Opinion filed March 31, 2017




                                     In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-15-00043-CV
                                   __________

     TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
                                       V.
                     SETH AARON ARDOIN, Appellee


                On Appeal from the County Court at Law No. 2
                            Taylor County, Texas
                        Trial Court Cause No. 5899


                                  OPINION
      The Texas Department of Public Safety appeals from the county court’s
judgment restoring Seth Aaron Ardoin’s driving privileges. In its judgment, the
county court reversed an administrative law judge’s decision that authorized the
Department to suspend Ardoin’s driver’s license based upon his refusal to submit a
breath specimen after he was arrested for driving while intoxicated. See TEX.
TRANSP. CODE ANN. § 724.035 (West 2011). The county court found that the
administrative law judge erroneously determined that reasonable suspicion
supported the initial stop. In its sole issue, the Department asserts that the county
court erred in holding that there was no reasonable suspicion to stop Ardoin. We
reverse and render.
      When reviewing an administrative suspension, courts use a substantial
evidence standard of review. Mireles v. Texas Dep’t of Pub. Safety, 9 S.W.3d 128,
131 (Tex. 1999). A court applying the substantial evidence standard of review may
not substitute its judgment for that of the agency. Id. The issue for the reviewing
court is not whether the agency’s decision was correct, but only whether the record
demonstrates some reasonable basis for the agency’s action. Id. Courts must affirm
administrative findings in contested cases if there is more than a scintilla of evidence
to support them. Id. An administrative decision may be sustained even if the
evidence preponderates against it. Id.
       We review the trial court’s decision de novo. Tex. Dep’t of Pub. Safety v.
Gonzales, 276 S.W.3d 88, 91 (Tex. App.—San Antonio 2008, no pet.). This means
that we independently assess the administrative law judge’s decision under the
substantial evidence standard of review. Id. Whether substantial evidence exists to
support an administrative law judge’s order is a question of law. Tex. Dep’t of Pub.
Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006). The true test is not whether the
agency reached the correct conclusion, but whether some reasonable basis exists in
the record for the action taken by the agency. See Tex. Health Facilities Comm’n v.
Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). The reviewing court
is not bound by the reasons given by an agency in its order, provided there is a valid
basis in the record supporting the agency’s action. See id.
      In an administrative license-suspension hearing, the Department bears the
burden of proving several elements, the first of which is that “reasonable suspicion
or probable cause existed to stop or arrest the person.” TRANSP. § 724.042(1). The
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only contested element in this case is whether the arresting officer had reasonable
suspicion to stop Ardoin. The administrative law judge made the following finding
on this element:

                           FINDINGS OF FACT NO. 1
            On June 13, 2014, reasonable suspicion to stop Defendant or
      probable cause to arrest Defendant existed. Abilene, Texas Police
      Officer Andrew Mason observed the Defendant operating a black Ford
      pickup truck on S. Clack Street, a public roadway, in Abilene, Taylor
      County, Texas. Officer Mason observed Defendant striking the curb
      on two occasions.
Accordingly, we must determine whether substantial evidence supports the
administrative law judge’s finding that reasonable suspicion existed for
Officer Mason to stop Ardoin. In that respect, we stand in the same position as the
county court, and we review the administrative law judge’s order without deference
to the county court’s judgment. See Alford, 209 S.W.3d at 103.
      Our scope of review is confined to the administrative record. Dep’t of Pub.
Safety v. Hirschman, 169 S.W.3d 331, 336 (Tex. App.—Waco 2005, pet. denied);
see TEX. GOV’T CODE ANN. § 2001.175(e) (West 2016). The evidence in this
administrative record is quite brief in that it only consists of three documents offered
by the Department and a recording of the stop offered by Ardoin. One of the three
documents was the “Peace Officer’s Sworn Report” prepared by Officer Mason.
The opening paragraph of his narrative stated as follows:
             On 6/13/2014, I was working overtime routine patrol for F
      Company in District 5. At approximately 0029 hours I was driving
      behind a black 2000 Ford F-150 (TX LP . . . ) in the 5500 block of S.
      Clack Street. I observed the vehicle strike the West curb in the 5500
      block of S. Clack Street. I continued to follow the vehicle and observed
      the vehicle strike the West curb again in the 6300 block of S. Clack
      Street. I continued to follow the vehicle, who turned West on Antilley
      Road. I then activated my emergency lights due to the vehicle striking


