      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00261-CV



                          Texas Department of Public Safety, Appellant

                                                   v.

                                     Micah McHugh, Appellee


             FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
         NO. C-1-CV-12-012483, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                             MEMORANDUM OPINION


                The Texas Department of Public Safety appeals the trial court’s judgment reversing

the administrative decision issued by the State Office of Administrative Hearings, which authorized

the Department to suspend appellee Micah McHugh’s driver’s license for 180 days based on his

refusal to provide a breath or blood specimen after his arrest for driving while intoxicated. See

Tex. Transp. Code § 724.035(a)(1). The Department contends that substantial evidence supports the

administrative law judge’s findings of fact that reasonable suspicion existed to stop McHugh and

probable cause existed to arrest him. The Department further argues that the trial court erred if it

reversed the administrative decision based on McHugh’s argument that a later blood test, which was

not introduced into evidence at the administrative hearing, showed that he was not above the per se

level of intoxication. For the reasons that follow, we will reverse the trial court’s judgment and render

judgment affirming the administrative decision.
                                         BACKGROUND

                McHugh refused to provide a breath or blood specimen for alcohol-concentration

analysis as required by the implied-consent statute related to arrests for driving while intoxicated.

He requested a contested-case hearing to challenge the administrative suspension of his driver’s

license. At the administrative hearing, the sworn report of Officer Jason Day (the police officer who

arrested McHugh) and the documents incorporated into the report were admitted into evidence

without objection. Officer Day also testified at the hearing.1

                According to the report and Officer Day’s testimony, at 12:04 a.m. on Sunday,

June 17, 2012, Officer Lynch of the Austin Police Department stopped McHugh for making a right

turn at a red light at an intersection posted as prohibiting right turns on red. After stopping McHugh,

Officer Lynch detected a strong odor of alcohol coming from McHugh. McHugh also admitted to

Officer Lynch that he might have had too much to drink. Officer Lynch called Officer Day to the

scene to investigate McHugh for driving while intoxicated.

                Officer Day also noticed a strong odor of alcohol coming from McHugh. McHugh

also exhibited other signs of intoxication, including bloodshot, glassy eyes, mumbled speech, and

a small amount of swaying. Officer Day administered field sobriety tests to McHugh. McHugh

exhibited six of six clues on the horizontal gaze nystagmus (HGN) test, which Officer Day testified

has an 88% correlation with intoxication. Officer Day further testified that his observations of McHugh

during this test “and the high correlation” were the overriding factors in his determination that

probable cause existed to arrest McHugh.


       1
           The only evidence admitted at the hearing was the report and Officer Day’s testimony.

                                                  2
               In addition, Officer Day testified that McHugh did not show the number of clues

needed to correlate with intoxication on two other field sobriety tests, the walk-and-turn and the

one-leg stand. He exhibited zero out of eight clues on the walk-and-turn, which requires two clues

to indicate that the person may be intoxicated. He exhibited one of four clues, swaying, on the one-

leg stand, which also requires two clues to indicate that the person may be intoxicated. Officer Day

also administered the modified Romberg balance test, and McHugh estimated 30 seconds as 42

seconds on that test. McHugh also estimated that the time was an hour different than it actually was.

McHugh would not answer how intoxicated he felt on a scale of one to ten because he said he did

not want to incriminate himself. According to Officer Day, McHugh’s demeanor indicated that he

was intoxicated. Consequently, Officer Day arrested McHugh for driving while intoxicated. After

providing the required statutory warnings, he requested both breath and blood specimens from

McHugh. McHugh refused to voluntarily provide specimens, and he signed the statutory-warning

(DIC-24) form documenting his refusal.

               At the administrative hearing, McHugh’s counsel asked Officer Day whether he would

“still stand by the fact that [Officer Day] thought [McHugh] was intoxicated” if counsel told him that

McHugh’s blood-test results were a 0.04. Officer Day acknowledged that he had “seen those results,”

but he stood by the fact that at the time of the arrest he thought McHugh was intoxicated. No blood-

test results were offered or admitted into evidence.

