                          NUMBER 13-17-00501-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF PUBLIC SAFETY,                                          Appellant,

                                           v.

HERMINIO PASILLAS,                                                          Appellee.


               On appeal from the County Court at Law No. 3
                       of Cameron County, Texas.


                          MEMORANDUM OPINION

   Before Chief Justice Contreras and Justices Longoria and Perkes
               Memorandum Opinion by Justice Perkes

      Appellant Texas Department of Public Safety (Department) appeals the county

court’s judgment reversing the suspension of appellee Herminio Pasillas’s driver’s license

following his arrest for driving while intoxicated (DWI).   See TEX. PENAL CODE ANN.

§ 49.04 (West, Westlaw through 2017 1st C.S.). In what we construe as one issue, the
Department contends that the county court erroneously reversed the administrative law

judge’s (ALJ) decision on the grounds raised by Pasillas.1 We reverse the county court’s

judgment and render judgment reinstating the suspension of Pasillas’s driver’s license.

                                               I. BACKGROUND

        At 11:11 p.m. on September 10, 2016, Harlingen Police Officer Arnoldo Maldonado

stopped Pasillas for driving a vehicle with an inoperable taillamp. Officer Maldonado

immediately called for assistance, suspecting Pasillas of DWI.                           Officer Julio Garza

arrived at 11:12 p.m. and was apprised on the reason for the stop.                                 Officer Garza

observed Pasillas speaking “in a slurred speech”, and he detected a “moderate odor of

alcoholic beverage emitting from [Pasillas’s] breath.”                     Pasillas told Officer Garza he

drank two or three beers around 5 p.m. that evening. Officer Garza explained and

demonstrated the standardized field sobriety tests, before administering the tests to

Pasillas.       Based upon Pasillas’s poor performance and Officer Garza’s overall

observations, Officer Garza arrested Pasillas for DWI. At 11:30 p.m., Officer Garza read

the DIC-24 statutory warnings to Pasillas, and Pasillas agreed to provide a breath

sample.2 At 12:07 a.m., Pasillas’s breath alcohol concentration level was 0.091.3

        Following a procedural determination by the Department that Pasillas was

intoxicated while operating a motor vehicle in a public place, his driver’s license was

suspended. See TEX. TRANSP. CODE ANN. § 524.012 (West, Westlaw through 2017 1st

C.S.) (providing for the license suspension process).                               Pasillas requested an


        1   Pasillas has not filed an appellee’s brief to aid in our disposition of this appeal.

        2 The DIC-24 form contains a statutory warning delivered to a person prior to an officer’s request

for a specimen of breath or blood. 37 TEX. ADMIN. CODE § 17.4 (West, Westlaw through 2017 1st C.S.).
        3The Texas Penal Code defines “intoxicated” as “having an alcohol concentration of 0.08 or more.”
TEX. PENAL CODE ANN. § 49.01 (2)(B); see also id. § 49.01(2)(b).

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administrative license revocation (ALR) hearing to contest the suspension of his driver’s

license. See id. at § 524.031 (providing for the procedure to contest). During the ALR

hearing, the Department moved to admit several documents into evidence: (1) a peace

officer’s sworn report; (2) a breath test technical supervisor’s affidavit; and (3) a Texas

forensic breath alcohol analytical report. All three documents were admitted, and the

latter two documents were admitted without objection from Pasillas. Pasillas objected to

the officer’s sworn report, arguing the report did not include completed page numbers and

was, therefore, untrustworthy and in violation of Texas Rule of Evidence 803.

       Pasillas testified at the hearing, claiming he was not legally intoxicated. He stated

he last consumed alcohol over five hours before he was pulled over between 11 p.m. and

midnight. Pasillas also alleged the traffic stop was unduly prolonged because Officer

Garza took approximately forty-five minutes to arrive to assist Officer Maldonado.

Pasillas’s testimony ran contrary to the officer’s sworn report, which provided time stamps

for: Officer Maldonado’s traffic stop, Officer Garza’s arrival, Officer Garza’s reading of

the statutory warnings, and the breathalyzer reading.

