COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-459-CV
TEXAS DEPARTMENT OF APPELLANT
PUBLIC SAFETY
V.
FRANK RILEY GILFEATHER APPELLEE
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FROM COUNTY COURT AT LAW OF WISE COUNTY
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OPINION ON REHEARING
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I. Introduction
After considering Appellant Texas Department of Public Safety’s motion
for rehearing en banc, we grant the motion, withdraw our opinion and judgment
dated March 5, 2009, and substitute the following.
In one issue, the Department challenges the trial court’s reversal of an
administrative law judge’s (“ALJ”) order suspending Appellee Frank Riley
Gilfeather’s driver’s license. We reverse the trial court’s judgment and render
judgment reinstating the ALJ’s order.
II. Factual and Procedural History
Shortly after midnight on December 12, 2006, Trooper Chris Markin
stopped Gilfeather for speeding but let him go with a warning. In a separate
incident approximately five minutes later, Trooper Christopher Petty stopped
Gilfeather for driving 68 m.p.h. in a 55 m.p.h. speed zone.1
Upon making contact with Gilfeather, Trooper Petty asked him for his
driver’s license and insurance. Instead of handing Trooper Petty the requested
items, Gilfeather handed him the warning that Trooper Markin had just given
him. While talking to Gilfeather, Trooper Petty noticed an odor of alcohol
coming from the vehicle and saw that Gilfeather had red, bloodshot, glassy
eyes. Trooper Petty asked Gilfeather to step out of the vehicle to determine if
the odor was coming from Gilfeather or the vehicle. Gilfeather did not stagger
as he stepped out of the car, but Trooper Petty did notice that Gilfeather
swayed as he walked and as he stood on the side of the road. Trooper Petty
detected a strong odor of alcohol on Gilfeather’s breath and decided to
administer field sobriety tests. Gilfeather refused to participate in the tests.
1
… Trooper Petty testified that he used radar equipment to determine
Gilfeather’s speed.
2
Based on his observations, Trooper Petty arrested Gilfeather for driving
while intoxicated. After the arrest, Trooper Petty asked Gilfeather to take a
breath test. Gilfeather refused and signed a warning form acknowledging that
if he refused the breath test, his license would be suspended for not less than
180 days.
Gilfeather’s license was subsequently suspended. Gilfeather requested
an administrative hearing to contest the suspension. At the hearing, the
Department’s evidence consisted of Trooper Petty’s offense report and his
testimony. Gilfeather testified on his own behalf. After the hearing, the ALJ
issued an order sustaining the suspension of Gilfeather’s driver’s license.
Gilfeather appealed the decision to the Wise County Court at Law, which
reversed the ALJ’s decision. The Department now appeals.
III. Standard of Review
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. See Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex.
1999). Under this standard, the reviewing court cannot replace the ALJ’s
judgment with its own. See id.; R.R. Comm’n of Tex. v. Torch Operating Co.,
912 S.W.2d 790, 792 (Tex. 1995). If the ALJ’s decision is supported by more
than a scintilla of evidence, that decision must be upheld. See Torch Operating
3
Co., 912 S.W.2d at 792–93. 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. See Tex.
Gov’t Code Ann. § 2001.174(2)(E) (Vernon 2008).
The court of appeals reviews the trial court’s substantial evidence review
de novo. Tex. Dep't of Pub. Safety v. Valdez, 956 S.W.2d 767, 769 (Tex.
App.—San Antonio 1997, no pet.). 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. See Tex. Dep't of
Pub. Safety v. Fisher, 56 S.W.3d 159, 162 (Tex. App.—Dallas 2001, no pet.)
(citing Mireles, 9 S.W.3d at 131). 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. See id. If
the evidence is conflicting, the court must defer to the ALJ’s factual findings.
See Brown v. Tex. Dep’t of Ins., 34 S.W.3d 683, 689 (Tex. App.—Austin
2000, no pet.).
IV. Discussion
In its sole issue, the Department asserts that the trial court erred in
reversing the ALJ’s decision to sustain the suspension of Gilfeather’s license
4
because there was substantial evidence to support each of the findings required
to do so. We agree.
