TEXAS DEPARTMENT OF PUBLIC SAFETY v. CARLOS CELEDON--Appeal from County Court at Law No 2 of Hidalgo County

    NUMBER 13-01-557-CV

    COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

TEXAS DEPARTMENT OF

PUBLIC SAFETY, Appellant,

v.

CARLOS CELEDON, Appellee.

On appeal from the County Court at Law No. 2

of Hidalgo County, Texas.

O P I N I O N

Before Justices Hinojosa, Ya ez, and Castillo

Opinion by Justice Ya ez

Appellee, Carlos Celedon, had his license suspended after refusing an intoxilyzer test while under arrest for driving while intoxicated[1] (ADWI@). Appellee requested an administrative hearing to contest the suspension, at which the administrative law judge (AALJ@) sustained the suspension. Appellee appealed the ALJ=s suspension to County Court at Law No. 2 of Hidalgo County, where the court reversed the ALJ ruling and reinstated appellee=s license. The Texas Department of Public Safety (ADPS@) appealed the county court=s ruling and contends that the trial court erred in overruling the ALJ=s finding that there was reasonable suspicion to stop appellee and probable cause for appellee=s arrest. We reverse the ruling of the county court and reinstate the judgment of the ALJ.

Celedon, appellee, contends that this Court does not have jurisdiction because the notice of appeal was not timely filed. We disagree. Although without a timely notice of appeal, nothing is properly before this Court, the notice of appeal in this case was timely. See Tex. R. App. P. 25.1. An appeal is perfected when a written notice of appeal is filed with the trial court clerk. Id. Here, the notice of appeal, as sent to the county clerk, conforms to the standards set forth in rule 9.2(b) of the Texas Rules of Appellate procedure. Tex. R. App. P. 9.2(b)(1). Rule 9.2(b)(1) provides:

A document received within ten days after the filing deadline is considered timely filed if:

(A) it was sent to the proper clerk by United States Postal Service, first-class, express, registered or certified mail;

(B) it was placed in an envelope or wrapper properly addressed and stamped; and

(C) it was deposited in the mail on or before the last day of filing.

Id. Appellee only contends that the notice of appeal does not comply with this rule because the notice of appeal was not sent to the proper address. Moreover, the record indicates that all other requirements have been met.

We conclude that the notice was sent to the proper address. Notice may be sufficient if it is apparent that the address was valid and could be located by the postal office. See Wright v. Wentzel, 749 S.W.2d 228, 232 (Tex. App.BHouston [1st Dist.] 1988, no writ); see also Zuyus v. No=Mis Communications, Inc., 930 S.W.2d 743, 747 (Tex. AppBCorpus Christi 1996, no writ). The notice of appeal envelope bears a stamp indicating the address was Anot deliverable;@ however, the envelope=s address is identical to the address used on other correspondence with the county clerk. Although some courts have held that an envelope exhibiting such a stamp indicates the address is improper, this case is different in that the envelope=s address is valid. See Barnes v. Frost Nat'l Bank, 840 S.W.2d 747, 750 (Tex. AppBSan Antonio 1992, no writ) (distinguishing between Aunclaimed@ and Arefused@ mail); Transoceanic Shipping Co., Inc. v. Gen. Universal Sys., Inc., 961 S.W.2d 418, 420 (Tex. App.BHouston [1st Dist.] 1997, no writ) (explaining the effect of an envelope stamped Aundeliverable@). In fact, the letter requesting inclusion of the envelope into the clerk=s record was sent to the county clerk at the identical address to which the notice of appeal was sent and returned. If the address was not proper, the letter and envelope would not have been received by the clerk and would not have been included in the record. Therefore, it is apparent that the address was valid and could be located by the postal office. See Wright, 749 S.W.2d at 232. Moreover, the address of the county clerk to which the appeal was sent is the same address on file with this Court. We conclude that the address was proper.

The record indicates that all other elements of the rule have been met; therefore, we conclude that the notice of appeal was timely filed.[2] See Tex. R. App. P. 25.1; Tex. R. App. P. 9.2(b)(1). Thus, this Court has jurisdiction.

This Court conducts its review of license suspension appeals under the substantial evidence standard. See Tex. Transp. Code Ann. ' 524.041 (Vernon 1999); Tex. Gov=t Code Ann. ' 2001.174 (Vernon 1999); Tex. Dep=t of Pub. Safety v. Pucek, 22 S.W.3d 63, 67 (Tex. App.BCorpus Christi 2000, no pet.); Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 130 (Tex. 1999). A court applying the substantial evidence standard of review may not substitute its judgment for that of the ALJ. Pucek, 22 S.W.3d at 67. Courts must affirm administrative findings if there is more than a scintilla of evidence to support them, even if the preponderance of the evidence is against it. Id. The issue is not whether the agency's decision was correct, but only whether the record demonstrates some reasonable basis for the agency's action. Id. Furthermore, any evidentiary ambiguities should be resolved in favor of the administrative order with a finding of substantial evidence to support the ALJ's decision. R.R. Comm=n v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995); Tex. Dep=t. of Pub. Safety v. Cuellar, 58 S.W.3d 781, 783 (Tex. App.BSan Antonio 2001, no pet.).