       The ALJ made four findings of fact and one conclusion of law. In her findings of

fact, the ALJ determined the officer (1) had reasonable suspicion to stop Pasillas; (2) had

probable cause to arrest Pasillas for DWI; and (3) had properly advised Pasillas of the

required warnings before asking him to submit a specimen of his breath. The ALJ also

found (4) Pasillas was “operating a motor vehicle in a public place in Texas with an alcohol

concentration of 0.08 grams or greater of alcohol per 210 liters of breath.” The ALJ

concluded the Department met its burden under the Texas Transportation Code and

suspended Pasillas’s license for ninety days. See TEX. TRANSP. CODE ANN. § 524.035.



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      Pasillas appealed to Cameron County Court at Law No. 3. See TEX. TRANSP.

CODE ANN. § 524.041. Pasillas argued three issues: (1) the ALJ erred in admitting the

peace officer’s sworn report, and the ALJ’s ruling followed an “unlawful procedure” under

the Texas Government Code “to the extent that it allow[ed] an affidavit that refers to

unidentifiable attachments”; (2) the ALJ erred in finding against Pasillas because an

extrapolation defense, although not raised, existed; and (3) the ALJ erred in admitting the

breath test technical supervisor affidavit. Issues two and three were not argued during

the ALR hearing. The county court reversed, and this appeal followed.

                                     II. DISCUSSION

A. Standard of Review

      We review the county court’s substantial evidence review of the ALJ’s order de

novo. See Tex. Dep’t of Pub. Safety v. Struve, 79 S.W.3d 796, 800 (Tex. App.—Corpus

Christi 2002, pet. denied).   As a consequence, we independently review the ALJ’s

decision under a substantial evidence standard. See id.; see also Mireles v. Tex. Dep’t

of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999) (per curiam).          Whether substantial

evidence exists to support an ALJ’s order is a question of law. Tex. Dep’t of Pub. Safety

v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam). Courts must affirm the ALJ

findings if there is “more than a mere scintilla of evidence” to support them. See R.R.

Comm’n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792–93 (Tex. 1995)

(“Substantial evidence requires only more than a mere scintilla.”); see also Mireles, 9

S.W.3d at 131.     The Texas Government Code provides the limited parameters for

reversal on review:

      [A Court] shall reverse or remand the case for further proceedings if
      substantial rights of the appellant have been prejudiced because the

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       administrative findings, inferences, conclusions, or decisions are: (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.

TEX. GOV’T CODE ANN. § 2001.174(2) (West, Westlaw through 2017 1st C.S.).

       We therefore analyze:       (1) whether substantial evidence supports the ALJ’s

findings, as required under the Texas Transportation Code, to subject Pasillas to a ninety-

day license suspension; and (2) whether the ALJ’s findings, although supported by

evidence, somehow prejudiced the substantial rights of Pasillas through unlawful

procedure, one of the enumerated grounds in the Texas Government Code. See TEX.

GOV’T CODE ANN. § 2001.174; TEX. TRANSP. CODE ANN. § 524.035(a).

B. Applicable Law and Analysis

       At an ALR hearing to sustain a driver’s license suspension, the Department has

the burden to prove by a preponderance of the evidence that (1) there was “reasonable

suspicion to stop or probable cause to arrest” the person, and (2) the person had an

alcohol concentration of 0.08 or above while operating a motor vehicle in a public place.

TEX. TRANSP. CODE ANN. § 524.035(a).

       “For a traffic stop to be justified at its inception, an officer must have an objectively

reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred.”

United States v. Spears, 636 F. App’x 893, 898 (5th Cir. 2016); see also Rodriguez v.

United States, 135 S. Ct. 1609, 1614 (2015) (“A seizure for a traffic violation justifies a

police investigation of that violation.”). It is a traffic violation for a person to operate a

vehicle not equipped with an operable taillamp that: “(1) illuminates the rear license



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plate; and (2) makes the plate clearly legible at a distance of 50 feet from the rear.” TEX.