Pursuant to the transportation code, if a person is arrested and the peace
officer making the arrest has reasonable grounds to believe that the person is
driving while intoxicated, specimens of the person’s breath or blood may be
taken. See Tex. Transp. Code Ann. § 724.012(a)(1) (Vernon Supp. 2008). If
the person refuses to submit to the taking of a specimen, the Department shall
suspend the person’s license to operate a motor vehicle on a public highway for
180 days. Id. § 724.035(a)(1) (Vernon Supp. 2008). If a person’s license is
suspended under this chapter, that person may request a hearing on the
suspension. Id. § 724.041 (Vernon Supp. 2008). At the hearing, the
Department must prove the following:
(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.
5
Id. § 724.042 (Vernon Supp. 2008).
Here, the undisputed evidence showed that Trooper Petty placed
Gilfeather under arrest, that Trooper Petty requested a specimen from
Gilfeather, and that Gilfeather refused to give a specimen. Thus, the only two
contested issues are (1) whether Trooper Petty had reasonable suspicion or
probable cause to stop or arrest Gilfeather and (2) whether Trooper Petty had
probable cause to believe that Gilfeather was driving while intoxicated.
1. Reasonable Suspicion to Stop Gilfeather
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 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. Id.; Garcia
v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Under this standard,
we look to whether an objective basis for the stop existed while considering the
totality of the circumstances. Ford, 158 S.W.3d at 492–93. An officer may
stop a driver if he has reasonable suspicion that a traffic violation was in
progress or had been committed. Fisher, 56 S.W.3d at 163.
6
After reviewing the administrative record, we conclude that substantial
evidence supports the ALJ’s reasonable suspicion determination. Specifically,
Trooper Petty testified that Gilfeather had been driving 68 m.p.h. in a 55 m.p.h.
zone. Trooper Petty further testified that he had used radar equipment to
determine Gilfeather’s speed. Thus, Trooper Petty had reasonable suspicion to
stop Gilfeather for the offense of speeding.2 See id.; see also Tex. Transp.
Code Ann. § 545.351 (Vernon 1999) (declaring that speeding is a traffic
violation for which an officer may lawfully stop and detain a person).
Accordingly, the Department satisfied the first contested issue under section
724.042.
2. Probable Cause that Gilfeather was Driving While Intoxicated
Probable cause for a warrantless arrest exists if, at the moment the arrest
is made, the facts and circumstances within the arresting officer’s knowledge
and of which he has reasonably trustworthy information are sufficient to
warrant a prudent man as believing that the person arrested had committed or
2
… The Department did not have to prove a connection between Trooper
Petty stopping Gilfeather for speeding and the arrest of Gilfeather for DWI. See
Tex. Dep’t of Pub. Safety v. Torres, 54 S.W.3d 438, 441 (Tex. App.—Fort
Worth 2001, no pet.) (holding that the Department is not required to prove a
connection between the reason for the stop and the reason for the person’s
arrest, and an officer may validly stop a vehicle for one offense and arrest the
driver for an unrelated offense).
7
was committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223,
225 (1964). “An offense is deemed to have occurred within the presence or
view of an officer when any of his senses afford him an awareness of its
occurrence.” State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).
The test for probable cause is an objective one, unrelated to the subjective
beliefs of the arresting officer, and it requires a consideration of the totality of
the circumstances facing the arresting officer. Maryland v. Pringle, 540 U.S.
366, 371, 124 S. Ct. 795, 800 (2003); Beck, 379 U.S. at 96–97, 85 S. Ct.
at 228. A finding of probable cause requires “more than bare suspicion” but
“less than . . . would justify . . . conviction.” Brinegar v. United States, 338
U.S. 160, 175, 69 S. Ct. 1302, 1310 (1949).
