                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 2-07-459-CV


TEXAS DEPARTMENT OF                                             APPELLANT
PUBLIC SAFETY

                                      V.

FRANK RILEY GILFEATHER                                            APPELLEE


                                  ------------

            FROM COUNTY COURT AT LAW OF WISE COUNTY

                                  ------------

                       OPINION ON REHEARING

                                  ------------

                               I. Introduction

     After considering Appellant Texas Department of Public Safety’s motion

for rehearing en banc, we grant the motion, withdraw our opinion and judgment

dated March 5, 2009, and substitute the following.

     In one issue, the Department challenges the trial court’s reversal of an

administrative law judge’s (“ALJ”) order suspending Appellee Frank Riley
Gilfeather’s driver’s license. We reverse the trial court’s judgment and render

judgment reinstating the ALJ’s order.

                      II. Factual and Procedural History

       Shortly after midnight on December 12, 2006, Trooper Chris Markin

stopped Gilfeather for speeding but let him go with a warning. In a separate

incident approximately five minutes later, Trooper Christopher Petty stopped

Gilfeather for driving 68 m.p.h. in a 55 m.p.h. speed zone.1

       Upon making contact with Gilfeather, Trooper Petty asked him for his

driver’s license and insurance. Instead of handing Trooper Petty the requested

items, Gilfeather handed him the warning that Trooper Markin had just given

him.   While talking to Gilfeather, Trooper Petty noticed an odor of alcohol

coming from the vehicle and saw that Gilfeather had red, bloodshot, glassy

eyes. Trooper Petty asked Gilfeather to step out of the vehicle to determine if

the odor was coming from Gilfeather or the vehicle. Gilfeather did not stagger

as he stepped out of the car, but Trooper Petty did notice that Gilfeather

swayed as he walked and as he stood on the side of the road. Trooper Petty

detected a strong odor of alcohol on Gilfeather’s breath and decided to

administer field sobriety tests. Gilfeather refused to participate in the tests.



       1
       … Trooper Petty testified that he used radar equipment to determine
Gilfeather’s speed.

                                        2
      Based on his observations, Trooper Petty arrested Gilfeather for driving

while intoxicated. After the arrest, Trooper Petty asked Gilfeather to take a

breath test. Gilfeather refused and signed a warning form acknowledging that

if he refused the breath test, his license would be suspended for not less than

180 days.

      Gilfeather’s license was subsequently suspended. Gilfeather requested

an administrative hearing to contest the suspension.      At the hearing, the

Department’s evidence consisted of Trooper Petty’s offense report and his

testimony. Gilfeather testified on his own behalf. After the hearing, the ALJ

issued an order sustaining the suspension of Gilfeather’s driver’s license.

Gilfeather appealed the decision to the Wise County Court at Law, which

reversed the ALJ’s decision. The Department now appeals.

                           III. Standard of Review

      A review in the county court at law or county court of an administrative

license suspension is conducted under the substantial evidence standard of

review. See Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex.

1999).   Under this standard, the reviewing court cannot replace the ALJ’s

judgment with its own. See id.; R.R. Comm’n of Tex. v. Torch Operating Co.,

912 S.W.2d 790, 792 (Tex. 1995). If the ALJ’s decision is supported by more

than a scintilla of evidence, that decision must be upheld. See Torch Operating

                                      3
Co., 912 S.W.2d at 792–93. However, a trial court may reverse an ALJ’s

determination if a substantial right of the appellant has been prejudiced because

the ALJ’s findings, inferences, conclusions, or decisions are not reasonably

supported by substantial evidence considering the record as a whole. See Tex.

Gov’t Code Ann. § 2001.174(2)(E) (Vernon 2008).

      The court of appeals reviews the trial court’s substantial evidence review

de novo. Tex. Dep't of Pub. Safety v. Valdez, 956 S.W.2d 767, 769 (Tex.

App.—San Antonio 1997, no pet.). The issue for the reviewing court is not

whether the ALJ’s decision was correct but only whether the record

demonstrates some reasonable basis for the ALJ’s decision. See Tex. Dep't of

Pub. Safety v. Fisher, 56 S.W.3d 159, 162 (Tex. App.—Dallas 2001, no pet.)

(citing Mireles, 9 S.W.3d at 131). Courts must affirm administrative findings

in contested cases if there is more than a scintilla of evidence to support them,

even if the findings are against the preponderance of the evidence. See id. If

the evidence is conflicting, the court must defer to the ALJ’s factual findings.

