                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-08-276-CV


TEXAS DEPARTMENT OF                                                  APPELLANT
PUBLIC SAFETY

                                        V.

JEFFERY BRUCE AXT                                                      APPELLEE

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

       FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

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

                                   OPINION

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

                                I. INTRODUCTION

      Appellant Texas Department of Public Safety (the Department) appeals

the trial court’s order reversing an administrative order that suspended appellee

Jeffery Bruce Axt’s driver’s license for refusing to provide a breath specimen.

In three issues, the Department argues that the trial court erred by reversing the

administrative law judge’s (ALJ’s) findings that reasonable suspicion existed for

the officers to stop Axt and that probable cause existed to believe that Axt had
been driving in a public place while intoxicated. Because we hold that the

officers did not have reasonable suspicion to stop Axt, we will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Axt was driving home from a bar at approximately 2:30 a.m. early one

morning when he entered the controlled access parking lot for the Arlington

police department. The parking lot’s entrance and exit are normally restricted

by yellow arms that lower to block entry and exit. That night, however, the

yellow arms were raised, permitting entrance to the lot. A sign at the parking

lot entrance by the raised arms indicated restricted access for authorized

personnel only.

      Officers Joseph Balson and Meredith DeWall were standing outside the

police department’s sally port when Axt drove into the parking lot via the

entrance with the raised arm. Although the officers did not see Axt’s car enter

the lot, they saw the car inside the lot and noticed that the driver appeared to

be lost and had a difficult time turning and reversing his car to position it

toward the lot’s exit. The officers stepped in front of Axt’s car while it was

still inside the parking lot and used a flashlight to direct Axt to stop. Officer

Balson then noticed that Axt had red, glassy eyes and slurred speech and

appeared disoriented. The officer also detected a strong odor of alcohol coming

from the vehicle. Axt admitted that he had just left a bar down the street.

                                       2
      The officers detained Axt for field sobriety testing and called Officer

Travis Kuhn to administer the tests. Officer Kuhn determined that Axt was

intoxicated, arrested him, and after warning him of the consequences of

refusing a breath test, requested that he provide a breath specimen.           Axt

refused, and the Department subsequently suspended his driver’s license.

      Axt requested an administrative hearing regarding the suspension. Officer

Balson was the Department’s sole witness at the administrative hearing. The

ALJ found that the officers had reasonable suspicion to stop Axt and that Axt

was operating a motor vehicle in a public place while intoxicated. The ALJ thus

authorized the Department to suspend Axt’s driver’s license for 180 days. Axt

appealed the ALJ’s decision to the trial court. The trial court reversed the

ALJ’s decision, holding that there was no reasonable suspicion to stop Axt.

This appeal by the Department followed.

    III. D RIVER’S L ICENSE S USPENSION P ROCEDURES AND S TANDARD OF R EVIEW

      At a driver’s license suspension hearing, the Department bears the burden

of proving that (1) reasonable suspicion or probable cause existed to stop or

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

operating a motor vehicle in a public place while intoxicated; (3) the person was

placed under arrest by the officer and subsequently asked to submit to a breath

or blood test; and (4) the person refused to submit to the breath or blood

                                       3
specimen. See Tex. Transp. Code Ann. § 724.042 (Vernon Supp. 2008).

      The driver may appeal the ALJ’s decision, in which case the county court

on appeal will review the ALJ’s decision under the substantial evidence

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

131 (Tex. 1999). Additionally, 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 agency’s decision is

correct, but only whether the record demonstrates some reasonable basis for

the agency’s action. Mireles, 9 S.W.3d at 131; Tex. Dep’t of Pub. Safety v.

Vasquez, 225 S.W.3d 47, 52 (Tex. App.—El Paso 2005, no pet.). The court

may not substitute its judgment on the weight of the evidence for that of the

ALJ and must uphold the ALJ’s finding even if the evidence preponderates

against it so long as enough evidence suggests that the ALJ’s determination

was within the bounds of reasonableness. Mireles, 9 S.W.3d at 131; S.W.

