                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                            _________________
                             NO. 09-15-00147-CV
                            _________________

                      EDGAR RODRIGUEZ, Appellant

                                       V.

            TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee
________________________________________________________________________

               On Appeal from the County Court at Law No. 2
                       Montgomery County, Texas
                         Trial Cause No. 15-28706
________________________________________________________________________

                         MEMORANDUM OPINION

      Edgar Rodriguez appeals the judgment of the county court at law, affirming

the administrative law judge’s (“ALJ”) administrative suspension of Rodriguez’s

driver’s license. By one issue, Rodriguez asserts that the trial court erred in

affirming the ALJ’s decision to suspend his license. We affirm the county court’s

judgment.




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                                     Background

      During the administrative hearing on the suspension of Rodriguez’s license,

the ALJ admitted into evidence the police officer’s sworn report, which

incorporated the officer’s incident report. According to the report, at approximately

3:20 a.m. on November 11, 2014, while on patrol, the officer was dispatched to the

1100 block of North 7th Street in Conroe, Texas, to respond to a reported incident

of a “black Escalade speeding up and down the street and playing . . . music

extremely loud.” Upon arrival at the address to which he was dispatched, the

officer observed a black Cadillac Escalade and “heard the music coming from the

vehicle prior to coming in contact with it.” The officer stated, “[a]s [he] got closer

to the vehicle[,] the music got louder and louder.” Thereafter, the officer activated

his emergency lights and initiated a traffic stop to further investigate the situation.

      The officer stated that Rodriguez was the only occupant of the vehicle.

Before the officer reached the vehicle, Rodriguez had opened his door. According

to the officer, as he approached the vehicle, he “immediately smelled a strong odor

of alcohol emitting from or around Rodriguez’s person.” After conducting field

sobriety tests, the officer placed Rodriguez under arrest for driving while

intoxicated. After the officer read Rodriguez his rights, Rodriguez refused to give a

sample of his breath or blood.

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        Shortly thereafter, the    Texas Department       of   Public Safety (the

“Department”) sought to suspend Rodriguez’s driver’s license, and Rodriguez

requested a hearing regarding the suspension. After the administrative hearing, the

ALJ signed an administrative decision that authorized the Department to suspend

Rodriguez’s license. The ALJ made the following findings of fact, in pertinent

part:

        On 11-11-14, reasonable suspicion to stop [Rodriguez] existed, in that
        [the officer] was dispatched to the 1100 block of N. 7th Street,
        Conroe, Montgomery County, Texas regarding a speeding vehicle that
        was playing extremely loud music. Upon his arrival on the scene, the
        officer observed [Rodriguez] operating the vehicle that was playing
        the extremely loud music.

Rodriguez appealed the ALJ’s decision to suspend his driver’s license. After a

hearing on his appeal, the county court affirmed the ALJ’s decision. The county

court found that the ALJ’s decision “was reasonably supported by substantial

evidence and that the decision did not prejudice the substantial rights of

[Rodriguez].” Rodriguez appealed the county court’s order.

                                Standard of Review

        We review administrative license suspension decisions under the substantial

evidence standard of review. Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128,

131 (Tex. 1999); see Tex. Transp. Code Ann. § 524.043 (West 2013) (describing

judicial review of administrative decision to suspend license); Tex. Gov’t Code
                                        3
Ann. § 2001.174 (West 2016) (describing limitations of review under substantial

evidence rule). The determination of whether there is substantial evidence to

support an administrative decision is a question of law. Tex. Dep’t of Pub. Safety v.

Alford, 209 S.W.3d 101, 103 (Tex. 2006). Under a substantial evidence standard of

review, we may not substitute our judgment for that of the agency. Tex. Gov’t

Code Ann. § 2001.174; Mireles, 9 S.W.3d at 131. As the reviewing court, we must

decide “not whether the agency’s decision was correct, but only whether the record

demonstrates some reasonable basis for the agency’s action. Mireles, 9 S.W.3d at

131. We must affirm administrative findings in contested cases if there is more

than a scintilla of evidence to support the findings. Id. “The findings, inferences,

conclusions, and decisions of an administrative agency are presumed to be

supported by substantial evidence, and the burden is on the contestant to prove

otherwise.” City of El Paso v. Pub. Util. Comm’n of Tex., 883 S.W.2d 179, 185

(Tex. 1994).

                              Reasonable Suspicion

      To suspend Rodriguez’s license, the Department was required to prove that:

(1) the officer had reasonable suspicion or probable cause to stop or arrest

Rodriguez; (2) probable cause existed to believe that Rodriguez was operating a

motor vehicle in a public place while intoxicated; (3) Rodriguez was placed under

                                         4
arrest and was requested to provide a specimen; and (4) Rodriguez refused the

officer’s request for a specimen. See Tex. Transp. Code Ann. § 724.042 (West

2011); Tex. Dep’t of Pub. Safety v. Rezaee, No. 09-15-00353-CV, 2016 WL

6110689, at *2 (Tex. App.—Beaumont, Oct. 20, 2016, no pet.) (mem. op.). The

Department had the burden to prove these elements by a preponderance of the

evidence. Dept. of Pub. Safety v. Hirschman, 169 S.W.3d 331, 335 (Tex. App.—

Waco 2005, pet. denied).