Speeding can indicate impaired mental judgment and, therefore, is a
factor to be considered as part of the totality of the circumstances. See, e.g.,
Arthur v. State, 216 S.W.3d 50, 55–56 (Tex. App.—Fort Worth 2007, no
pet.); see also State v. Cullen, 227 S.W.3d 278, 282 (Tex. App.—San Antonio
2007, pet. ref’d). Bloodshot eyes, an odor of alcohol on a person’s breath, and
unsteady balance are all classic symptoms of intoxication. See Cotton v. State,
686 S.W.2d 140, 142–43 & n.3 (Tex. Crim. App. 1985). Finally, this court
and numerous other courts of appeals have held that the refusal to participate
in field sobriety tests is a factor to be considered in the totality of the
8
circumstances. Maxwell v. State, 253 S.W.3d 309, 314 (Tex. App.—Fort
Worth 2008, pet. ref’d); see Partee v. Tex. Dep’t of Pub. Safety, 249 S.W.3d
495, 501–02 (Tex. App.—Amarillo 2007, no pet.); Tex. Dep’t of Pub. Safety
v. Nielsen, 102 S.W.3d 313, 317 (Tex. App.—Beaumont 2003, no pet.); see
also Lonsdale v. State, No. 08-05-00139-CR, 2006 WL 2480342, at *3 (Tex.
App.—El Paso Aug. 29, 2006, pet. ref’d) (not designated for publication);
Peters v. Tex. Dep't of Pub. Safety, No. 05-05-00103-CV, 2005 WL 3007783,
at *2 (Tex. App.—Dallas Nov. 10, 2005, no pet.) (mem. op., not designated for
publication); Lemay v. Tex. Dep't of Pub. Safety, No. 04-05-00089-CV, 2005
WL 2755928, at *1 (Tex. App.—San Antonio Oct. 26, 2005, no pet.) (mem.
op., not designated for publication).
Here, the evidence showed that Gilfeather had received a warning from
Trooper Markin for speeding approximately five minutes prior to Trooper Petty’s
stop; that Trooper Petty stopped Gilfeather for driving thirteen miles over the
speed limit; that Gilfeather had red, bloodshot, glassy eyes; that Gilfeather
swayed while walking and while standing on the side of the road; that
Gilfeather had a strong odor of alcohol on his breath; and that Gilfeather had
refused to participate in any of the field sobriety tests.
Based on the foregoing evidence, as applied to the totality of the
circumstances test, we conclude that the ALJ’s finding that Trooper Petty had
9
probable cause to believe that Gilfeather was driving while intoxicated was
reasonably supported by substantial evidence. See State v. Garrett, 22 S.W.3d
650, 654 (Tex. App.—Austin 2000, no pet.) (finding probable cause to arrest
defendant for DWI when officer testified defendant smelled of alcohol, had
watery eyes, was unsteady on his feet, and drove illegally); Reynolds v. State,
902 S.W.2d 558, 560 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d)
(finding probable cause to arrest defendant for DWI when officer testified
defendant had slurred speech, bloodshot eyes, breath that smelled of alcohol,
and posed a danger to himself and others). Thus, the Department satisfied the
second, and final, contested issue under section 724.042.
We therefore conclude that the decision by the ALJ to continue
suspension of Gilfeather’s license was supported by more than a scintilla of
evidence and that there was some reasonable basis in the record for the action
taken by the ALJ. See Mireles, 9 S.W.3d at 131. Accordingly, we sustain the
Department’s sole issue.
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V. Conclusion
Having sustained the Department’s sole issue, we reverse the trial court’s
judgment and render judgment reinstating the ALJ’s order.
BOB MCCOY
JUSTICE
EN BANC
DAUPHINOT, J. filed a dissenting opinion.
WALKER, J. concurs without opinion.
DELIVERED: August 6, 2009
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-459-CV
TEXAS DEPARTMENT OF APPELLANT
PUBLIC SAFETY
V.
FRANK RILEY GILFEATHER APPELLEE
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FROM COUNTY COURT AT LAW OF WISE COUNTY
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DISSENTING OPINION ON REHEARING
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I must respectfully dissent from the majority opinion’s holding that the
refusal to participate in field sobriety tests is damning evidence that we must
consider in performing a de novo substantial evidence review of an ALJ’s
decision on probable cause. That is, I cannot agree that an absence of
evidence must perforce constitute evidence of guilt. Does a person who
refuses to give a statement to the police or to be interviewed by the police do
so only because to provide a statement or an interview would reveal his guilt,
and, on appeal, must we then treat the absence of a statement or an interview
as evidence of guilt?