TRANSP. CODE ANN. § 547.322 (requiring vehicles to have taillamps); id. § 547.302

(requiring taillamps be illuminated at nighttime); see, e.g., United States v. Castro, 647 F.

App’x 388, 391 (5th Cir. 2016) (holding a defendant driving with a broken taillamp

amounted to reasonable suspicion to support a traffic stop); see also Walter v. State, 28

S.W.3d 538, 542 (Tex. Crim. App. 2000).

       Following a valid traffic stop, probable cause for a warrantless arrest exists if “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

that the person arrested had committed or was committing an offense.” Amador v. State,

275 S.W.3d 872, 878 (Tex. Crim. App. 2009). The test for probable cause is an objective

one, requiring a consideration of the totality of the circumstances facing the arresting

officer at the time of the arrest. Id.

       Generally, a law enforcement officer’s sworn report, which may include an officer’s

reasonable suspicion for a stop and probable case for arrest, is not excluded as evidence

in ALR proceedings. See Tex. Dep’t of Pub. Safety v. Caruana, 363 S.W.3d 558, 564

(Tex. 2012); see also TEX. R. EVID. 803(8) (providing the exception to hearsay for public

records).    Law enforcement observations are not presumed unreliable in ALR

proceedings. See Caruana, 363 S.W.3d at 564. Therefore, the onus is on the party

objecting to the admittance of an officer’s sworn report to “demonstrate that the source of

information or other circumstances indicate a lack of trustworthiness.” Id.; see TEX. R.

EVID. 803(8)(B). Further, should the ALJ admit objected to evidence of an officer’s sworn

report, we review that decision for abuse of discretion and reverse only if the court “acted



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without reference to any guiding rules and principles.” Tex. Dep’t of Pub. Safety v.

Jennings, 1 S.W.3d 348, 351 (Tex. App.—Corpus Christi 1999, no pet.).

      Here, Pasillas did not dispute the existence of reasonable suspicion to support the

traffic stop: an inoperable taillamp. See TEX. TRANSP. CODE ANN. § 547.302; see also

Castro, 647 F. App’x at 391. Pasillas, however, argued during the ALR proceedings that

he was not intoxicated at the time of his encounter with law enforcement, and,

consequently, that there was insufficient probable cause to arrest him for DWI. At the

ALR hearing, Pasillas objected to the admittance of the officer’s sworn report, which

detailed the reasonable suspicion for the stop and probable cause for Pasillas’s arrest.

In the county court, Pasillas argued the officer’s sworn report was admitted “through

unlawful procedure” because the report lacked proper pagination. The only page in the

report without a page number is entitled “DIC-24, Statutory Warnings.” Because the

DIC-24 warnings could have been added to or altered prior to the sworn statement,

Pasillas argued the entire officer’s sworn report indicated a lack of trustworthiness and

was inadmissible hearsay under the Texas Rules of Evidence. See TEX. R. EVID. 802;

see also TEX. R. EVID. 803(8).

      The Department argued that missing pagination went to the weight of the evidence,

not its admissibility. See Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300, 1307 (5th Cir.

1991) (“[The] general complaint that the reports are incomplete and inaccurate are

matters going to the weight of this evidence and not its admissibility.”).     Moreover,

throughout the paginated portion of the officer’s sworn report, the officer made repeated

references to the DIC-24:        (1) he stated he “read the statutory warnings[,] asking

[Pasillas] for a breath sample” on page three; (2) he checked off a box for “DIC-24” under



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the column for “Other Paper Work & Evidence Submitted” on page seven; and (3) he

notated on page eight that he read the DIC-24 warnings at 11:30 p.m. in English, Pasillas

stated he understood, and the DIC-24 warnings were read to Pasillas on video. The

frequent references to the DIC-24 throughout the officer’s sworn report supported the

Department’s position that the lack of pagination on the DIC-24 itself was an oversight

and not an indicator of untrustworthiness. The ALJ, as the factfinder, agreed. See

Ceres Gulf, Inc. v. Dir., Office of Worker's Comp. Programs, 683 F.3d 225, 228 (5th Cir.