      Rodriguez only challenges the first element, arguing that there is not

substantial evidence to support the ALJ’s finding that reasonable suspicion existed

to initiate the traffic stop of Rodriguez. Rodriguez characterizes the officer’s report

as conclusory and insufficient, explaining that the officer gave no specific,

articulable facts from which a trial court could assess if the officer had reasonable

suspicion to initiate the stop of Rodriguez.

      “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). “To support a reasonable suspicion, the articulable facts must show

‘that some activity out of the ordinary has occurred, some suggestion to connect

                                          5
the detainee to the unusual activity, and some indication that the unusual activity is

related to crime.’” Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App.

2011) (quoting Meeks v. State, 653 S.W.2d 6, 12 (Tex. Crim. App. 1983)

(emphasis omitted)).

      Section 42.01(a)(5) of the Texas Penal Code provides that a person commits

the offense of disorderly conduct if the person intentionally or knowingly “makes

unreasonable noise in a public place . . . or in or near a private residence that he has

no right to occupy[.]” Tex. Penal Code Ann. § 42.01(a)(5) (West Supp. 2016). The

City of Conroe’s Code of Ordinances defines “[s]ound nuisance” to mean “any

sound which unreasonably annoys, disturbs, injures or endangers the peace,

comfort, repose, health or safety of a reasonable person of ordinary tastes and

sensitivities.” Conroe, Tex., Code of Ordinances ch. 26, art. IV, § 26-121 (1966).

The Code provides that “[i]t shall be unlawful for any person to make, cause,

allow, or permit a sound nuisance.” Id. § 26-122(a). The City’s Ordinances

specifically declare certain acts to be sound nuisances in violation of the City’s

Ordinances, including for “any person to make, cause, allow or permit a sound

nuisance through operation of any radio, tape player or other device for producing,

reproducing, amplifying or broadcasting sound, which is mounted or contained in

or on a motor vehicle.” Id. §§ 26-122, 26-125(a).

                                           6
      Based on our review of the officer’s sworn report in a light most favorable to

the ALJ’s determination, we conclude there was substantial evidence to support the

ALJ’s finding that the officer had reasonable suspicion to conduct a traffic stop of

Rodriguez. The officer’s report reflects that he responded to a call that a speeding

black Escalade was playing extremely loud music at approximately 3:20 a.m.,

which was a violation of the City’s Ordinances and the Texas Penal Code. See Tex.

Penal Code Ann. § 42.01(a)(5); Conroe, Tex., Code of Ordinances ch. 26, art. IV,

§§ 26-121, 26-122, 26-125(a). The officer located the vehicle and personally heard

music coming from the vehicle before he came into contact with the vehicle. After

hearing loud music coming from the vehicle, the officer decided to initiate a traffic

stop to further investigate the situation.

      The Department was not required to show that Rodriguez had actually

committed the offense of disorderly conduct or violated the City’s noise ordinance,

but only that the officer reasonably believed that a violation was in progress. See

Tex. Dep’t of Pub. Safety v. Nielsen, 102 S.W.3d 313, 317 (Tex. App.—Beaumont

2003, no pet.) (holding that the “[Department] was not required to show that a

traffic offense actually was committed, but only that the officer reasonably

believed that a violation was in progress”). Here, the officer’s personal observation

of Rodriguez playing loud music from a vehicle around 3:00 a.m. after having

                                             7
received a noise complaint was more than a scintilla of evidence to support that the

officer reasonably believed that a violation of the City’s Ordinance or the Texas

Penal Code was in progress and, therefore, that reasonable suspicion existed to

justify the stop. See Jaroszewicz v. Tex. Dep’t of Pub. Safety, No. 03-15-00340-

CV, 2016 WL 4506163, at *4 (Tex. App.—Austin Aug. 26, 2016, no pet.) (mem.

op) (concluding that ALJ could have found officer’s visual observation of

appellant’s vehicle traveling at a “‘high rate of speed for the 30 mph zone’” was

sufficient to establish reasonable suspicion for the traffic stop); Rodgers v. State,

No. 02-15-00324-CR, 2016 WL 4474349, at *1–2 (Tex. App.—Fort Worth Aug.

25, 2016, no pet.) (concluding that officer had “reasonably trustworthy information

[from] his own eyes and ears” and “was the eye- and ear-witness to [a]ppellant’s

committing the offense of disorderly conduct” sufficient to support probable cause

to arrest appellant); In the Matter of A.S., No. 04-10-00621-CV, 2011 WL

1303700, at *4 (Tex. App.—San Antonio Apr. 6, 2011, no pet.) (mem. op.)

(concluding that officer’s personal observations that noise ordinances were being

violated were sufficient to justify an investigatory stop). Accordingly, we conclude

that there is substantial evidence that specific, articulable facts, combined with all

rational inferences drawn from those facts, supported the officer’s reasonable

suspicion to conduct the traffic stop to investigate Rodriguez for the offense of

                                          8
disorderly conduct or violating the City’s noise ordinance. See Derichsweiler, 348

S.W.3d at 916; Ford, 158 S.W.3d at 492.

      Because more than a scintilla of evidence supported the ALJ’s decision, the

trial court was required to affirm it. See Mireles, 9 S.W.3d at 131. Thus, the trial

court did not err. Accordingly, we overrule Rodriguez’s sole issue and affirm the

trial court’s judgment.

      AFFIRMED.



                                             ______________________________
                                                    CHARLES KREGER
                                                         Justice

Submitted on December 7, 2015
Opinion Delivered December 29, 2016

Before McKeithen, C.J., Kreger and Horton, JJ.




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