
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-06-00054-CV


Texas Department of Public Safety, Appellant

v.

Kathy Lynn Bishop, Appellee




FROM THE DISTRICT COURT OF LEE COUNTY, 21ST JUDICIAL DISTRICT
NO. 12966, HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		The Texas Department of Public Safety appeals a district court's judgment reversing
an administrative law judge's order suspending Kathy Bishop's driver's license.  The issue on appeal
is whether substantial evidence supported the administrative law judge's determination that the
police had probable cause to arrest Bishop for driving while intoxicated.  We find that there was
substantial evidence supporting the administrative law judge's determination of probable cause. 
Accordingly, we reverse the district court's judgment and render judgment reinstating the
administrative law judge's order of suspension.
		On March 2, 2005, at approximately 2:34 a.m., Officer Lacey Watts of the Giddings
Police Department observed Bishop's vehicle traveling 66 mph in a 55 mph speed zone.  Officer
Watts initiated a traffic stop and approached the passenger side of the vehicle.  With Bishop's
permission, Officer Watts opened the passenger door of the vehicle.  She testified at the
administrative hearing, "[w]hen I initially opened the door, I could smell alcohol coming from inside
the vehicle."  Officer Watts identified the driver of the vehicle as Kathy Bishop.  She testified that
Bishop exhibited slurred speech while telling Officer Watts that she was on her
way home from a bar.
		Officer Watts asked Bishop to get out of the vehicle and to stand in front of the patrol
car.  She testified that "when [Bishop] exited the vehicle she kind of stumbled a little bit, kind of
staggered."  Office Watts also observed that Bishop's eyes were "red and glassy" and that Bishop
had "a strong odor of an alcoholic beverage coming from her breath."  Bishop admitted to Officer
Watts that she had consumed "four mixed drinks."  Bishop had difficultly following simple
instructions for performing the horizontal gaze nystagmus (HGN) test.  Additionally, Officer Watts
testified that Bishop exhibited all six clues of intoxication during the administration of the HGN test. 
Because the ground where the traffic stop occurred was uneven, Officer Watts decided to administer
the remaining field sobriety tests at the police station.  She then arrested Bishop for driving while
intoxicated, placed Bishop in the back of the patrol car, and drove to the police station.  At the
station, Bishop failed a second administration of the HGN test as well as the walk-and-turn test and
the one-leg stand.  Bishop refused to provide a specimen of her breath for testing after being warned
that refusal could result in the suspension of her driver's license. 
		At Bishop's request, an administrative hearing was held on June 16, 2005, regarding
the license suspension.  At the hearing, the Department introduced Officer Watts's sworn report, the
statutory warning, the DWI interview, and the field sobriety test sheet as evidence.  Officer Watts
also testified at the hearing.  Bishop did not offer any evidence.  Counsel for Bishop cross-examined
Officer Watts regarding the details of her administration of the HGN test at the site of the traffic
stop.  During closing arguments, counsel for Bishop stated, "there's no evidence that [Officer Watts]
was certified to do the HGN.  And secondly, the way [Officer Watts] did the HGN, . . . she did it
wrong.  And furthermore, Judge, as the Court knows, to establish probable cause you have to have
more than just the HGN."  The administrative law judge found "that probable cause existed to
believe that [Bishop] was operating a motor vehicle in a public place while intoxicated" and
concluded that Bishop's license was subject to suspension for 180 days.  
		Bishop sought judicial review of the administrative decision.  She argued in her trial
brief that:
	[t]he record in the Administrative hearing was devoid of any evidence that would
support an arrest based on probable cause for driving while intoxicated.  The officer
only conducted one field sobriety test prior to arresting [Bishop], that being the HGN. 
However, there is no evidence that the officer is qualified to administer an HGN test. 
Therefore, there is no evidence of probable cause to arrest [Bishop].  The mere
existence of an odor of an alcoholic beverage is not sufficient.  There was no bad
driving, other than speeding.  Any other clues of intoxication were not developed
until at the police station.