2012) (holding the ALJ determined the credibility of the witnesses and facts presented).

       The ALJ’s decision here is supported by the same rule of evidence that Pasillas

argued should preclude the officer’s sworn report. See TEX. R. EVID. 803(8); Jennings,

1 S.W.3d at 351. Because Pasillas “fail[ed] to demonstrate . . . a lack of trustworthiness,”

as he was required to do so under Rule 803(8), we hold the ALJ’s admission of the

officer’s sworn report over Pasillas’s objection was not an abuse of discretion nor made

“through unlawful procedure” as Pasillas alleged. TEX. GOV’T CODE ANN. § 2001.174;

TEX. R. EVID. 803(8).

       In addition to permitting the officer’s sworn report over Pasillas’s objection, the ALJ

chose to believe the officer’s recorded timeline of events over Pasillas’s recollection.

See Castro, 227 S.W.3d at 788. Pasillas’s assertion that there was no probable cause

for his arrest because he was not intoxicated conflicted with the officer’s observations that

Pasillas appeared disorderly, swayed when he stood and walked, had blood-shot and

watery eyes, smelled of alcohol, and failed all three field sobriety tests.        See, e.g.,

Oringderff v. State, 528 S.W.3d 582, 590 (Tex. App.—Texarkana 2017, no pet.) (holding

that poor performance on field sobriety tests and the odor of alcohol emitting from the



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defendant was sufficient probable cause to arrest the defendant); Polly v. State, 533

S.W.3d 439, 442 (Tex. App.—San Antonio 2016, no pet.) (holding probable cause to

arrest when the defendant’s breath smelled of alcohol, the defendant failed field sobriety

tests, and the defendant admitted to consuming alcohol prior to driving). Similarly, the

breath test, demonstrating Pasillas had a blood alcohol level of 0.09, is more than a mere

scintilla of evidence to support the ALJ’s finding that Pasillas had an alcohol concentration

of 0.08 or more while driving. See Mireles, 9 S.W.3d at 132.

       We hold there existed substantial evidence to support the ALJ’s decision to

suspend Pasillas’s driver’s license.     See TEX. GOV’T CODE ANN. § 2001.174(2)(E).

Additionally, the record does not support a position that the ALJ’s findings, inferences,

conclusions, or decisions were “made through unlawful procedure.”                   See id.

§ 2001.174(2)(C). We sustain the Department’s sole issue on appeal.

                    III. PASILLAS’S UNPRESERVED ARGUMENTS

       In the county court, Pasillas also argued that the ALJ erred in finding against him

because an extrapolation defense existed, although he did not argue the defense before

the ALJ. Pasillas further argued that the ALJ erred in admitting the breath test technical

supervisor’s affidavit, although he did not object to its admittance during the ALR hearing.

To the extent the county court considered these issues in its review, that was improper;

Pasillas was required to timely raise these issues during the ALR hearing, and his failure

to do so waived the issues for appeal in the county court. See TEX. R. APP. P. 33.1; see,

e.g., Stowers v. Tex. Dep’t of Pub. Safety, 465 S.W.3d 257, 265 (Tex. App.—Houston

[1st Dist.] 2015, no pet.) (holding an objection of a lab report’s admittance during closing

arguments in an ALR hearing did not preserve the issue for review in the county court);



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see also Balkum v. Tex. Dep’t of Pub. Safety, 33 S.W.3d 263, 266–67 (Tex. App.—El

Paso 2000, no pet.) (holding a sixth amendment complaint was waived because it was

not raised during the ALR hearing); see generally Mireles, 9 S.W.3d at 131 (“Nothing in

the statutory framework specifically mandates extrapolation evidence.”).

                                    IV. CONCLUSION

      We conclude that the county court erred by reversing the ALJ’s ruling to sustain

the license suspension. We reverse the judgment of the county court at law and render

judgment reinstating the suspension of Pasillas’s driver’s license.



                                                              GREGORY T. PERKES
                                                              Justice


Delivered and filed the
25th day of April, 2019.




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