Pub. Serv. Co. v. Pub. Util. Comm’n of Tex., 962 S.W.2d 207, 215 (Tex.

App.—Austin 1998, pet. denied).

      The burden for overturning an agency ruling is formidable. Tex. Dep’t of

Pub. Safety v. Pucek, 22 S.W.3d 63, 67 (Tex. App.—Corpus Christi 2000, no

pet.). If there is evidence to support the ALJ’s findings, its decision must be

                                      4
upheld.   Tex. Dep’t of Pub. Safety v. Stacy, 954 S.W.2d 80, 83 (Tex.

App.—San Antonio 1997, no writ). But 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. Tex.

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

                    IV. R EASONABLE S USPICION TO S TOP A XT

      In its first issue, the Department argues that the trial court erred by

reversing the ALJ’s finding that the officers had reasonable suspicion to stop

Axt. The Department contends that reasonable suspicion existed because Axt

committed criminal trespass by entering the Arlington Police Department’s

parking lot.

      A police officer may stop and briefly detain a person for investigative

purposes if the officer has a reasonable suspicion, supported by articulable

facts, that the person detained actually is, has been, or soon will be engaged

in criminal activity. See Tex. Dep’t of Pub. Safety v. Fisher, 56 S.W.3d 159,

163 (Tex. App.—Dallas 2001, no pet.) (citing Tex. Dep’t of Pub. Safety v.

Chang, 994 S.W.2d 875, 877 (Tex. App.—Austin 1999, no pet.)). This is an

objective standard that disregards any subjective intent of the officer making

the stop and looks solely to whether an objective basis for the stop exists. See

                                       5
Ford v. State, 158 S.W.3d 488, 492–93 (Tex. Crim. App. 2005). The burden

on the State is to demonstrate the reasonableness of the stop. See Fisher, 56

S.W.3d at 163. The State is not required to show an offense was actually

committed or to prove every element of a specific offense, 1 but only that the

officer reasonably believed a crime was in progress. Fisher, 56 S.W.3d at 163;

Martinez v. State, 29 S.W.3d 609, 611–12 (Tex. App.—Houston [1st Dist.]

2000, pet. ref’d).

      The Texas Penal Code defines criminal trespass to include entry onto the

property of another without effective consent and with notice that the entry

was forbidden. Tex. Penal Code Ann. § 30.05(a)(1) (Vernon Supp. 2008).

Even though the statutory language of section 30.05(a) does not prescribe a

culpable mental state, one is nevertheless required. See Tex. Pen. Code Ann.

§ 6.02(b) (Vernon 2008). Intent, knowledge, or recklessness is sufficient to

establish responsibility for criminal trespass. West v. State, 567 S.W.2d 515,

516 (Tex. Crim. App. [Panel Op.] 1978); Day v. State, 532 S.W.2d 302, 306

n.2 (Tex. Crim. App. 1976) (op. on reh’g), disapproved of on other grounds by


      1
        Contrary to the dissent’s assertion, we expressly do not hold that the
Department is required to prove every element of an offense to justify an
investigative stop. Dissenting op. at 5. Instead, we hold that, applying the
substantial evidence standard, the trial court correctly found that the ALJ’s
reasonable suspicion determination was not supported by substantial evidence.
See Tex. Gov’t Code Ann. § 2001.174(2); Mireles, 9 S.W.3d at 131; Vasquez,
225 S.W.3d at 52.

                                      6
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007); see Tex. Pen. Code

Ann. § 6.02(c). Thus, the offense of criminal trespass consists of the following

elements: (1) a person (2) without effective consent (3) enters or remains on

the property or in a building of another (4) knowingly or intentionally or

recklessly (5) when he had notice that entry was forbidden or received notice

to depart but failed to do so. See Day, 532 S.W.2d at 306.

      Regarding the fifth element—notice—the court of criminal appeals has

explained that

      the obvious intent of the Legislature in including the “notice”
      requirement in the criminal trespass statute . . . [was] to prevent
      an innocent trespass upon the “property” of another from incurring
      criminal liability. For example, where one innocently trespasses
      upon the unfenced and unposted land of another, no criminal
      offense would be committed.

