                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00020-CV

STEVEN FRANK BARNES                                                APPELLANT

                                        V.

TEXAS DEPARTMENT OF PUBLIC                                           APPELLEE
SAFETY


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          FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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      In one point, appellant Steven Frank Barnes appeals the trial court’s order

affirming an administrative law judge’s (ALJ’s) decision that suspended his

driver’s license for 180 days. We affirm.




      1
       See Tex. R. App. P. 47.4.
                               Background Facts

      According to written reports that the ALJ admitted without objection, one

early morning in August 2012, Officer Matthew Bender was traveling on an

interstate highway when he saw appellant driving in the center lane while going

forty-three miles per hour in a posted sixty miles-per-hour zone.        Appellant

increased his speed to fifty-eight miles per hour, decreased his speed again, and

swerved within “the center lane and slightly . . . into the left and right lanes”

multiple times. Officer Bender pulled appellant over.

      Upon getting out of his car, appellant sweated heavily, smelled like alcohol,

and gave evasive answers to Officer Bender’s questions. Appellant refused to

perform standardized field sobriety tests or to provide a sample of his breath or

blood for testing, despite being warned that his driver’s license could be

suspended for refusing to do so.

      After a hearing that appellant requested, the ALJ issued a written decision

suspending appellant’s driving privileges for 180 days. 2 In the decision, the ALJ

found that reasonable suspicion had existed for Officer Bender’s stop of

appellant’s car and that after being arrested, appellant had refused to provide a

specimen of his breath or blood.




      2
       See Tex. Transp. Code Ann. §§ 724.035(a)(1), .041–.043 (West 2011).

                                        2
      In appealing the ALJ’s decision to the trial court, 3 appellant argued that

Officer Bender had not had reasonable suspicion to stop appellant’s car based

on his fluctuating speed and his weaving inside and outside his traffic lane.

Appellant argued that the Department of Public Safety (the Department) had not

proved a transportation code violation or that Officer Bender had “believed [that

appellant] was intoxicated at the point in time he pulled him over.” Appellant also

contended,

             I know we’d have a different case altogether had the
      Department called the police officer and [the officer] said [“]I
      suspected that he was intoxicated so I pulled him over.[”] I know it
      would have been different if [the officer] had put that in his
      report. . . . I think the problem here is that [he did] not.

      After listening to appellant’s argument and the Department’s response, the

trial court affirmed the ALJ’s decision. Appellant brought this appeal. 4

                              Reasonable Suspicion

      In this court, as in the trial court, appellant contends only that Officer

Bender did not have reasonable suspicion to justify stopping appellant while

appellant was driving.

      If a driver is arrested and the police officer making the arrest has a

reasonable basis to believe that the driver is intoxicated, specimens of the


      3
       See id. §§ 524.041(a), .043(a) (West 2013).
      4
       See Tex. Dep’t of Pub. Safety v. Barlow, 48 S.W.3d 174, 176 (Tex. 2001)
(holding that courts of appeals have jurisdiction from appeals of county courts’
decisions in driver’s license suspension cases).

                                         3
driver’s breath or blood may be taken.           See Tex. Transp. Code Ann.

§ 724.012(a)(1) (West 2011). If the driver refuses to submit to the taking of a

specimen, the Department must suspend the driver’s license to operate a motor

vehicle on a public highway for 180 days. Id. § 724.035(a)(1). If the driver’s

license is suspended, the driver may request a hearing on the suspension. Id.

§ 724.041(a); Tex. Dep’t of Pub. Safety v. Riley, No. 02-07-00417-CV, 2008 WL

3185690, at *2 (Tex. App.—Fort Worth Feb. 7, 2008, no pet.) (mem. op.). At the

hearing, the Department must prove that, among other facts, reasonable

suspicion or probable cause existed to stop or arrest the driver. Tex. Transp.

Code Ann. § 724.042(1); Tex. Dep’t of Pub. Safety v. Schleisner, 343 S.W.3d

292, 295 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

      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.
      Under this standard, the reviewing court cannot replace the ALJ’s
      judgment with its own. If the ALJ’s decision is supported by more
      than a scintilla of evidence, that decision must be upheld. 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.

             The court of appeals reviews the trial court’s substantial
      evidence review de novo. 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. 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. If the evidence is
      conflicting, the court must defer to the ALJ’s factual findings.

                                        4
Tex. Dep’t of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 878 (Tex. App.—Fort

Worth 2009, no pet.) (en banc op. on reh’g) (citations omitted); see Tex. Dep’t of

Pub. Safety v. Axt, 292 S.W.3d 736, 738–39 (Tex. App.—Fort Worth 2009, no

pet.) (discussing the substantial evidence standard that county courts must use

to review decisions of ALJs); see also Tex. Dep’t of Pub. Safety v. Williams, 303

S.W.3d 356, 358 (Tex. App.—El Paso 2009, no pet.) (“The burden for

overturning an agency ruling is formidable.”).

      As we stated in Gilfeather,

             An officer conducts a lawful stop when he has reasonable
      suspicion to believe that an individual is violating the law.
      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.
      Under this standard, we look to whether an objective basis for the
      stop existed while considering the totality of the circumstances.