Suppose a person refuses to consent to a search of his vehicle, his home,
his office, or his person. Suppose he refuses to consent to a search of a home,
vehicle, or office he shares with someone else. Suppose a person refuses to
voluntarily provide a voice exemplar, or hair follicles, or a blood sample, or a
handwriting sample. Suppose a person refuses to allow his child to be
interviewed. Is this evidence of his guilt?
The law clearly provides that a person may refuse to participate in any
interview by the police or, having begun to participate, may terminate the
interview at any point.1 This is true whether a person is or is not in custody.
How, then, can we say that if a person invokes his right not to speak with the
police and not to perform demonstrations for the police, we must consider this
decision as evidence of guilt?
Even the statute that permits the trier of fact to consider the refusal to
submit to a breath test, under the implied consent rule, does not mandate that
1
… Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a) (Vernon 2005); see
Miranda v. Arizona, 384 U.S. 436, 445, 86 S. Ct. 1602, 1612 (1966).
2
the refusal be considered as evidence of guilt.2 As the Texas Court of Criminal
Appeals has explained,
[A]lthough Section 724.061 of the Texas Transportation Code
expressly allows the court to admit the evidence of a defendant’s
refusal to take a breath test, there is no statutory language that
directs the jury to attach any special weight or significance to such
evidence. That the statute expressly makes the evidence
admissible does not, by itself, also authorize the trial court to single
it out for the jury’s particular attention. . . .
Nor does Texas law anywhere establish any presumption that
arises in a DWI case from the defendant’s refusal to take a breath
test. Evidence of the appellant’s refusal to submit to a breath test
is relevant for precisely the reason that the trial court identified in
the contested jury instruction, namely, that it tends to show a
consciousness of guilt on his part. But Section 724.061 of the
Transportation Code does not establish a legally recognized
presumption of consciousness of guilt that follows from the fact of
refusal. We are aware of no other statutory language that
expressly authorizes the jury to presume a consciousness of guilt
from the refusal to take a breath test. In the absence of such a
legal presumption, it is improper for the trial court to instruct the
jury with respect to inferences that may or may not be drawn from
evidentiary facts to ultimate or elemental facts.3
Clearly, the officer’s questioning of Gilfeather at the side of the road was
an interview, and even an interrogation. Unquestionably, Gilfeather was not
free to leave. At no time did the officer provide any of the warnings mandated
by state or federal law. Gilfeather declined to participate in field sobriety tests
2
… See Tex. Transp. Code Ann. § 724.061 (Vernon 1999).
3
… Bartlett v. State, 270 S.W.3d 147, 152–53 (Tex. Crim. App. 2008)
(citations omitted).
3
because his father, a lawyer and a judge, had advised him not to participate in
them. The majority holds that we must consider this decision not as evidence
that Gilfeather was thinking clearly enough to very politely explain his father’s
advice and to follow it but as evidence of intoxication.
Evidence of a person’s refusal to submit to a breath test is deemed
admissible by statute under the implied consent provision.4 Nowhere has the
legislature provided implied consent to participate in field sobriety tests.
Evidence that Gilfeather declined to participate in field sobriety tests is simply
evidence that he declined to participate in field sobriety tests. It is not evidence
of his ability or inability to perform such field sobriety tests.
I cannot agree with the majority’s mandate that we must consider the
absence of evidence as evidence of guilt. I would hold that Gilfeather’s
decision not to participate in that portion of the interview was a decision to
decline to participate in that portion of the interview. I cannot, as does the
majority, say that we must consider his declining the officer’s request to
perform on the side of the road as evidence of guilt. I therefore must
respectfully dissent.
LEE ANN DAUPHINOT
JUSTICE
DELIVERED: August 6, 2009
4
… See Tex. Transp. Code Ann. § 724.061.
4