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      the West curb twice.       I was also suspicious that the driver was
      intoxicated.
This paragraph of Officer Mason’s narrative is the only portion of his report
addressing his basis for stopping Ardoin.
      The recording of the stop depicts Ardoin’s vehicle from the rear as recorded
from the dash of Officer Mason’s patrol unit as it followed Ardoin. Officer Mason
followed Ardoin for approximately one minute before activating the overhead lights
on his patrol unit to pull Ardoin over. The parties dispute whether the recording
depicts Ardoin striking the curb twice. As noted previously, the administrative law
judge found that “Officer Mason observed Defendant striking the curb on two
occasions.” Conversely, the county court found that the video only depicted one
incident of Ardoin striking the curb.
      The audio portion of the recording contains the verbal interaction between
Officer Mason and Ardoin. At the outset of the stop, Officer Mason asked Ardoin:
“Do you know why I’m am pulling you over?” After Ardoin answered, “No, sir,”
Officer Mason said, “You hit the curb twice back there on the access road.” Over
the course of the next minute, Officer Mason asked Ardoin questions about whether
he had been drinking and where he had been. Officer Mason then told Ardoin:
“Well, the reason I stopped you is “[be]cause you’re—hit the curb a couple of times
whenever you’re driving down Antilley . . . and its 12:30.”
      Ardoin asserts that the act of striking a curb is not a traffic offense and that its
observance could not serve as the basis for reasonable suspicion. The Department
asserts that Officer Mason did not need to describe a “particularized offense” in order
for reasonable suspicion to exist and that his statement that he suspected that Ardoin
was driving while intoxicated must be read in conjunction with his observation that
Ardoin struck the curb twice. Conversely, Ardoin contends that Officer Mason did
not say in his narrative that his observations of Ardoin striking the curb caused him