On February 25, 2001, at 2:25 a.m., Officer Yolanda Flores of the McAllen Police Department was dispatched to a parking lot accident. The officer=s sworn police report indicates that Officer Flores identified Celedon as one of the drivers involved in the accident. Celedon immediately told her upon arrival that he had just struck the other vehicle. The report relates that Celedon had an odor of an alcoholic beverage on his breath, slurred speech, unsteady balance, and bloodshot eyes. After recording the information of the two vehicles in the accident, Officer Flores performed field sobriety tests. Officer Flores=s report indicates that Celedon did not pass the field sobriety tests, and was arrested for DWI. Celedon was taken in for an intoxilyzer test and during the intoxication interview, answered affirmatively that he had been operating a motor vehicle. Celedon then refused to perform the intoxilyzer test. Because of the refusal, his driver=s license was suspended.

An administrative hearing was held contesting Celedon=s license suspension. At the ALJ hearing, Celedon presented evidence in conflict with Officer Flores=s sworn report. Appellee contended that although he had been drinking, he had not done so recently and did not have slurred speech or unsteady balance. In addition, he argued that Officer Flores had dismissed him prior to performing field sobriety tests and therefore had neither Anew@ reasonable suspicion to stop nor probable cause to arrest him. Moreover, he presented evidence from another passenger in the car that he passed the field sobriety tests.

Despite this conflicting evidence, the ALJ sustained the actions of the DPS and upheld the license suspension. On appeal to the county court, the ALJ=s ruling was reversed and Celedon=s license reinstated. The DPS now appeals the county court=s ruling, contending that the court erred in reversing the decision of the ALJ.

By two issues, DPS asserts that the ALJ had sufficient evidence to support the officer=s reasonable suspicion to stop Celedon and probable cause to arrest him for DWI. First, if an officer has a reasonable basis for suspecting a person has committed an offense, the officer may legally initiate the traffic stop. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993). Under reasonable suspicion, the State is not required to show an offense was actually committed, but only that there was a reasonable belief by the officer that a violation was in progress. Valencia v. State, 820 S.W.2d 397, 400 (Tex. App.BHouston [14th Dist.] 1991, pet. ref=d). Secondly, Aprobable cause exists where the police have reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense.@ Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997); Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). The considerations for probable cause concern the practical and factual considerations of reasonable people in everyday life. Guzman, 955 S.W.2d at 87. Probable cause requires more than reasonable suspicion, but far less evidence than needed to support a conviction by a preponderance of the evidence. Id.

After reviewing the record, we conclude that substantial evidence supports the ALJ=s reasonable suspicion and probable cause determinations. The evidence indicates that Celedon had been operating a motor vehicle and his behavior was indicative of being under the influence. Moreover, the instant case parallels a previous case before this Court. In DPS v. Pucek, the officer=s sworn police report was admitted into evidence indicating that Pucek admitted that he had been driving a motor vehicle when it struck a barbed wire fence, a barn, a flatbed trailer and a tractor. Pucek, 22 S.W.3d at 67. The report also showed Pucek had a strong odor of alcohol, slurred speech and appeared to be unsteady. Id. at 68. He also did not perform well on the field sobriety tests. Id. Thus, this Court found there was reasonable suspicion to stop and probable cause to arrest Pucek for a DWI. Id.

The facts in this case are remarkably similar. Just as in Pucek, the ALJ admitted into evidence the officer=s sworn police report. Officer Flores=s report indicates that Celedon was driving when his vehicle struck Mr. Villialon=s vehicle in the parking lot. The report indicates that Celedon exhibited evidence of intoxication and that Celedon did not successfully complete the field sobriety tests. Therefore, just as in Pucek, there was reasonable suspicion to stop and probable cause to arrest Celedon. See id at 68.

At most, Celedon has only presented conflicting evidence as to whether the stop or the arrest should have been made. However, in the face of conflicting evidence, it is the ALJ=s job to decide the credibility of the evidence. Cuellar, 58 S.W.3d at 783. Apparently, the ALJ did so and discounted the testimony by those witnesses brought forth by Celedon. See id. The county court cannot substitute its judgment for that of the ALJ. Pucek, 22 S.W.3d at 67. Moreover, in looking at the evidence in the light most favorable to the ALJ=s findings, there is more than sufficient evidence to support the ALJ=s determinations of reasonable suspicion and probable cause. Cuellar, 58 S.W.3d at 783. Thus, on the basis of the police report, there is sufficient evidence to support a reasonable interpretation consistent with the ALJ=s findings. See id.

We reverse the judgment of the county court and reinstate the ruling of the ALJ.

LINDA REYNA YA EZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

29th day of August, 2002.

[1] See Tex. Pen. Code Ann. ' 49.04 (Vernon Supp. 2002).

[2] In addition, the correspondence of this Court reveals that the notice of appeal was also properly filed with this Court under rule 25.1 within the time line set forth in rule 9.2(b). Tex. R. App. P. 25.1; Tex. R. App. P. 9.2(b)(1). Rule 25.1 states Aif notice of appeal is mistakenly filed with the appellate court, the notice is deemed to have been filed the same day with the trial court clerk. . . .@ Tex. R. App. P. 25.1. The record reflects that the notice of appeal was mailed to this Court prior to the last day of filing and was received within ten days from the last day of filing. Tex. R. App. P. 9.2(b)(1).