               After the hearing, the administrative law judge (ALJ) sustained the suspension of

McHugh’s license. McHugh appealed the decision to the county court at law. McHugh appealed

his license suspension on three grounds, contending (1) that there was not reasonable suspicion for



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the stop; (2) that there was not probable cause to believe he was driving while intoxicated; and (3) a

blood test showed that his blood alcohol concentration was less than the per se statutory limit for

intoxication. The county court at law reversed the administrative decision and ordered that McHugh’s

license not be suspended. This appeal by the Department followed.


                                   STATUTORY OVERVIEW

               Under the implied-consent statute, a person who is arrested for driving while

intoxicated is deemed to have consented to provide a breath or blood specimen for alcohol-

concentration analysis. Tex. Transp. Code § 724.011. Thus, when a peace officer arrests a person

and has reasonable grounds to believe that the person operated a motor vehicle in a public place

while intoxicated, the officer may request a specimen of the person’s breath or blood. Id.

§ 724.012(a)(1). If the person refuses to comply, the Department must suspend the person’s license

to operate a motor vehicle on a public highway for 180 days. Id. § 724.035(a)(1). A person whose

license is suspended for refusing to provide a specimen may request an administrative hearing. Id.

§ 724.041. At a 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:

               (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.



                                                  4
Id. § 724.042; see also Texas Dep’t of Pub. Safety v. Allocca, 301 S.W.3d 364, 367 (Tex.

App.—Austin 2009, pet. denied). Only the first two elements are contested in this case.


                                   STANDARD OF REVIEW

               We review administrative license-suspension cases under the substantial-evidence

standard. See Tex. Transp. Code §§ 724.047 (appeals under Chapter 724 are governed by Chapter

524), 524.002(b) (Chapter 2001 of Government Code applies to proceedings); Tex. Gov’t Code

§ 2001.174; see also Texas Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006)

(citing Mireles v. Texas Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999)). Whether substantial

evidence supports the administrative decision is a question of law, and on questions of law,

neither the trial court nor the ALJ is entitled to deference on appeal. Alford, 209 S.W.3d at 103.

Thus, we review de novo the trial court’s determination of whether substantial evidence supports

the administrative decision. See Texas Dep’t of Pub. Safety v. Lee, No. 03-11-00532-CV, 2012 WL

3793261, at *3 (Tex. App.—Austin Aug. 31, 2012, no pet.) (mem. op.); Texas Dep’t of Pub. Safety

v. Gonzales, 276 S.W.3d 88, 91 (Tex. App.—San Antonio 2008, no pet.).

               A reviewing court conducting a substantial-evidence review may not substitute its

judgment for the ALJ’s judgment “on the weight of the evidence on questions committed to agency

discretion.” Tex. Gov’t Code § 2001.174; Texas Health Facilities Comm’n v. Charter Med.-Dallas,

Inc., 665 S.W.2d 446, 452 (Tex. 1984). The ALJ’s findings in this regard are entitled to deference

on appeal. Alford, 209 S.W.3d at 103. To warrant reversal or remand of an agency decision, the

reviewing court must conclude that the appellant’s substantial rights have been prejudiced because

the administrative findings, inferences, conclusions, or decisions are:

                                                 5
       (A)     in violation of a constitutional or statutory provision;

       (B)     in excess of the agency’s statutory authority;

       (C)     made through unlawful procedure;

       (D)     affected by other error of law;

       (E)     not reasonably supported by substantial evidence considering the reliable
               and probative evidence in the record as a whole; or

       (F)     arbitrary or capricious or characterized by abuse of discretion or clearly
               unwarranted exercise of discretion.