See Brown v. Tex. Dep’t of Ins., 34 S.W.3d 683, 689 (Tex. App.—Austin

2000, no pet.).

                                IV. Discussion

      In its sole issue, the Department asserts that the trial court erred in

reversing the ALJ’s decision to sustain the suspension of Gilfeather’s license

                                       4
because there was substantial evidence to support each of the findings required

to do so. We agree.

      Pursuant to the transportation code, if a person is arrested and the peace

officer making the arrest has reasonable grounds to believe that the person is

driving while intoxicated, specimens of the person’s breath or blood may be

taken. See Tex. Transp. Code Ann. § 724.012(a)(1) (Vernon Supp. 2008). If

the person refuses to submit to the taking of a specimen, the Department shall

suspend the person’s license to operate a motor vehicle on a public highway for

180 days. Id. § 724.035(a)(1) (Vernon Supp. 2008). If a person’s license is

suspended under this chapter, that person may request a hearing on the

suspension.     Id. § 724.041 (Vernon Supp. 2008).        At the hearing, the

Department must prove the following:

      (1) reasonable suspicion or probable cause existed to stop or arrest
      the person;

      (2) probable cause existed to believe that the person was:

              (A) operating a motor vehicle in a public place while
              intoxicated; . . .

              ....

      (3) the person was placed under arrest by the officer and was
      requested to submit to the taking of a specimen; and

      (4) the person refused to submit to the taking of a specimen on
      request of the officer.

                                       5
Id. § 724.042 (Vernon Supp. 2008).

      Here, the undisputed evidence showed that Trooper Petty placed

Gilfeather under arrest, that Trooper Petty requested a specimen from

Gilfeather, and that Gilfeather refused to give a specimen. Thus, the only two

contested issues are (1) whether Trooper Petty had reasonable suspicion or

probable cause to stop or arrest Gilfeather and (2) whether Trooper Petty had

probable cause to believe that Gilfeather was driving while intoxicated.

      1. Reasonable Suspicion to Stop Gilfeather

      An officer conducts a lawful stop when he has reasonable suspicion to

believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005). 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. Id.; Garcia

v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Under this standard,

we look to whether an objective basis for the stop existed while considering the

totality of the circumstances. Ford, 158 S.W.3d at 492–93. An officer may

stop a driver if he has reasonable suspicion that a traffic violation was in

progress or had been committed. Fisher, 56 S.W.3d at 163.




                                       6
        After reviewing the administrative record, we conclude that substantial

evidence supports the ALJ’s reasonable suspicion determination. Specifically,

Trooper Petty testified that Gilfeather had been driving 68 m.p.h. in a 55 m.p.h.

zone.       Trooper Petty further testified that he had used radar equipment to

determine Gilfeather’s speed. Thus, Trooper Petty had reasonable suspicion to

stop Gilfeather for the offense of speeding.2 See id.; see also Tex. Transp.

Code Ann. § 545.351 (Vernon 1999) (declaring that speeding is a traffic

violation for which an officer may lawfully stop and detain a person).

Accordingly, the Department satisfied the first contested issue under section

724.042.

        2. Probable Cause that Gilfeather was Driving While Intoxicated

        Probable cause for a warrantless arrest exists if, at the moment the arrest

is made, 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 as believing that the person arrested had committed or




        2
        … The Department did not have to prove a connection between Trooper
Petty stopping Gilfeather for speeding and the arrest of Gilfeather for DWI. See
Tex. Dep’t of Pub. Safety v. Torres, 54 S.W.3d 438, 441 (Tex. App.—Fort
Worth 2001, no pet.) (holding that the Department is not required to prove a
connection between the reason for the stop and the reason for the person’s
arrest, and an officer may validly stop a vehicle for one offense and arrest the
driver for an unrelated offense).

                                         7
was committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223,

225 (1964). “An offense is deemed to have occurred within the presence or

view of an officer when any of his senses afford him an awareness of its

occurrence.” State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).

The test for probable cause is an objective one, unrelated to the subjective

beliefs of the arresting officer, and it requires a consideration of the totality of

the circumstances facing the arresting officer. Maryland v. Pringle, 540 U.S.

