.   And the -- really, the

           8   standard of review is the most important thing here on appeal,

           9   and I know you're very familiar with this.      And we believe not

10:34AM   10   only does the record demonstrate some reasonable basis for the

          11   ALJ's decision and more than a scintilla of evidence, but I

          12   don't think that there's even an evidentiary ambiguity in this

          13   case.   He was -- the officer was subpoenaed by defense and did

          14   appear at the hearing, but they elected not to ask him any

10:34AM   15   questions about the stop.

          16                   THE COURT:   Well --

          17                   MS. SORENSON:   Where the -- where the --

          18                   THE COURT:   It might be good lawyering.

          19                   MS. SORENSON:   Oh, oh, no.    Yeah.   No.   I'm

10:34AM   20   not -- I'm just saying they didn't.       And the evidence for --

          21   and where the -- the evidence for the judge's decision is in

          22   the officer's sworn report, which is just as valid as if he

          23   testified at the hearing.    It's in the paperwork.     And, Judge,

          24   it's on -- it's in the -- you have a copy of the --

10:35AM   25                   THE COURT:   You guys --



                                  EDNA L. CASANOVA, CSR, RPR
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           1                  MS. SORENSON:   -- record?

           2                  THE COURT:   -- don't dispute that that's the

           3   sole basis, is that --

           4                  MR. CRAWSHAW:   No.

10:35AM    5                  THE COURT:   -- is a U-turn?    No?

           6                  MR. CRAWSHAW:   No.

           7                  MS. SORENSON:   No, no.

           8                  THE COURT:   You're not disputing that that's the

           9   basis that the ALR judge made -- found reasonable suspicion

10:35AM   10   for the stop was a U-turn in a left-hand --

          11                  MS. SORENSON:   That's correct, Judge.    And so

          12   the evidence for that -- what the judge based his -- and you

          13   can see from his -- from his -- his decision exactly what he

          14   says.   And in the report -- the officer's report, it says that

10:35AM   15   he was monitoring traffic on Walzem.      He observed the vehicle

          16   traveling westbound in the left lane and then made a U-turn

          17   through the, quote, left-only-turn lane on the eastbound side.

          18   And when asked about why he did this, the defendant stated he

          19   didn't know about the turn lane.     So this was a left-only-turn

10:36AM   20   lane.   Left only means left only, does not mean any other

          21   kinds of turns, including a U-turn.      And so -- and the judge

          22   states in his decision that reasonable suspicion to stop or

          23   detain defendant existed on that date.      A Texas peace officer

          24   observed defendant make a U-turn from a lane designated for

10:36AM   25   left turns only while operating a motor vehicle.



                                 EDNA L. CASANOVA, CSR, RPR
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           1                   So there is actually specific, articulated facts

           2   as to why he stopped him, because he made a U-turn through a

           3   left-only-turn lane.    So I think that is true.

           4                   As far as the -- there's more than a scintilla

10:36AM    5   of evidence because it's there in the record, in the peace

           6   officer's sworn report, which is DPS 1 and it's in the first

           7   tab.

           8                   Then, secondly, even if you -- oh, I'm sorry.

           9   Whoops.    And to discuss the -- the -- the city ordinance --

10:37AM   10   and I believe you have it in Mr. Crawshaw's very impressive

          11   brief.    And I mean that in sincerity.   It was very -- you

          12   know, it was very well done.

          13                   On the U-turn, the limitations, it says the

          14   driver of any vehicle shall not turn such vehicle so as to

10:37AM   15   proceed in the opposite direction upon any street in a

          16   business district, at any section controlled by a traffic

          17   control signal unless signs are posted permitting a U-turn.

          18                   Okay.   So this was a left only -- designated

          19   left-only-turn lane.    It didn't designate U-turn because it

10:37AM   20   was designated left turn only.

          21                   THE COURT:   Isn't the -- isn't the distinction

          22   if it is, in fact, in a business district?

          23                   MS. SORENSON:   Or any intersection, it says --

          24   upon any street or any intersection controlled by a traffic

10:38AM   25   control device, it says.