Id. Section 30.05 defines “notice” to include “fencing or other enclosure

obviously designed to exclude intruders” and “signs posted on the property or

at the entrance to the building, reasonably likely to come to the attention of

intruders, indicating that entry is forbidden.”     Tex. Penal Code Ann. §

30.05(b)(2)(B)–(C). Thus, as a matter of law, no criminal trespass may occur

in the absence of notice that entry is prohibited. See id. § 30.05(a)(1); Moreno

v. State, 702 S.W.2d 636, 640 (Tex. Crim. App. 1986).




                                       7
      Here, we are concerned with the ALJ’s determination that the officers

had reasonable articulable suspicion that Axt was committing the offense of

criminal trespass because the record establishes that on the night in question

public access to the lot was not restricted. The Department did not need to

prove that Axt actually committed criminal trespass by entering the parking lot;

rather, it needed to prove that Officer Balson reasonably believed that Axt was

committing the offense. See Fisher, 56 S.W.3d at 163; Martinez, 29 S.W.3d

at 611–12. But despite the restricted access sign, Officer Balson (the officer

who stopped Axt and the only witness at the administrative hearing) testified

and put in his report that on the night in question the arms to the entrance and

exit gates were up—allowing public access to the parking lot—when Axt

entered the lot at 2:30 in the morning. 2 He further testified that Axt appeared


      2
       Specifically, the following exchange took place between Officer Balson
and Axt’s defense attorney at the administrative hearing:

      Q     Okay. All right. That entry normally has controlled access,
            doesn’t it?

      A     Yes, sir.

      Q     It has gates for the entry lane—or a gate for the entry lane and a
            gate for the exit lane. Is that correct?

      A     Yes, sir.

      Q     The gate being a yellow arm that lowers to block entry or exit. Is
            that correct?

                                       8
to be turning around to leave, rather than attempting to park in, the parking lot




      A     Yes, sir.

      Q     At that particular time both gates were up and not restricting
            entry or exit. Is that correct?

      A     That’s correct.

      Q     And you even put in your report that the—both gates were
            up allowing public access to the parking lot. Is that correct?

      A     I don’t believe I said that. I think Officer DeWall did.

            ....

      Q     Okay. Your narrative starts here. Is that correct?

      A     Yes, sir.

      Q     Okay. Then as it continues on the next page, [“]Both gates
            were up allowing public access to the parking lot.[“] Is that
            correct?

      A     Okay. Sure.

      Q     Okay. That’s what you put in your report. Right?

      A     Yes. I just didn’t see it.

The Department’s attorney did not ask Officer Balson any questions at the
administrative hearing. Thus, the record establishes that any notice provided
by the restricted access sign was negated by the open gates and by the fact
that it was 2:00 a.m., not normal business hours, when Axt entered the lot.
That is, Officer Balson’s testimony and report establish that access to the lot
was not restricted on the night in question. Consequently, reasonable suspicion
cannot exist that Axt was committing criminal trespass.

                                         9
when he stopped him. Thus, Officer Balson could not have had a reasonable

basis to believe that Axt was committing criminal trespass in light of his

testimony and his police report indicating that the parking lot’s open gates

allowed public access on the night in question. The Department has failed to

point to evidence in the record that would lead a reasonable person to believe

that Axt was committing criminal trespass by turning around in a parking lot at

2:30 a.m. when the lot’s gated arms were raised. See Viveros v. State, 828

S.W.2d 2, 4 (Tex. Crim. App. 1992) (holding that driving very slowly was not

suspicious activity that would create a reasonable belief that such activity was

related to crime).

      For these reasons, we hold that the Department failed to satisfy its

burden to demonstrate that an objective basis for the stop existed. See Ford,

158 S.W.3d at 492–93; Fisher, 56 S.W.3d at 163. Applying the substantial

evidence standard, we hold that the trial court correctly found that the ALJ’s

reasonable suspicion determination was not supported by substantial evidence.