366, 371, 124 S. Ct. 795, 800 (2003); Beck, 379 U.S. at 96–97, 85 S. Ct.

at 228. A finding of probable cause requires “more than bare suspicion” but

“less than . . . would justify . . . conviction.” Brinegar v. United States, 338

U.S. 160, 175, 69 S. Ct. 1302, 1310 (1949).

      Speeding can indicate impaired mental judgment and, therefore, is a

factor to be considered as part of the totality of the circumstances. See, e.g.,

Arthur v. State, 216 S.W.3d 50, 55–56 (Tex. App.—Fort Worth 2007, no

pet.); see also State v. Cullen, 227 S.W.3d 278, 282 (Tex. App.—San Antonio

2007, pet. ref’d). Bloodshot eyes, an odor of alcohol on a person’s breath, and

unsteady balance are all classic symptoms of intoxication. See Cotton v. State,

686 S.W.2d 140, 142–43 & n.3 (Tex. Crim. App. 1985). Finally, this court

and numerous other courts of appeals have held that the refusal to participate

in field sobriety tests is a factor to be considered in the totality of the

                                         8
circumstances.    Maxwell v. State, 253 S.W.3d 309, 314 (Tex. App.—Fort

Worth 2008, pet. ref’d); see Partee v. Tex. Dep’t of Pub. Safety, 249 S.W.3d

495, 501–02 (Tex. App.—Amarillo 2007, no pet.); Tex. Dep’t of Pub. Safety

v. Nielsen, 102 S.W.3d 313, 317 (Tex. App.—Beaumont 2003, no pet.); see

also Lonsdale v. State, No. 08-05-00139-CR, 2006 WL 2480342, at *3 (Tex.

App.—El Paso Aug. 29, 2006, pet. ref’d) (not designated for publication);

Peters v. Tex. Dep't of Pub. Safety, No. 05-05-00103-CV, 2005 WL 3007783,

at *2 (Tex. App.—Dallas Nov. 10, 2005, no pet.) (mem. op., not designated for

publication); Lemay v. Tex. Dep't of Pub. Safety, No. 04-05-00089-CV, 2005

WL 2755928, at *1 (Tex. App.—San Antonio Oct. 26, 2005, no pet.) (mem.

op., not designated for publication).

      Here, the evidence showed that Gilfeather had received a warning from

Trooper Markin for speeding approximately five minutes prior to Trooper Petty’s

stop; that Trooper Petty stopped Gilfeather for driving thirteen miles over the

speed limit; that Gilfeather had red, bloodshot, glassy eyes; that Gilfeather

swayed while walking and while standing on the side of the road; that

Gilfeather had a strong odor of alcohol on his breath; and that Gilfeather had

refused to participate in any of the field sobriety tests.

      Based on the foregoing evidence, as applied to the totality of the

circumstances test, we conclude that the ALJ’s finding that Trooper Petty had

                                        9
probable cause to believe that Gilfeather was driving while intoxicated was

reasonably supported by substantial evidence. See State v. Garrett, 22 S.W.3d

650, 654 (Tex. App.—Austin 2000, no pet.) (finding probable cause to arrest

defendant for DWI when officer testified defendant smelled of alcohol, had

watery eyes, was unsteady on his feet, and drove illegally); Reynolds v. State,

902 S.W.2d 558, 560 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d)

(finding probable cause to arrest defendant for DWI when officer testified

defendant had slurred speech, bloodshot eyes, breath that smelled of alcohol,

and posed a danger to himself and others). Thus, the Department satisfied the

second, and final, contested issue under section 724.042.

      We therefore conclude that the decision by the ALJ to continue

suspension of Gilfeather’s license was supported by more than a scintilla of

evidence and that there was some reasonable basis in the record for the action

taken by the ALJ. See Mireles, 9 S.W.3d at 131. Accordingly, we sustain the

Department’s sole issue.




                                      10
                               V. Conclusion

     Having sustained the Department’s sole issue, we reverse the trial court’s

judgment and render judgment reinstating the ALJ’s order.




                                          BOB MCCOY
                                          JUSTICE

EN BANC

DAUPHINOT, J. filed a dissenting opinion.

WALKER, J. concurs without opinion.

DELIVERED: August 6, 2009




                                     11
                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-07-459-CV


TEXAS DEPARTMENT OF                                               APPELLANT
PUBLIC SAFETY

                                       V.