293 S.W.3d at 879 (citations omitted); see Axt, 292 S.W.3d at 739 (noting that

the reasonable suspicion standard “disregards any subjective intent of the officer

making the stop and looks solely to whether an objective basis for the stop

exists”); see also Fernandez v. State, 306 S.W.3d 354, 357 (Tex. App.—Fort

Worth 2010, no pet.) (explaining that the “fact that the officer does not have the

state of mind which is hypothecated by the reasons which provide the legal

justification for the officer’s action does not invalidate the action taken as long as

the circumstances, viewed objectively, justify that action”); State v. Patterson,

291 S.W.3d 121, 123 (Tex. App.—Amarillo 2009, no pet.) (“[T]he subjective


                                          5
reasons uttered by the officer to legitimize the stop have no bearing on the

outcome if the totality of the circumstances nonetheless would lead a police

officer to reasonably suspect that crime is afoot.”).

      The determinative question that the trial court resolved and that we must

answer is simply put: Did appellant’s fluctuating speed and his swerving within

and outside of his lane multiple times produce an objectively reasonable basis for

a belief that appellant was driving while intoxicated and therefore authorize

Officer Bender’s stop of appellant? 5 The answer, according to decisions from our

court and other courts, is yes.

      For example, in State v. Arend, the driver, early in the morning, had slowly

weaved within his lane several times over the course of approximately a minute

and had come within about a foot of another vehicle but had not fluctuated his

speed. No. 02-03-00336-CR, 2005 WL 994710, at *1, 4 (Tex. App.—Fort Worth

Apr. 28, 2005, pet. ref’d) (mem. op., not designated for publication).        We

concluded that these facts provided reasonable suspicion of driving while

intoxicated. Id. at *4–5. Similarly, in McQuarters v. State, the driver, shortly

before midnight, had traveled at a slow rate of speed with no cars in the vicinity


      5
       Appellant argues, in part, that he did not commit an offense under the
transportation code. The Department does not rely on a violation of the
transportation code to justify Officer Bender’s decision to stop appellant; the
Department argues only that Officer Bender had reasonable suspicion to believe
that appellant was driving while intoxicated. Because we agree with the
Department, we decline to address whether the evidence produced objectively
reasonable suspicion of a transportation code violation.

                                          6
and had “cross[ed] the left lane stripe nearest to the center median twice.” 58

S.W.3d 250, 253 (Tex. App.—Fort Worth 2001, pet. ref’d). We held that these

facts justified a stop based on reasonable suspicion of driving while intoxicated.

Id. at 255; see also Walker v. State, No. 02-04-00336-CR, 2006 WL 349704, at

*1, 5 (Tex. App.—Fort Worth Feb. 16, 2006, no pet.) (mem. op., not designated

for publication) (holding that reasonable suspicion of driving while intoxicated

existed from a driver’s crossing the white shoulder line, swerving across yellow

center lines, and swerving within his own lane).         Other courts have found

reasonable suspicion for driving while intoxicated under facts similar to those in

Arend and McQuarters. See, e.g., State v. Castillo, No. 13-11-00083-CR, 2012

WL 506533, at *1–3 (Tex. App.—Corpus Christi Feb. 16, 2012, pet. ref’d) (mem.

op., not designated for publication); Held v. State, 948 S.W.2d 45, 47, 51 (Tex.

App.—Houston [14th Dist.] 1997, pet. ref’d); Davis v. State, 923 S.W.2d 781,

784, 788 (Tex. App.—Beaumont 1996) (op. on reh’g), rev’d on other grounds,

947 S.W.2d 240 (Tex. Crim. App. 1997); Raffaelli v. State, 881 S.W.2d 714, 716

(Tex. App.—Texarkana 1994, pet. ref’d); Townsend v. State, 813 S.W.2d 181,

185 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d).

      Based on the cases cited above, we hold that the documents admitted in

the administrative hearing provided the ALJ with a reasonable basis to determine

that Officer Bender had an objectively reasonable basis for stopping appellant,

even if Officer Bender did not express in his reports that he subjectively stopped



                                        7
appellant based on a suspicion of driving while intoxicated. 6 See Fernandez, 306

S.W.3d at 357; Gilfeather, 293 S.W.3d at 878–79; see also State v. Duran, 396

S.W.3d 563, 570 & n.16 (Tex. Crim. App. 2013).          Thus, we hold that the

Department adequately demonstrated that Officer Bender’s stop of appellant’s

car was based on reasonable suspicion of criminal activity, and we overrule

appellant’s only issue. See Tex. Transp. Code Ann. § 724.042(1); Gilfeather,

293 S.W.3d at 879.

                                  Conclusion

      Having overruled appellant’s only issue, we affirm the trial court’s

judgment.



                                            TERRIE LIVINGSTON
                                            CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DELIVERED: June 27, 2013




      6
       Appellant argues that there is no evidence that Officer Bender subjectively
believed that appellant’s movements indicated possible intoxication.

                                        8