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to suspect Ardoin was intoxicated and therefore led to the stop. Ardoin asserts that
Officer Mason’s statement that “I was also suspicious that the driver was
intoxicated” was conclusory with no factual basis.
      We note at the outset that the bulk of the cases addressing reasonable
suspicion are criminal cases where the issue has been litigated in the context of a
motion to suppress. These cases typically have a much more developed record than
the administrative record before us. Additionally, the applicable standard of review
for a motion to suppress affords a great deal of deference to the trial court’s
resolution of historical facts and credibility issues. See Amador v. State, 221 S.W.3d
666, 673 (Tex. Crim. App. 2007). Under the standard of review applicable to this
appeal, however, we give no deference to the county court’s judgment, and we are
also not bound by the reasons given by the administrative law judge in her order.
Instead, we focus on whether some reasonable basis exists in the record for the action
taken by the agency.
       The Texas Court of Criminal Appeals issued an opinion after this case was
briefed that is instructive on the applicable analysis of reasonable suspicion. See
Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016). Leming involved a similar
contention of a vehicle being stopped after an officer observed it “drifting in its
lane.” Id. at 554. The officer in Leming testified that the driver almost hit the curb
twice. Id. Additionally, a video of the officer following the driver was also available
for the court to review. Id.
      The Leming court conducted an extensive analysis of Section 545.060(a)(1)
to conclude that the requirement of the Transportation Code to “drive as nearly as
practical entirely within a single lane” does not contain an element of “unsafety” in
order for a traffic offense to occur. Id. at 556–61. The court further determined that
it did not need to decide if the video showed the driver leaving his lane entirely
“because, for a peace officer to stop a motorist to investigate a traffic infraction, as
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is the case with any investigative stop, ‘proof of the actual commission of the offense
is not a requisite.’” Id. at 561 (quoting Drago v. State, 553 S.W.2d 375, 377 (Tex.
Crim. App. 1977)).
      The court in Leming continued its analysis by determining that the officer had
an objective basis for having a reasonable suspicion that the driver was driving while
intoxicated. Id. at 561. The court quoted extensively from Derichsweiler v. State:
      A police officer has reasonable suspicion to detain if he has specific,
      articulable facts that, combined with rational inferences from those
      facts, would lead him reasonably to conclude that the person detained
      is, has been, or soon will be engaged in criminal activity. This standard
      is an objective one that disregards the actual subjective intent of the
      arresting officer and looks, instead, to whether there was an objectively
      justifiable basis for the detention. It also looks to the totality of the
      circumstances; those circumstances may all seem innocent enough in
      isolation, but if they combine to reasonably suggest the imminence of
      criminal conduct, an investigative detention is justified.
Id. at 562 (quoting Derichsweiler v. State, 348 S.W.3d 906, 914–15 (Tex. Crim.
App. 2011)). The court stated in Leming that “[t]he question here is whether [the
officer] had an objectively reasonable basis to suspect the driver . . . to be
intoxicated.” Id. at 563. Citing Navarette v. California, 134 S. Ct. 1683, 1690–91
(2014), the court recognized that reasonable suspicion need not rule out the
possibility of innocent conduct. Id.; see also Jaganathan v. State, 479 S.W.3d 244,
248 (Tex. Crim. App. 2015). “Reasonable suspicion depends on the factual and
practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act. Under that commonsense approach, we can appropriately
recognize certain driving behaviors as sound indicia of drunk driving.” Leming, 493
S.W.3d at 564 (quoting Navarette, 134 S.Ct. at 1690).
      We note that the record in Leming was much more developed regarding the
officer’s basis for initiating the traffic stop. The officer in Leming had additional
facts, including a tip about the driver and a longer period of time to observe the
                                           6
driver’s operation of the vehicle. However, there are elements of Leming’s analysis
that are applicable to this proceeding.                   Specifically, an officer may have an
objectively reasonable basis to investigate the cause of unusual, erratic driving even
if that manner of driving does not necessarily constitute a traffic offense. Id.
        Viewing the evidence in the administrative record, we conclude that it
demonstrates some reasonable basis for the agency’s action of suspending Ardoin’s
driver’s license. See Mireles, 9 S.W.3d at 131. The recording of Ardoin’s vehicle
reveals that he was drifting within his lane. He clearly struck the curb on one
instance. The other instance is not as readily apparent because there was water on
the edge of the road, and it is not entirely clear if an actual curb was in existence
because of construction on the road. Under Leming, however, the act of “almost”
striking a curb can serve as a basis for an officer to investigate the cause of erratic
driving. The recording also depicts Ardoin driving on top of the white line on the
opposite side of his lane as he was making a right turn.
        Reasonable suspicion “is an objective standard that disregards the subjective
intent of the officer1 and requires only some minimal level of justification for the
stop. Brodnex v. State, 485 S.W.3d 432, 437 (Tex. Crim. App. 2016) (citing Wade v.
State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013); Foster v. State, 326 S.W.3d
609, 614 (Tex. Crim. App. 2010)). Ardoin’s erratic driving at 12:30 a.m. constituted
specific, articulable facts that provided Officer Mason with an objectively
reasonable basis to justify a temporary detention to investigate the cause of the
erratic driving. See Leming, 493 S.W.3d at 564–65. The Department’s sole issue is
sustained.


        1
         As noted previously, the parties disagree over the meaning and effect of Officer Mason’s statement
that he “was also suspicious that the driver was intoxicated.” We do not need to resolve this dispute because
it concerns the subjective intent of the officer, which is a matter we disregard in reviewing the existence of
reasonable suspicion.


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                                   This Court’s Ruling
      We reverse the judgment of the county court, and we render judgment in favor
of the Department, reinstating the decision of the administrative law judge.




                                                     JOHN M. BAILEY
                                                     JUSTICE


March 31, 2017
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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