See Tex. Gov’t Code Ann. § 2001.174(2); Mireles, 9 S.W.3d at 131; Vasquez,

225 S.W.3d at 52.




                                      10
      Because of our disposition of the Department’s first issue, we need not

address its second or third issues. See Tex. R. App. P. 47.1. We affirm the

trial court’s judgment.




                                               SUE WALKER
                                               JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.

CAYCE, C.J. filed a dissenting opinion.

DELIVERED: June 25, 2009




                                     11
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-276-CV


TEXAS DEPARTMENT OF PUBLIC                                          APPELLANT
SAFETY
                                       V.

JEFFERY BRUCE AXT                                                     APPELLEE

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

      FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

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

                          DISSENTING OPINION

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

      I respectfully dissent. I believe the Department met its burden of proving

that reasonable suspicion existed to stop Axt’s vehicle. I further believe that

substantial evidence supports the administrative law judge’s (ALJ) conclusion

that Officer Kuhn had probable cause to believe Axt was operating a motor

vehicle while intoxicated on a public road.       Therefore, I would sustain the
Department’s issues, reverse the trial court’s judgment and render judgment

reinstating the ALJ’s order authorizing the Department to suspend Axt’s driver’s

license.

      The background facts are as follows:

      At around 2:30 a.m. on October 27, 2007, two Arlington police officers

saw Axt driving a car in a restricted jail parking lot that is marked with signs

declaring the area to be for authorized personnel only. The parking lot is also

controlled by an access gate, but that night the gate was malfunctioning and

allowed entry and exit to any vehicle. Axt’s car was already through the gate

before the officers noticed it. Axt appeared to be lost and had a difficult time

backing and reversing his car to exit the area.

      The police officers approached the car while it was still in the jail parking

lot and directed Axt to stop. Officer Joseph Balsa noticed that Axt had red,

glassy eyes, was slurring his speech, and appeared disoriented. The officer also

detected a strong odor of alcohol coming from the vehicle. Axt admitted that

he had just come from a bar down the street. Officer Balsa and the other

officer detained Axt for field sobriety testing and called Officer Travis Kuhn to

administer the tests.    Officer Kuhn determined that Axt was intoxicated,

arrested Axt, and after warning Axt of the consequences of refusing a breath




                                        2
test, requested that he provide a breath specimen.       Axt refused, and the

Department subsequently suspended his driver’s license.

      Axt requested an administrative hearing regarding the suspension. The

ALJ concluded that Axt was legally detained and issued an order upholding the

suspension of Axt’s driver’s license. Axt appealed the ALJ’s decision to the

trial court, complaining that the evidence did not support the ALJ’s conclusions

that the officers had reasonable suspicion to stop Axt’s vehicle and probable

cause to believe that Axt had operated a vehicle in a public place while

intoxicated. The trial court reversed the ALJ’s decision, holding that there was

neither reasonable suspicion nor probable cause. This appeal followed.

      Administrative license revocation cases are reviewed under the substantial

evidence standard of review. 1 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 action. 2 The court may not substitute its

judgment on the weight of the evidence for that of the ALJ and must uphold

the ALJ’s finding even if the evidence preponderates against it so long as

enough evidence suggests the ALJ’s determination was within the bounds of



      1
        Tex. Gov’t Code Ann. § 2001.174(2) (Vernon 2008); Mireles v. Tex.
Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999).
      2
      Mireles, 9 S.W.3d at 131; Tex. Dep’t of Pub. Safety v. Vasquez, 225
S.W.3d 47, 52 (Tex. App.—El Paso 2005, no pet.).

                                       3
reasonableness. 3 If there is evidence to support the ALJ’s findings, the ALJ’s

decision must be upheld. 4 Any evidentiary ambiguities should be resolved in

favor of the ALJ’s findings. 5 The burden for overturning an agency ruling is

formidable.6

      At a license suspension hearing, the Department bears the burden of

proving: (1) reasonable suspicion or probable cause existed to stop or arrest the

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

motor vehicle in a public place while intoxicated; (3) the person was placed

under arrest by the officer and subsequently asked to submit to a breath or

blood test; and (4) the person refused to submit to the breath or blood test. 7

There is no dispute in this case regarding the last two requirements.