On October 26, 2005, the trial court reversed the administrative law judge's order of suspension
without stating a basis.  On appeal, the Department contends that the trial court erred by reversing
the administrative law judge's order because (1) Bishop did not object to the admission of the HGN
evidence or Officer Watts's qualifications to administer the HGN at the administrative hearing, and
(2) even without the HGN evidence, there was substantial evidence to support the administrative law
judge's determination that there was probable cause to arrest Bishop for driving while intoxicated.
		Courts review administrative license suspension decisions under the substantial
evidence standard.  Mireles v. Texas Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999); see Tex.
Transp. Code Ann. § 524.041 (West 1999); Tex. Gov't Code Ann. § 2001.174 (West 2000).  A court
applying the substantial evidence standard of review may not substitute its judgment for that of the
administrative law judge.  Mireles, 9 S.W.3d at 131. The issue for the reviewing court is not whether
the administrative law judge's decision was correct, but only whether the record demonstrates some
reasonable basis for the administrative law judge's action.  Id.  Courts must affirm administrative
findings in contested cases if there is more than a scintilla of evidence to support them.  Id. (citing
Railroad Comm'n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792-93 (Tex. 1995)).  This
Court's review of the district court's determination is undertaken de novo.  Texas Dep't of Pub.
Safety v. Pruit, 75 S.W.3d 634, 640 (Tex. App.--San Antonio 2002, no pet.).  
		In Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994), the court of
criminal appeals held that "[f]or testimony concerning a defendant's performance on the HGN test
to be admissible, it must be shown that the witness testifying is qualified as an expert on the HGN
test, specifically concerning its administration and technique."  However, error in the admission of
testimony regarding HGN evidence requires reversal only when the error "had a substantial and
injurious effect or influence" on the fact-finder or the verdict.  Ellis v. State, 86 S.W.3d 759, 762
(Tex. App.--Waco 2002, pet. ref'd) (quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
1997)).  In Ellis, the defendant appealed his conviction for driving while intoxicated, arguing that
the arresting officer should not have been allowed to testify about administering the HGN test
because he was not qualified as an expert on the HGN testing and because the officer did not
properly administer the HGN test.  Id. at 761.  The Waco court of appeals found that the trial court
abused its discretion in admitting the arresting officer's testimony because he was not qualified as
an expert pursuant to Emerson.  Id.  However, the court concluded that the admission of the arresting
officer's testimony was harmless error because the evidence showed that, at the time of the arrest,
the defendant had a strong odor of an alcoholic beverage on his breath, his speech was slow and
slurred, he staggered and lost his balance when he exited his car, there was cold beer inside the car
when the officer pulled him over, he admitted he had been drinking, he did not follow instructions
on the one-leg stand and the head-tilt tests, and he refused to give a breath sample.  Id. at 762. 
		In this case, Bishop argued at the trial court that the evidence of the HGN test was
insufficient to establish probable cause because there was no evidence establishing that Officer Watts
was qualified to administer the HGN test.  This argument assumes that evidence of the HGN test was
the only evidence considered by the administrative law judge in determining probable cause.
"Probable cause exists when the facts and  circumstances within an officer's personal knowledge and
of which he has reasonably trustworthy information are sufficient to warrant a person of reasonable
caution in the belief that, more likely than not, a particular suspect has committed an offense."  State
v. Garrett, 22 S.W.3d 650, 653-54 (Tex. App.--Austin 2000, no pet.).  Probable cause must be
examined in light of the totality of the circumstances established by the evidence.  Id. 
		The record of the administrative hearing reflects that the administrative law judge
found:

	that probable cause to arrest [Bishop] existed, in that probable cause existed to
believe [Bishop] was operating a motor vehicle in a public place while intoxicated,
because, . . . prior to arrest, the officer observed the following indications of
intoxication when the officer observed [Bishop] on the scene:  whose vehicle smelled
strongly of an alcoholic beverage; who staggered as she exited her vehicle; whose
speech was slurred; who stated that she had just left a bar; who admitted to the
consumption of four "mixed drinks"; whose eyes were red and glassy; whose breath
smelled strongly of an alcoholic beverage; who swayed as she stood; who had
difficulty following the officer's simple directions to hold her head still for the
horizontal gaze nystagmus field sobriety eye-test, moving her head when she was
supposed to be moving her eyes only and holding her head still. 

On this record, there was evidence establishing probable cause to arrest Bishop for driving while
intoxicated at the time of the traffic stop other than the results of the HGN test conducted at the
scene.  The administrative law judge did not rely solely on the HGN evidence to establish probable
cause for her arrest.  Instead, the administrative law judge considered the totality of the
circumstances at the time of Bishop's arrest, including the fact that Bishop's vehicle smelled strongly
of alcohol, that she exhibited slurred speech and swayed as she stood, that she admitted to
consuming four "mixed drinks," that she told Officer Watts that she had just left a bar, that her eyes
were red and glassy, and that her breath smelled strongly of alcohol.  Furthermore, it seems that the
administrative law judge considered only Bishop's inability to follow directions during the HGN test
and not the results of the HGN test in her determination of probable cause.  Under these
circumstances, we conclude that even if the administrative law judge abused her discretion by
admitting unqualified testimony from Officer Watts concerning the HGN evidence, the admission
of this testimony did not have a substantial or injurious effect on the administrative decision.  Any
error in the admission of Officer Watts's testimony regarding the HGN evidence was harmless error. 
		Because the record contains substantial evidence to support the administrative law
judge's determination of probable cause to arrest Bishop for driving while intoxicated, we reverse
the judgment of the district court and render judgment reinstating the administrative law judge's
order of suspension. 

					________________________________________________
					G. Alan Waldrop, Justice
Before Justices Pemberton, Waldrop and B. A. Smith*
Reversed and Rendered
Filed: January 22, 2007
* Before Bea Ann Smith, Justice (retired), Third Court of Appeals, sitting by assignment. See Tex.
Gov't Code Ann. § 74.003(b) (West 2005). 
