      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-00-00553-CV



                         Texas Department of Public Safety, Appellant

                                                 v.

                                 Penn Alfonso Jenkins, Appellee



             FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY
           NO. 6302-C, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING



               The Texas Department of Public Safety (“DPS”) appeals the county court at law’s

reversal of a DPS administrative order authorizing DPS to suspend the driver’s license of Penn

Alfonso Jenkins for ninety days when he refused to provide a breath specimen following his arrest for

driving while intoxicated. See Tex. Transp. Code Ann. §§ 724.031-.035 (West 1999 & Supp. 2001).

We will reverse the trial court’s judgment.


                     FACTUAL AND PROCEDURAL BACKGROUND

               On October 29, 1999, DPS Trooper A.J. Wolpman stopped appellee Penn Alfonso

Jenkins (“appellee” or “Jenkins”) on suspicion of driving while intoxicated (“DWI”) after Wolpman

saw Jenkins weave within his lane of traffic on IH-35 and repeatedly vary his speed from

approximately forty miles per hour to sixty miles per hour in a sixty-five mile-per-hour speed zone.

Wolpman stopped Jenkins and administered three field sobriety tests. Based on Wolpman’s

observations of Jenkins and Jenkins’s failure to successfully perform the three tests, Wolpman
arrested Jenkins for DWI and requested a breath or blood specimen for an intoxication test. Jenkins

refused, resulting in the ninety-day suspension of his driver’s license. See id. § 724.035(a)(1).

               Jenkins requested a hearing to contest the driver’s license suspension. See id.

§ 724.041. Wolpman did not appear to testify at the hearing, but DPS presented two exhibits—a

sworn report by Wolpman and a “supplemental probable cause affidavit.”1 On the sworn report,

Wolpman stated that his reasonable suspicion to stop Jenkins was based on his observations of

Jenkins “[w]eaving in outside lane of traffic” and Jenkins’s vehicle “[s]lowing down from 60 MPH

to 40 MPH in a 65 MPH zone. Subject did this several times.” The supplemental probable cause

affidavit further provides:


       Trooper Wolpman observed the driver, Mr. Jenkins, weaving in his lane back and
       forth and driving on the solid white line once on right side of roadway. The vehicle
       was slowing down and speeding up several times. The vehicle sped up to maximum
       speed of 60 mph and then would step on brakes and slow down to 40 to 45 mph and
       then speed up again to about 55 - 60 mph and then step on brakes and slow down
       again. There were no other vehicles in front of Mr. Jenkins’ vehicle causing him to
       drive erratically. Due to my 15 years experience in


The quoted statement ends abruptly in mid-sentence due to space constraints on the affidavit form.

Two sections lower on the form, Wolpman typed the following phrase, preceded by an asterisk:

“dealing with DWI drivers, this type of erratic driving indicated to me that the driver may be

intoxicated.” Jenkins objected to the consideration of this last phrase in the reasonable-suspicion


  1
     During the administrative hearing, counsel for DPS acknowledged that the reason she requested
a supplemental probable cause affidavit was that additional details regarding the reasonable suspicion
to stop was “what needed to be contained here.” She further explained that initially, Wolpman was
expected to appear at the hearing and testify in person. However, counsel for DPS determined that
Wolpman’s presence at the hearing was unnecessary and any omissions in his sworn report could be
cured by a supplemental probable cause affidavit.

                                                  2
analysis based on its nonresponsiveness to the question posed in that section of the form.2 The phrase

appeared underneath the inquiry: “b. Sobriety tasks requested and performance obtained (explain):.”

Counsel for DPS explained that the phrase was part of the officer’s articulated reasonable suspicion

for the detention, but the phrase did not fit in the space provided above for the officer’s reasonable

suspicion observations. However, the administrative law judge (“ALJ”) agreed with Jenkins’s

argument that the written affidavit must speak for itself and that it would be impermissible to infer

that the phrase was intended to be a continuation of the officer’s reasonable suspicion observations

without some indication that that is what was intended. He thus sustained Jenkins’s objection and

struck the phrase. Nevertheless, the ALJ sustained DPS’s suspension of Jenkins’s driver’s license.

               On appeal to the county court at law, Jenkins argued that without the excised phrase,

DPS could not prove reasonable suspicion for the stop. The trial court agreed and reversed the

administrative order. DPS did not challenge the ALJ’s decision to strike the phrase at the trial court,

nor does it raise the issue before this Court.


                                           DISCUSSION

               By its first issue, DPS challenges the trial court’s reversal of “the administrative

finding that Jenkins’ driving constituted reasonable suspicion to initiate an investigative detention.”

We determine whether reasonable suspicion exists from the totality of the circumstances. Woods v.



   2
     Initially, Jenkins objected to the admission of the entire supplemental probable cause affidavit,
arguing that (1) the affidavit is not a “sworn report” and therefore could not be allowed into evidence
under the public record exception to the hearsay rule, (2) there was no evidence that the affidavit was
created on a DPS approved form, and (3) DPS waited ninety-two days before filing the supplemental
report even though the Transportation Code advises that an officer file a sworn report within five
days following an arrest. The administrative law judge overruled these objections.

                                                  3
State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). An officer may stop and briefly detain a citizen

for investigative purposes if the officer has specific articulable facts that, in light of his experience and

personal knowledge taken together with rational inferences from those facts, lead him to conclude

that the person detained actually is, has been, or soon will be engaged in criminal activity. Id.; Garza

v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989). Thus, the articulable facts relied on by an

officer must support a reasonable suspicion that (1) activity out of the ordinary is occurring or has

occurred, (2) the detainee is connected to the unusual activity, and (3) the unusual activity is related

to crime. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) (quoting Garza, 771 S.W.2d

at 558); Woods v. State, 970 S.W.2d 770, 773 (Tex. App.—Austin 1998, pet. ref’d). The conduct

need not violate a particular statute in order to give rise to reasonable suspicion; however, the officer

must point to something that would lead a reasonable person to believe that the detainee was engaged

in a criminal act.     Texas Dep’t of Pub. Safety v. Bartow, 994 S.W.2d 329, 330-31 (Tex.

