Texas Department of Public Safety v. Mario Salinas--Appeal from 38th Judicial District Court of Uvalde County

MEMORANDUM OPINION
No. 04-03-00578-CV
TEXAS DEPARTMENT OF PUBLIC SAFETY,
Appellant
v.
Mario SALINAS,
Appellee
From the 38th Judicial District Court, Uvalde County, Texas
Trial Court No. 23,526
Honorable Mickey R. Pennington, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 12, 2004

REVERSED AND RENDERED

The Texas Department of Public Safety ("DPS") appeals a district court judgment reversing an administrative order suspending the driver's license of Mario Salinas ("Salinas"). The DPS raises two issues on appeal: the admissibility of the DPS officer's report, and the existence of substantial evidence to support the license suspension. We reverse and render judgment upholding the suspension of Salinas' license.

Background

After observing Salinas change lanes without signaling and turn directly in front of another vehicle, DPS officer Johnny Field ("Officer Field") stopped Salinas' vehicle. Officer Field observed Salinas losing his balance and detected a strong alcohol odor on his breath and bloodshot eyes. The officer suspected that Salinas was intoxicated and conducted a series of field sobriety tests. After Salinas failed the tests, he was arrested on suspicion of driving while intoxicated. Officer Field requested a breath specimen for alcohol concentration testing, which Salinas refused.

A hearing was held before an Administrative Law Judge ("ALJ") to determine whether Salinas' driver's license should be suspended. The ALJ held that suspension was warranted for two years pursuant to Section 724.035(b) of the Texas Transportation Code because Salinas' driving record showed one or more prior alcohol or drug related enforcement contacts during the preceding ten years. See Tex. Transp. Code Ann. 724.035(b) (Vernon Supp. 2004). Salinas filed a petition for review in district court. The district court reinstated Salinas' license, but did not specify its reason for reversing the ALJ's decision. This appeal by the DPS followed.

Standard of Review

Courts review administrative license suspensions under the substantial evidence standard. See Tex. Transp. Code Ann. 524.043 (Vernon 1999); Tex. Gov't Code Ann. 2001.174 (Vernon 2000); see Mireles v. Tex. Dep't of Public Safety, 9 S.W.3d 128, 131 (Tex. 1999). The issue for the reviewing court is not whether the agency's decision is correct, but only whether the record demonstrates some reasonable basis for the agency's action. Mireles, 9 S.W.3d at 131. The court may not substitute its judgment for that of the agency. Id.; see also Tex. Dep't of Public Safety v. Pruitt, 75 S.W.3d 634, 639 (Tex. App.--San Antonio 2002, no pet.) (any evidentiary ambiguities should be resolved in favor of the administrative order). In contested cases, the reviewing court must affirm the administrative findings if there is more than a scintilla of evidence to support them. Mireles, 9 S.W.3d at 131. The appellate court reviews the trial court's determination de novo. Tex. Dep't of Pub. Safety v. Cuellar, 58 S.W.3d 781, 783 (Tex. App.--San Antonio 2001, no pet.).

Analysis

In its first issue, the DPS contends the ALJ did not err in admitting Officer Field's report because (1) it was signed and sworn to before a notary, despite a clerical error, and (2) even if the report was not properly sworn, the report was still admissible. At the administrative hearing, Salinas objected to the admission of Officer Field's report on the basis that it was not properly sworn to before a notary. Salinas argued that because the report omits Field's name in the introductory portion stating, "[b]efore me, the undersigned authority, on this day personally appeared [blank] ....," the report fails to show Field appeared before the notary and swore under oath that the information was true; thus, the report was not properly sworn and was inadmissible. The ALJ ruled that the report was admissible and considered it in reaching its decision. The district court reversed.

Officer Field's written report states that he is a peace officer, that the information in the report is true and correct, and that he had probable cause to suspect Salinas was intoxicated while operating a motor vehicle. Officer Field's printed name and signature appear at the bottom of the report, along with a notarization. Field's printed name clearly appears at the beginning of the report as well. The court in Minyard v. Southern Pipe & Supply Co., Inc., addressed the situation where an affiant's name is omitted from a line in the affidavit where it should have been printed. The court held that the omission was cured because the words "sworn to and subscribed before me" appeared immediately below the affiant's signature, accompanied by the notary's seal. Minyard v. Southern Pipe & Supply Co., Inc., 563 S.W.2d 332, 333 (Tex. Civ. App.--Dallas 1978, writ ref'd n.r.e.). Here, Officer Field's name is omitted from the introductory portion of the affidavit, but his printed name and signature appear at the end of the report, followed by the words "sworn to and subscribed before me" and the notary's seal. Therefore, it is reasonable to presume that the signing individual and affiant are one and the same. See Minyard, 563 S.W.2d at 333. We conclude that Officer Field's report constituted a sworn report, and was properly admitted at the administrative hearing. We further note that the statute does not require the officer's report to be notarized in order to be admissible in the administrative proceeding. See Tex. Transp. Code Ann. 724.032 (Vernon Supp. 2004) (requiring only that the officer's report be in writing and reflect the defendant's refusal to submit a breath specimen); Pruitt, 75 S.W.3d at 638. The ALJ did not err in admitting Officer Field's report and in considering the report in reaching its decision to suspend Salinas' license.

In its second issue, the DPS contends the district court abused its discretion in reversing the ALJ's decision because there was substantial evidence to support the suspension of Salinas' driver's license. We agree. In light of our conclusion that Officer Field's report was properly admitted by the ALJ, we will consider the report in our review of the administrative record. In reviewing the administrative record to determine whether there was substantial evidence to support the ALJ's decision, we note that Officer Field's report indicates he personally observed that Salinas: 1) changed lanes without signaling and turned directly in front of another vehicle; 2) had a strong odor of alcohol on his breath; 3) had bloodshot eyes; 4) had to hold on to the car door to keep from losing his balance; 5) performed poorly on the field sobriety tests; and 6) refused to provide a specimen of his breath.

We find substantial evidence in the record to support the ALJ's finding that Officer Field had reasonable suspicion to stop Salinas's vehicle, and that probable cause to arrest him for driving while intoxicated developed during the stop. See McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993) (officer may legally initiate a traffic stop if he has a reasonable basis for suspecting the person has committed a traffic offense); see also Tex. Dep't of Public Safety v. Butler, 110 S.W.3d 673, 676 (Tex. App.--Houston [14th Dist.] 2003, no pet.) (probable cause to arrest for DWI existed where defendant smelled of alcohol, had bloodshot eyes and difficulty walking, and failed a field sobriety test). The administrative record contains sufficient evidence to support the ALJ's affirmative findings on each issue required for the suspension of Salinas' license. See Tex. Transp. Code Ann. 724.042, 724.043 (Vernon Supp. 2004); see Mireles, 9 S.W.3d at 131 (appellate court must uphold administrative license suspension if the record demonstrates some reasonable basis for the agency's action). Accordingly, we hold the district court erred in reversing the ALJ's decision, and we render judgment reinstating the administrative order suspending Salinas' license.

Phylis J. Speedlin, Justice