Tex. Gov’t Code § 2001.174. The dispositive issue for the reviewing court is not whether the

agency’s decision was correct, but only whether some reasonable basis exists in the record for the

agency’s action. Mireles, 9 S.W.3d at 131. A reviewing court must presume that substantial evidence

supports the agency decision. Charter Med.-Dallas, 665 S.W.2d at 453. The burden is on the party

contesting the agency decision to prove otherwise. Id. We must affirm administrative findings in

contested cases if more than a scintilla of evidence supports them, and we may affirm the agency’s

decision “even if the evidence preponderates against it.” See Mireles, 9 S.W.3d at 131.


                                            ANALYSIS

               The Department challenges the trial court’s reversal of the administrative decision

in three issues. First, the Department contends that substantial evidence supports the ALJ’s finding

of fact that reasonable suspicion existed to stop McHugh because a police officer observed McHugh

operating his vehicle on a public roadway and turning right at a red light where prohibited. Second,

the Department contends that substantial evidence supports the ALJ’s finding of fact that probable



                                                  6
cause existed to arrest McHugh for operating a motor vehicle in a public place while intoxicated

because a police officer observed McHugh “to have an alcoholic beverage odor, impaired balance,

mumbled speech, bloodshot eyes, and 6 of 6 clues of intoxication during the horizontal gaze

nystagmus (HGN) test.” Finally, the Department contends that the only proper basis for the trial court

to reverse the administrative decision would be if it had concluded that there was not substantial

evidence supporting the ALJ’s findings that the Department had proved the four required elements

under Section 724.042 by a preponderance of the evidence. Thus, the Department asserts that the

trial court’s ruling was error to the extent it was based on McHugh’s equitable and statutory

arguments that a later blood test, which was not introduced into evidence at the administrative

hearing, showed that he was not above the per se level of intoxication.


Reasonable suspicion

                We first consider whether substantial evidence supports the ALJ’s finding of fact that

Officer Day had reasonable suspicion to stop McHugh. 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 an officer has specific and articulable

facts that, taken together with rational inferences from those facts, would lead the officer to reasonably

conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.

Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008). This standard is an objective one that

disregards any subjective intent of the officer making the stop and looks solely to whether an objective

basis for the stop exists. Ford, 158 S.W.3d at 492. We consider the totality of the circumstances

when making a reasonable-suspicion determination. Id. at 492-93.

                                                    7
                The burden is on the Department to demonstrate the reasonableness of the stop.

Texas Dep’t of Pub. Safety v. Chang, 994 S.W.2d 875, 877 (Tex. App.—Austin 1999, no pet.). If

the officer has a reasonable basis for suspecting a person has committed a traffic offense, the officer

may legally initiate a traffic stop. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993);

Chang, 994 S.W.2d at 877. The Department is not required to show that a traffic offense was actually

committed, but only that the officer reasonably believed a violation was in progress. Texas Dep’t

of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex. App.—Dallas 2001, no pet.).

                After reviewing the administrative record, we conclude that substantial evidence

supports the ALJ’s reasonable-suspicion determination. See Chang, 994 S.W.2d at 878 (concluding

that documentary evidence of traffic offense provided by officer’s affidavit and accompanying

documents satisfied substantial-evidence test to support reasonableness of stop). Here, Officer Lynch

had reasonable suspicion to stop and investigate McHugh because he made a right turn on a red light

at an intersection with a sign posted prohibiting such a turn, an offense authorizing a person’s arrest.

See Tex. Transp. Code §§ 541.304(1), 542.301(a), 543.001, 544.004. We sustain the Department’s

first issue.