                                  EDNA L. CASANOVA, CSR, RPR
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           1                   THE COURT:   Within a business district?

           2                   MS. SORENSON:   No, outside of that.   Or at any

           3   intersection -- or nor upon any other street unless such

           4   moving can be made in safety without interfering with other

10:38AM    5   traffic.   And this was -- business, I didn't even think that

           6   was at issue.

           7                   THE COURT:   All right.   So -- hang on a second.

           8   So --

           9                   MS. SORENSON:   But -- I have another --

10:38AM   10                   THE COURT:   Go ahead.

          11                   MS. SORENSON:   I'm sorry.

          12                   THE COURT:   That's okay.

          13                   MS. SORENSON:   No.   You go ahead, Judge, and

          14   then I'll go with my third thing.

10:38AM   15                   THE COURT:   So the issue is whether or not it

          16   was legal or illegal to make the turn where the turn was made.

          17   There could be instances where it is illegal.     There could be

          18   instances where it's not.    I don't understand why,

          19   Mr. Crawshaw, you're saying that can't support reasonable

10:38AM   20   suspicion in any capacity.

          21                   MR. CRAWSHAW:   Because the law -- constitutional

          22   law requires -- this is an old case, but Ford versus State

          23   requires there be objective reasonable basis in the record.

          24                   THE COURT:   That is -- how is that not an

10:39AM   25   objective reasonable basis --



                                  EDNA L. CASANOVA, CSR, RPR
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           1                 MR. CRAWSHAW:    Because it's not --

           2                 THE COURT:    -- in the record?

           3                 MR. CRAWSHAW:    Because it's not an

           4   articulated -- it's not an articulated reason for the stop.

10:39AM    5   Yes, he --

           6                 THE COURT:    It's articulated in the police

           7   report which is acceptable evidence of the ALR hearing.

           8                 MR. CRAWSHAW:    Yes, it is.   That's exactly

           9   right.

10:39AM   10                 THE COURT:    Okay.

          11                 MR. CRAWSHAW:    But the difference is, Judge, is

          12   that that alone is a conclusory statement which doesn't

          13   articulate a traffic violation.     And we have to have

          14   objective, specific, reasonable, articulated facts by the

10:39AM   15   officer.

          16                 THE COURT:    Could you read that statement for me

          17   again in the police officer's report?

          18                 MS. SORENSON:    Yes.   I don't want to start too

          19   far above, but he was monitoring traffic at the 5000 block of

10:39AM   20   Walzem, a public roadway.   I observed a vehicle traveling

          21   westbound in the left lane and then made a U-turn through

          22   the -- and he puts it in quotes, the officer in his report --

          23   left-only, quotes, turn lane on the eastbound side.

          24                 THE COURT:    Keep reading, please.

10:40AM   25                 MS. SORENSON:    Oh, I'm sorry.   I activated the



                                EDNA L. CASANOVA, CSR, RPR
                                                                                    10




           1   patrol's emergency red and blue lights to initiate a traffic

           2   stop.    The vehicle pulled over at the Roosevelt High School

           3   parking area.

           4                   THE COURT:   Okay.   Thank you.

10:40AM    5                   MS. SORENSON:   I made contact with him.

           6                   THE COURT:   Okay.   Thank you.

           7                   MS. SORENSON:   I'm sorry.

           8                   THE COURT:   Mr. Crawshaw, you're saying that

           9   there can be no inference that, I saw this and activated my

10:40AM   10   lights, that can't be an inference that the ALR judge can make

          11   was the basis of the stop?

          12                   MR. CRAWSHAW:   Yeah, but he didn't, Judge.        The

          13   findings of fact make no inference.     The findings of fact

          14   merely recite what's in the police report.        And that's the

10:40AM   15   issue.   The standard of review says are there -- is there a

          16   basis in the record, number one.     And then, number two, before

          17   that, actually, in the section of the Government Code, it

          18   says, is there -- if there's -- if it's in violation of a

          19   constitution or statutory provision.     My client has a

10:40AM   20   constitutional right against unreasonable seizure, not search.