FRANK RILEY GILFEATHER                                              APPELLEE

                                   ------------

            FROM COUNTY COURT AT LAW OF WISE COUNTY

                                   ------------

               DISSENTING OPINION ON REHEARING

                                   ------------

      I must respectfully dissent from the majority opinion’s holding that the

refusal to participate in field sobriety tests is damning evidence that we must

consider in performing a de novo substantial evidence review of an ALJ’s

decision on probable cause.     That is, I cannot agree that an absence of

evidence must perforce constitute evidence of guilt.      Does a person who

refuses to give a statement to the police or to be interviewed by the police do
so only because to provide a statement or an interview would reveal his guilt,

and, on appeal, must we then treat the absence of a statement or an interview

as evidence of guilt?

      Suppose a person refuses to consent to a search of his vehicle, his home,

his office, or his person. Suppose he refuses to consent to a search of a home,

vehicle, or office he shares with someone else. Suppose a person refuses to

voluntarily provide a voice exemplar, or hair follicles, or a blood sample, or a

handwriting sample.     Suppose a person refuses to allow his child to be

interviewed. Is this evidence of his guilt?

      The law clearly provides that a person may refuse to participate in any

interview by the police or, having begun to participate, may terminate the

interview at any point.1 This is true whether a person is or is not in custody.

How, then, can we say that if a person invokes his right not to speak with the

police and not to perform demonstrations for the police, we must consider this

decision as evidence of guilt?

      Even the statute that permits the trier of fact to consider the refusal to

submit to a breath test, under the implied consent rule, does not mandate that




      1
      … Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a) (Vernon 2005); see
Miranda v. Arizona, 384 U.S. 436, 445, 86 S. Ct. 1602, 1612 (1966).

                                       2
the refusal be considered as evidence of guilt.2 As the Texas Court of Criminal

Appeals has explained,

      [A]lthough Section 724.061 of the Texas Transportation Code
      expressly allows the court to admit the evidence of a defendant’s
      refusal to take a breath test, there is no statutory language that
      directs the jury to attach any special weight or significance to such
      evidence.     That the statute expressly makes the evidence
      admissible does not, by itself, also authorize the trial court to single
      it out for the jury’s particular attention. . . .

             Nor does Texas law anywhere establish any presumption that
      arises in a DWI case from the defendant’s refusal to take a breath
      test. Evidence of the appellant’s refusal to submit to a breath test
      is relevant for precisely the reason that the trial court identified in
      the contested jury instruction, namely, that it tends to show a
      consciousness of guilt on his part. But Section 724.061 of the
      Transportation Code does not establish a legally recognized
      presumption of consciousness of guilt that follows from the fact of
      refusal. We are aware of no other statutory language that
      expressly authorizes the jury to presume a consciousness of guilt
      from the refusal to take a breath test. In the absence of such a
      legal presumption, it is improper for the trial court to instruct the
      jury with respect to inferences that may or may not be drawn from
      evidentiary facts to ultimate or elemental facts.3


      Clearly, the officer’s questioning of Gilfeather at the side of the road was

an interview, and even an interrogation. Unquestionably, Gilfeather was not

free to leave. At no time did the officer provide any of the warnings mandated

by state or federal law. Gilfeather declined to participate in field sobriety tests

      2
          … See Tex. Transp. Code Ann. § 724.061 (Vernon 1999).
      3
        … Bartlett v. State, 270 S.W.3d 147, 152–53 (Tex. Crim. App. 2008)
(citations omitted).

                                         3
because his father, a lawyer and a judge, had advised him not to participate in

them. The majority holds that we must consider this decision not as evidence

that Gilfeather was thinking clearly enough to very politely explain his father’s

advice and to follow it but as evidence of intoxication.

      Evidence of a person’s refusal to submit to a breath test is deemed

admissible by statute under the implied consent provision.4 Nowhere has the

legislature provided implied consent to participate in field sobriety tests.

Evidence that Gilfeather declined to participate in field sobriety tests is simply

evidence that he declined to participate in field sobriety tests. It is not evidence

of his ability or inability to perform such field sobriety tests.

      I cannot agree with the majority’s mandate that we must consider the

absence of evidence as evidence of guilt.         I would hold that Gilfeather’s

decision not to participate in that portion of the interview was a decision to

decline to participate in that portion of the interview. I cannot, as does the

majority, say that we must consider his declining the officer’s request to

perform on the side of the road as evidence of guilt.               I therefore must

respectfully dissent.

                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

DELIVERED: August 6, 2009



      4
          … See Tex. Transp. Code Ann. § 724.061.

                                         4