Probable cause

                The Department asserts in its second issue that substantial evidence existed to support

the ALJ’s finding of fact that probable cause existed to arrest McHugh for operating a motor vehicle

in a public place while intoxicated. Probable cause exists when the police have reasonably trustworthy

information, considered as a whole, sufficient to warrant a reasonable person to believe that the

person arrested has committed or is committing an offense. Amador v. State, 275 S.W.3d 872, 878

                                                   8
(Tex. Crim. App. 2009). “Probable cause deals with probabilities.” Guzman v. State, 955 S.W.2d 85,

87 (Tex. Crim. App. 1997). It “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.” Hughes v. State, 24 S.W.3d 833, 838-39 (Tex. Crim. App. 2000); Lee, 2012 WL 3793261,

at *6. In other words, the Department need not prove that McHugh was in fact intoxicated while

driving, only that probable cause existed to believe that he was. See Lee, 2012 WL 3793261, at *6.

               In response, McHugh contends that there was no reasonable basis for the suspension

of his license “based on the evidence of intoxication in the record.” We understand McHugh’s

argument to assert that there was no probable cause to believe he was intoxicated because (1) the

results of the HGN test were unreliable, (2) he performed well on the walk-and-turn and one-leg-

stand tests, and (3) the Romberg balance test was not probative of his intoxication.2

               Substantial evidence supports the ALJ’s finding that probable cause existed to believe

that McHugh was driving while intoxicated. The term “intoxicated” means “not having the normal

use of mental or physical faculties” because of consuming alcohol (or other substances), or “having




       2
           As a preliminary matter, McHugh argues that the ALJ was required to find that McHugh
was intoxicated, citing Section 724.042(2). We disagree with that assertion. That subsection requires
only a finding of probable cause to believe the person was operating a motor vehicle in a public
place while intoxicated, not a finding of intoxication. Tex. Transp. Code § 724.042(2)(A). As stated
above, to prove probable cause, the Department did not need to prove beyond a reasonable doubt or
even by a preponderance of the evidence that McHugh was in fact driving while intoxicated. See
Hughes v. State, 24 S.W.3d 833, 838-39 (Tex. Crim. App. 2000). It only needed to establish that
the totality of the circumstances warranted the belief of a reasonable person that he was driving while
intoxicated. See Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). On appeal, as long
as more than a scintilla of evidence supports the ALJ’s finding that probable cause existed, we must
uphold the administrative decision. See Mireles v. Texas Dep’t of Pub. Safety, 9 S.W.3d 128, 131
(Tex. 1999).

                                                  9
an alcohol concentration of 0.08 or more.” Tex. Penal Code § 49.01(2)(A)-(B). Because McHugh

refused to provide a breath or blood specimen at the time of his arrest, the ALJ’s finding was

necessarily based on a determination that probable cause existed to believe that McHugh did not

have the normal use of his mental or physical faculties because he had been drinking alcohol.

               The evidence in the record includes Officer Day’s affidavit and testimony. McHugh

had committed a traffic violation, turning right on red despite a sign prohibiting such a turn, which

could indicate impaired mental faculties. Officer Day observed that a strong alcoholic beverage

odor was coming from McHugh and that McHugh had impaired balance, mumbled speech, and

bloodshot, glassy eyes. In addition, McHugh exhibited six out of six clues on the HGN test and

admitted that he might have had too much to drink. McHugh complains on appeal about the

reliability of the HGN test and the weight that the ALJ gave that test over the other tests performed.

In effect, McHugh asks this Court to substitute its judgment for the ALJ’s judgment “on the weight

of the evidence on questions committed to agency discretion,” which we cannot do. Tex. Gov’t

Code § 2001.174; Charter Med.-Dallas, 665 S.W.2d at 452; see also Sanchez v. Texas State Bd. of

Med. Exam’rs, 229 S.W.3d 498, 511 (Tex. App.—Austin 2007, no pet.) (explaining that agency

decides “meaning, weight, and credibility to assign conflicting evidence”). Officer Day’s affidavit

and testimony provide more than a scintilla of evidence supporting the probable-cause finding. We

sustain the Department’s second issue.