          21   We aren't dealing with a search.     Unreasonable seizure.     And

          22   so because there's not objective, reasonable, articulated

          23   facts in the record -- and that section of the Government Code

          24   is in the right-hand side of my folder --

10:41AM   25                   THE COURT:   A court of review must affirm the



                                  EDNA L. CASANOVA, CSR, RPR
                                                                                 11




           1   administrative findings in a contested case if there's more

           2   than a scintilla of evidence to support them even if the

           3   findings are against the preponderance of the evidence.    The

           4   inquiry is not whether the administrative law judge's decision

10:41AM    5   was correct, but only whether the record demonstrates some

           6   reasonable basis for the AL judge's decision.

           7                 It's a very high burden, I think, for you to be

           8   successful on an appeal based on the standard of review, the

           9   substantial evidence analysis.

10:41AM   10                 MR. CRAWSHAW:     And I agree with that, Judge, but

          11   I would -- I guess I can't emphasize enough that Section

          12   2001.1744 of the Government Code says that this reviewing

          13   court must reverse it if there -- if my client's

          14   constitutional and substantial rights have been violated, and

10:42AM   15   I think that they have.

          16                 THE COURT:   And they've been violated because?

          17                 MR. CRAWSHAW:     Because there was no reasonable

          18   basis for the seizure, for the initial detention.    All he saw

          19   my client do was make a traffic maneuver.    That's the only

10:42AM   20   thing that's in the record, and so there's not a scintilla of

          21   evidence in the record that says, yeah, there's an objective

          22   basis for the stop.

          23                 THE COURT:   He made an indication in the report

          24   that he made a U-turn in a left-turn-only lane and he

10:42AM   25   initiated his traffic lights.



                                EDNA L. CASANOVA, CSR, RPR
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           1                    MR. CRAWSHAW:   That's it though.   That's a

           2   conclusory statement that -- all he's citing is he saw

           3   somebody drive and make a U-turn.     He hasn't -- that's it.

           4                    THE COURT:   And put on his lights; therefore, in

10:42AM    5   his opinion, meaning that the person violated a traffic law.

           6                    MR. CRAWSHAW:   That's correct, in his opinion.

           7   But we have the objective basis standard under the

           8   constitution which the Government Code says that if there's no

           9   objective basis, then his constitutional rights have been

10:43AM   10   violated and this decision -- the ALJ's decision should be

          11   reversed.

          12                    THE COURT:   I'm sorry, Mr. Crawshaw, but I

          13   disagree with you.    I think there was an objective basis that

          14   the ALR judge made his decision on with the police report that

10:43AM   15   was submitted.    And on the standard of review, I'm not going

          16   to substitute my judgement for his.

          17                    MR. CRAWSHAW:   Thank you, Judge.

          18                    THE COURT:   Thank you.

          19                    (Conclusion of proceedings.)

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                                   EDNA L. CASANOVA, CSR, RPR
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 1   STATE OF TEXAS    )

 2   COUNTY OF BEXAR   )

 3          I, Edna L. Casanova, County Court Reporter in and for

 4   the County Court No. 2 of Bexar County, State of Texas, do

 5   hereby certify that the above and foregoing contains a true

 6   and correct transcription of all portions of evidence and

 7   other proceedings requested in writing by counsel for the

 8   parties to be included in this volume of the Reporter's

 9   Record, in the above-styled and numbered cause, all of which

10   occurred in open court or in chambers and were reported to me.

11          I further certify that this Reporter's Record of the

12   proceedings truly and correctly reflects the exhibits, if any,

13   admitted by the respective parties.

14          I further certify that the total cost for the

15   preparation of this Reporter's Record is $ 58.50    and was

16   paid/will be paid by   Attorney Adam Crawshaw          .

17          WITNESS MY OFFICIAL HAND this the   14th    day of

18     August          , 2015.

19

20                               /s/Edna L. Casanova
                                 Edna L. Casanova, Texas CSR 6447
21                               Expiration Date: 12/31/2015
                                 Official Court Reporter
22                               County Court No. 2
                                 Bexar County, Texas
23                               San Antonio, Texas 78205
                                 (210)335-2079
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                       EDNA L. CASANOVA, CSR, RPR
