      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-00-00038-CV



                                Kristoffer Tate Paulson, Appellant

                                                   v.

                          Texas Department of Public Safety, Appellee




             FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
            NO. 248,410, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING




                Kristoffer Tate Paulson appeals from the order of the county court at law that affirmed

an administrative law judge’s order suspending Paulson’s driver’s license for ninety days because of

his refusal to give a breath specimen following his arrest for driving while intoxicated. Tex. Transp.

Code Ann. §§ 724.031-.035 (West 1999 & Supp. 2000) (Transp. Code). We will affirm the trial

court judgment.


                               Factual and Procedural Background

                On September 19, 1999, Officer Walker of the Austin Police Department observed

a 1991 Toyota Tercel on Research Boulevard. According to his report, Walker observed the Tercel

drift three times from its lane two feet into the adjoining lane and then drift back across its lane onto

the far lane line of Research Boulevard. After Walker stopped the Tercel, Officer Hernandez, also

with the Austin Police Department, administered field sobriety tests to the driver. Hernandez noted
several signs of intoxication and asked Paulson to submit to a breath alcohol concentration test.

Paulson refused, resulting in a ninety-day suspension of his driver’s license.

               Paulson requested a hearing to contest the suspension of his driver’s license. Transp.

Code § 724.041. The administrative law judge (ALJ) sustained the suspension. Paulson appealed

to the county court at law, which affirmed the administrative decision. Transp. Code § 524.041. He

now appeals to this Court. In one issue presented, Paulson asks whether there is substantial evidence

in the record establishing that there was reasonable suspicion or probable cause to stop his vehicle.


                                             Discussion

               Courts review administrative license suspensions under the substantial evidence

standard. Mireles v. Texas Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). A reviewing court

reverses an ALJ’s decision only if substantial rights of the appellant 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 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. Monroe, 983 S.W.2d 52, 54-55 (Tex. App.—Houston

[14th Dist.] 1998, no pet.); Texas Dep’t of Pub. Safety v. Latimer, 939 S.W.2d 240, 244 (Tex.

App.—Austin 1997, no writ). A court applying the substantial evidence standard of review may not

substitute its judgment for that of the agency; the issue is 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; City of El Paso v. Public Util. Comm’n, 883 S.W.2d 179, 185 (Tex.

1994). Substantial evidence only requires more than a mere scintilla of evidence. See Mireles, 9

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S.W.3d at 131; Railroad Comm’n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792-93 (Tex.

1995). The reviewing court upholds the administrative order on any legal theory supported by the

evidence. Texas Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452-53

(Tex. 1984); Public Util. Comm’n v. Southwestern Bell Tel. Co., 960 S.W.2d 116, 121 (Tex.

App.—Austin 1997, no pet.).

               Paulson contends that Walker’s observations did not constitute reasonable suspicion

for his temporary detention because those observations do not constitute a traffic offense. If the facts

established are undisputed, the question whether they constitute reasonable suspicion is reviewed de

novo. See Guzman v. State, 955 S.W.2d 85, 87-88 (Tex. Crim. App. 1997); Texas Dep’t of Pub.

Safety v. Bartow, 994 S.W.2d 329, 330 (Tex. App.—Austin 1999, no pet.). We determine whether

reasonable suspicion exists from the totality of the circumstances. Woods v. State, 956 S.W.2d 33,

38 (Tex. Crim. App. 1997). A temporary detention is justified when an officer has specific articulable

facts, which 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. There is no

requirement that the conduct violate a particular statute in order to give rise to reasonable suspicion.

Gajewski v. State, 944 S.W.2d 450, 452 (Tex. App.—Houston [14th Dist.] 1997, no pet.).

                Paulson contends that the record contains no evidence that he committed a traffic

offense because, in order to commit the only possible relevant offense, his lane change had to have

been made in an unsafe fashion. Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.—Austin 1998,

pet. ref’d). In Hernandez, the police officer observed only a single instance in which the driver

crossed over the white line adjoining two lanes of traffic flowing in the same direction. The only



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reason the officer gave for stopping the driver was a traffic offense, failure to maintain a single lane.

Id. at 868-69. This Court first concluded that the facts available to the officer did not, considering

the totality of the circumstances, give rise to a reasonable suspicion that appellant was driving while

intoxicated. Id. at 870. We then discussed the requirement in section 545.060 of the Transportation

Code that a driver not move from a single marked lane unless that movement can be made with

safety. Id. at 871. We concluded that, in order to constitute an offense, both aspects of the statute

must be met: the vehicle must fail to stay within the lane, and the movement from the lane must be

unsafe. Id. This Court held that the officer’s observations did not support a detention for a traffic

offense. Id. 871-72.

                In this case, the facts show more than a single drift over the line between lanes. The

evidence showed vehicle movement crossing from the leftmost side of the lane all the way back over

to the far right side of the lane, crossing onto the shoulder. The evidence showed this move was

repeated three times, i.e., the vehicle was weaving repeatedly. This movement supplied reasonable

suspicion for the officer to conclude that Paulson was driving while intoxicated or that some activity

out of the ordinary was occurring, so as to justify the stop of his vehicle. See Texas Dep’t of Pub.

Safety v. Nordin, 971 S.W.2d 90, 94 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (ALJ correctly

held that officer had reasonable suspicion to make stop based on observation that driver crossed over

shoulder stripe and was weaving within his traveling lane.); Davis v. State, 923 S.W.2d 781, 784, 788

(Tex. App.—Beaumont 1996) (officers saw defendant weave “line to line” multiple times, suspected

he was intoxicated), rev’d on other grounds, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997). Under




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the facts in this case, it was not necessary to show that the driver committed a particular traffic

offense to justify the officer’s stop. See Gajewski, 944 S.W.2d at 452.


                                            Conclusion

               The facts in this case gave rise to a reasonable suspicion on Walker’s part that Paulson

was driving while intoxicated, authorizing an investigative stop. Accordingly, we overrule Paulson’s

single point of error and affirm the trial court judgment.




                                               Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Kidd and B. A. Smith

Affirmed

Filed: September 21, 2000

Do Not Publish




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