Accordingly, I focus on whether substantial evidence supports the ALJ’s

conclusions that reasonable suspicion existed to stop Axt’s vehicle and that




      3
       Mireles, 9 S.W.3d at 131; Sw. Pub. Serv. Co. v. Pub. Util. Comm’n
of Tex., 962 S.W.2d 207, 215 (Tex. App.—Austin 1998, pet. denied).
      4
      Tex. Dep’t of Pub. Safety v. Stacy, 954 S.W.2d 80, 83 (Tex.
App.—San Antonio 1997, no writ).
      5
      Tex. Dep’t of Pub. Safety v. Pruitt, 75 S.W.3d 634, 639 (Tex.
App.—San Antonio 2002, no pet.).
      6
      Tex. Dep’t of Pub. Safety v. Pucek, 22 S.W.3d 63, 67 (Tex.
App.—Corpus Christi 2000, no pet.).
      7
           Tex. Transp. Code Ann. § 724.042 (Vernon Supp. 2008).

                                       4
probable cause existed to believe that Axt was operating a motor vehicle in a

public place while intoxicated.

      The Department argues in its first issue that the officers had reasonable

suspicion to stop Axt because they reasonably believed Axt may have been

committing the offense of criminal trespass when he entered the restricted

parking lot. 8 Axt asserts, and the majority holds, that there was no reasonable

suspicion for the stop because the Department did not offer evidence to support

every element of criminal trespass. I agree with the Department.

      The Department is not required to show an offense was actually

committed or to prove every element of a specific offense to establish

reasonable suspicion, but only that the officer reasonably believed a crime was

in progress. 9 To justify an investigative stop, the officer must have specific and

articulable facts from which he can reasonably surmise that the detained person

may be associated with a crime. 10 In other words, the officer must reasonably



      8
         A person commits criminal trespass if he enters or remains on property
or in a building of another without effective consent and he had notice that the
entry was forbidden or he received notice to depart but failed to do so. Tex.
Penal Code Ann. § 30.05 (Vernon Supp. 2008).
      9
      Tex. Dep’t of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex.
App.—Dallas 2001, no pet.); Martinez v. State, 29 S.W.3d 609, 611–12 (Tex.
App.—Houston [1st Dist.] 2000, pet. ref’d).
      10
        Davis v. State, 829 S.W.2d 218, 219 (Tex. Crim. App. 1992) (op.
on reh’g).

                                        5
suspect that (1) some activity out of the ordinary is occurring or has occurred,

(2) the detained person is connected with the unusual activity, and (3) the

activity is related to a crime. 11   Circumstances which raise a suspicion that

illegal conduct is taking place need not themselves be criminal; they only need

to include facts which render the likelihood of criminal conduct greater than it

would be otherwise. 12

      After reviewing the administrative record, I believe that substantial

evidence supports the ALJ’s reasonable suspicion holding. Two police officers

observed Axt driving a motor vehicle in a restricted jail parking lot at around

2:30 a.m. Although the gate to the parking lot was malfunctioning and allowed

entry and exit to any vehicle, the parking lot was marked with signs declaring

the area to be for authorized personnel only. Axt’s late-night presence in a jail

parking lot, where signs warned that the area was closed to the public,

warranted the officers’ suspicion that Axt was criminally trespassing. 13       I

would, therefore, sustain the Department’s first issue.




      11
            Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994).
      12
         Reyes v. State, 899 S.W.2d 319, 324 (Tex. App.—Houston [14th
Dist.] 1995, pet. ref’d) (citing Crockett v. State, 803 S.W.2d 308, 311 (Tex.
Crim. App. 1991)).
      13
        See Rue v. State, 958 S.W.2d 915, 917–18 (Tex. App.—Houston
[14th Dist.] 1997, no pet.).