App.—Austin 1999, no pet.); Gajewski v. State, 944 S.W.2d 450, 452 (Tex. App.—Houston [14th

Dist.] 1997, no pet.). Suspicious behavior or a “hunch” that something out of the ordinary is

occurring is insufficient. Davis, 947 S.W.2d at 244 (quoting Garza, 771 S.W.2d at 558); Woods, 970

S.W.2d at 773.

                 In this case, Wolpman provided specific articulable facts indicating that some activity

out of the ordinary was occurring—Jenkins was weaving within his lane of traffic and had repeatedly

accelerated and decelerated while driving.3 Wolpman also sufficiently connected Jenkins to this

unusual activity. And Wolpman attempted to articulate his logical inference that based on his


   3
    Jenkins did not argue to the trial court that the articulated facts were insufficient to support the
reasonable suspicion determination, nor does he do so on appeal to this Court.

                                                     4
experience, personal knowledge, and the specific articulated facts, the observed unusual activity was

related to a crime. However, the ALJ struck a significant phrase completing Wolpman’s documentary

testimony.

               Jenkins argued before the ALJ and the county court that without the stricken phrase,

there is no evidence in the record to show how the observed activity “created suspicion in

[Wolpman’s] mind, nor what the suspicion was indicative of.” In other words, Jenkins argues that

without the stricken phrase, DPS has failed to establish that Wolpman had a reasonable suspicion that

the observed activity was related to the commission of a crime, i.e., DWI. We disagree.

               Courts review administrative license suspensions under the substantial evidence

standard, reversing an ALJ’s decision only if substantial rights of the aggrieved party have been

prejudiced and the ALJ’s findings are not reasonably supported by substantial evidence considering

the reliable and probative evidence in the record as a whole. Tex. Gov’t Code Ann. § 2001.174(2)(E)

(West 2000); see Mireles v. Texas Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999)

(administrative action must be affirmed if record demonstrates reasonable basis for decision);

Blankenbeker v. Texas Dep’t of Pub. Safety, 990 S.W.2d 813, 814 (Tex. App.—Austin 1999, pet.

denied); Texas Dep’t of Pub. Safety v. Latimer, 939 S.W.2d 240, 244 (Tex. App.—Austin 1997, no

writ). In support of his no-evidence argument, Jenkins relies exclusively on the one paragraph in both

the sworn report and the supplemental affidavit in which Wolpman articulated the facts that gave rise

to his reasonable suspicion to stop and make contact. Jenkins suggests that the reasonable suspicion

paragraph in each of these documents is the only evidence that the ALJ could have considered in

determining whether all the elements of reasonable suspicion were present in Wolpman’s

documentary testimony.

                                                  5
                What Jenkins has failed to acknowledge is that in determining whether reasonable

suspicion existed, the ALJ was not limited to the “reasonable suspicion” paragraphs in the sworn

report and supplemental affidavit. To the contrary, the ALJ was entitled to review all of the evidence

presented; this includes the entire sworn report and supplemental affidavit, including the pre-printed

language on the form.

                The sworn report and the supplemental affidavit are pre-printed, fill-in-the-blank

forms, which begin with the following language: “I had probable cause to believe and do believe that

Penn Alfonso Jenkins was driving or in actual physical control of a motor vehicle in a public place

in this state while intoxicated. Facts in support of this belief are: . . . .” The preliminary statement

is followed by several sub-categories, including the officer’s “[r]easonable suspicion to stop and make

contact” and “probable cause for arrest.” In the space provided for the officer’s reasonable suspicion,

Wolpman detailed his observations of Jenkins’s erratic driving conduct. See supra p. 2. The

inclusion of Wolpman’s reasonable suspicion observations on the pre-printed form for probable cause

of DWI suggests that Wolpman’s reasonable suspicion was related to the crime of DWI.4 Because

the basis for Wolpman’s reasonable suspicion was included on the same form used to show probable

cause of DWI and because it followed Wolpman’s assertion of probable cause to believe that Jenkins

was driving while intoxicated, the sworn report and the supplemental affidavit provide some evidence

from which the ALJ could have concluded that Wolpman’s observations of Jenkins’s erratic driving




   4
     We note that DPS never asserted any other basis for Wolpman’s reasonable suspicion, such as
the commission of a traffic offense, and Wolpman included no other basis for his reasonable suspicion
on either the sworn report or the supplemental affidavit.

                                                   6
conduct led Wolpman to infer that Jenkins had been driving while intoxicated.5 We therefore sustain

DPS’s first issue presented.

               By one cross-point, Jenkins challenges the jurisdiction of this Court to consider this

appeal. The Texas Supreme Court has recently addressed this issue and concluded that courts of

appeals have jurisdiction to consider appeals of driver’s license suspension hearings. State Dep’t of

Pub. Safety v. Barlow, 48 S.W.3d 174, 176 (Tex. 2001). Accordingly, Jenkins’s cross-point is

overruled.


                                         CONCLUSION

               We sustain DPS’s first issue presented.         Jenkins’s cross-point is overruled.

Accordingly, we reverse the judgment of the county court at law and render judgment reinstating the

ALJ’s order of suspension.




                                              Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Puryear

Reversed and Rendered

Filed: October 18, 2001

Publish


  5
    We note that where DPS intends to rely exclusively on documentary evidence, it should proceed
with extreme caution, especially if an irregularity exists in that evidence.

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