               In its third issue, the Department contends that the trial court erred to the extent it

reversed the ALJ’s decision based on equitable and statutory arguments related to McHugh’s




                                                 10
contention that a later blood test showed he was not intoxicated.3 On appeal, McHugh argues that

this blood-test result combined with evidence that he “passed the Standard Field Sobriety Test

Battery administered to him” means that no reasonable basis exists in the record for suspending

his license. Although Officer Day acknowledged at trial that he had seen results of a later blood

test, that blood test was never offered or admitted into evidence.4 Moreover, the only issues to be

considered at a hearing under Section 724.042 of the Transportation Code are (1) reasonable

suspicion for the stop or arrest, (2) probable cause to believe that the person was driving while

intoxicated, (3) the person’s arrest and the officer’s request that the person provide a specimen, and

(4) the person’s refusal to provide a specimen upon request. Ordinarily, suspension under Section

724.042 is not based on any consideration of the driver’s actual intoxication. See Texas Dep’t of Pub.

Safety v. Varme, 262 S.W.3d 34, 39-41 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (construing

Section 724.048 and determining that only acquittal of criminal charges arising from same arrest,



       3
         We note that on appeal McHugh has abandoned the statutory argument that the Department
was obligated to rescind the license suspension under Section 524.012 of the Transportation Code.
See Tex. Transp. Code § 524.012 (precluding license suspension when officer does not serve person
who submits to breath or blood test with notice of license suspension at time results of breath or
blood specimen are obtained, if analysis of specimen shows alcohol concentration below 0.08).
Accordingly, we need not address this argument. See Tex. R. App. P. 47.1.
       4
          McHugh attached as appendices to his brief a document entitled “Blood Alcohol Analysis
Report” that provides no information about when any examination was conducted and a motion to
dismiss a DWI charge against McHugh by the Travis County District Attorney. These documents
were never offered or admitted into evidence before the ALJ or the trial court. We cannot consider
these documents because they are not properly included in the appellate record. See Adams v. Reynolds
Tile & Flooring, Inc., 120 S.W.3d 417, 423 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“The
attachment of documents as exhibits or appendices to briefs does not constitute formal inclusion in
the record on appeal and, therefore [those documents] that are not part of our record cannot be
considered.”); see also Tex. R. App. P. 34.1 (appellate record consists of clerk’s record and
reporter’s record).

                                                 11
not mere dismissal of charges, precludes license suspension). We need not determine whether it

would have been appropriate for the ALJ to consider the results of a later blood test when analyzing

probable cause at the time of McHugh’s arrest because in this particular case the blood-test results

were not admitted as evidence. See Tex. R. App. P. 47.1 (appellate courts must hand down opinions

that are as brief as practicable but that address every issue raised and necessary to disposition of

appeals). Moreover, even if the blood-test results had been admitted into evidence, at most this would

have been conflicting evidence to be weighed by the ALJ. Resolution of factual conflicts is the

province of the agency, and we may not set aside an agency decision based on a conflict in the

evidence. See Firemen’s & Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662 S.W.2d 953, 956

(Tex. 1984). Thus, the trial court erred to the extent it reweighed the evidence. See Tex. Gov’t Code

§ 2001.174; Charter Med.-Dallas, 665 S.W.2d at 452; Sanchez, 229 S.W.3d at 511. We sustain the

Department’s third issue.

               Because we have determined that substantial evidence in the administrative record

supports the ALJ’s findings on each of the issues in Section 724.042 of the Transportation Code, we

conclude that the county court at law erred by reversing the ALJ’s decision.


                                          CONCLUSION

               Having concluded that the trial court erred by reversing the ALJ’s decision, we

reverse the trial court’s judgment and render judgment reinstating the ALJ’s administrative order

authorizing the Department to suspend McHugh’s driver’s license for 180 days.




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                                            __________________________________________

                                            Scott K. Field, Justice

Before Chief Justice Jones, Justices Pemberton and Field

Reversed and Rendered

Filed: October 24, 2014




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