                                         6
      In its second issue, which the majority does not reach because of its

disposition of the Department’s first issue, the Department argues that

substantial evidence supports the ALJ’s finding that Officer Kuhn had probable

cause to believe that Axt was driving while intoxicated in a public place. Axt

does not dispute that he was driving while intoxicated. Rather, Axt contests

the ALJ’s determination that probable cause existed to believe Axt was driving

while intoxicated in a public place because, he argues, (1) the jail parking lot

was not a public place and (2) neither officer saw him driving before he entered

the jail parking lot.

      Under section 724.042 of the Texas Transportation Code, in a driver’s

license suspension hearing, the ALJ must determine “whether probable cause

existed to believe . . . [the license holder] was operating a motor vehicle in a

public place while intoxicated.” 14 The Department did not have to prove that

Axt was in fact driving while intoxicated in a public place, but only that there

was probable cause to believe that he had been driving in a public place while

intoxicated. 15    Probable cause exists where the police have reasonably

trustworthy information sufficient to warrant a reasonable person to believe a




      14
            Tex. Transp. Code Ann. § 724.042(2)(A).
      15
            See id.

                                       7
particular person has committed or is committing an offense. 16 Probable cause

deals with probabilities and requires more than mere suspicion, but far less

evidence than that needed to support a conviction or even that needed to

support a finding by a preponderance of the evidence. 17

      Officer Kuhn’s report and probable cause statement indicates that (1)

upon his arrival at the jail parking lot, Officer Kuhn was informed that Axt

admitted that he had just come from a bar down the street, (2) Officer Kuhn

immediately noticed that Axt had slurred speech, trouble balancing, and an odor

of an alcoholic beverage coming from his breath and person, (3) Officer Kuhn

administered Standardized Field Sobriety Tests including the Horizontal Gaze

Nystagmus test, which showed five out of six clues of intoxication, the Walk

and Turn test, which demonstrated four out of eight clues of intoxication, and

the One Leg Stand, which showed three out of four clues of intoxication, and

(4) during the field sobriety tests, Officer Kuhn observed that Axt had difficulty

balancing and repeatedly failed to follow instructions. Officer Kuhn reported

that he had probable cause to arrest or detain Axt because of Axt’s “slurred

speech, odor of alcoholic beverage emitted from breath and person, [and]




      16
            Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).
      17
            Id.

                                        8
difficulty balancing,” as well as the results of the sobriety tests. In addition,

Officer Balsa observed that Axt had red, glassy eyes.

      Based on this record, I would hold that substantial evidence supports the

ALJ’s conclusion that the officers had probable cause to believe Axt was

operating a motor vehicle while intoxicated on a public road. While the officers

did not specifically observe Axt driving on the public road before he entered the

jail parking lot, they could have reasonably inferred that Axt became intoxicated

at the bar and then drove to the jail parking lot using public streets. 18 There

was no indication of any alcohol in the car, and Axt admitted to the officers on

the scene that he had just come from a bar down the street. Thus, the ALJ did

not err in holding that the officers had probable cause to believe that Axt had

been driving in a public place while intoxicated. 19 I would, therefore, sustain

the Department’s second issue. 20




      18
       See Dep’t of Pub. Safety v. Hirschman, 169 S.W.3d 331, 340 (Tex.
App.—Waco 2005, pet. denied); Stagg v. Tex. Dep’t of Pub. Safety, 81
S.W.3d 441, 444 (Tex. App.—Austin 2002, no pet.).
      19
         See Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App.), cert.
denied, 510 U.S. 837 (1993) (“In determining whether probable cause existed
for the arrest, we examine the cumulative information known to all the officers
who cooperated in the arrest.”) (citing Woodward v. State, 668 S.W.2d 337,
344 (Tex. Crim. App. 1982), cert. denied, 469 U.S. 1181 (1985)).
      20
        Because of my disposition of the Department’s first two issues, I
would not need to reach its third issue. See Tex. R. App. P. 47.1.

                                       9
      Accordingly, I would reverse the trial court’s judgment and render

judgment reinstating the ALJ’s order authorizing the Department to suspend

Axt’s driver’s license.




                                             JOHN CAYCE
                                             CHIEF JUSTICE

DELIVERED: June 25, 2009




                                   10
