Ladislado Castilleja, Jr. v. Texas Department of Public Safety--Appeal from County Court At Law No 2 of Guadalupe County

MEMORANDUM OPINION

No. 04-05-00841-CV

Ladislado CASTILLEJA,

Appellant

v.

TEXAS DEPARTMENT OF PUBLIC SAFETY,

Appellee

From the County Court at Law No. 2, Guadalupe County, Texas

Trial Court No. 2005-CV-0217

Honorable Frank Follis , Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone , Justice

Sarah B. Duncan , Justice

Delivered and Filed: September 6, 2006

AFFIRMED

Ladislado Castilleja appeals the trial court's judgment affirming an administrative law judge's order suspending his driver's license. On appeal, Castilleja contends the administrative law judge erred as a matter of law by finding reasonable suspicion existed for stopping him based on conclusory statements contained in the Peace Officer's Sworn Report. We affirm the trial court's judgment.

Courts review administrative license suspension decisions under the substantial evidence standard of review. Mireles v. Tex. Dept. of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999); Tex. Dept. of Pub. Safety v. Bell, 11 S.W.3d 282, 283 (Tex. App.--San Antonio 1999, no pet.). 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. Mireles, 9 S.W.3d at 131; Bell, 11 S.W.3d at 283. Substantial evidence only requires a mere scintilla of evidence. Mireles, 9 S.W.3d at 131; Bell, 11 S.W.3d at 283. Under a substantial evidence review, the reviewing court may not substitute its judgment for that of the agency. Mireles, 9 S.W.3d at 131; Bell, 11 S.W.3d at 283.

An officer conducts a lawful temporary detention 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. A reasonable suspicion determination is made by considering the totality of the circumstances. Id. at 492-93. To support a finding of reasonable suspicion, the evidence need not establish that a traffic violation was actually committed, but only that the facts supported a reasonable suspicion that a violation was in progress or had been committed. Tex. Dept. of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex. App.--Dallas 2001, no pet.).

In the offense report admitted into evidence by the administrative law judge, Trooper Barrett stated that he was traveling east on FM 78 and approached a car traveling 43 m.p.h. in a posted 65 m.p.h. speed zone at 11:05 p.m. Trooper Barrett began watching the car closer as he caught up to it. Trooper Barrett stated that the car crossed the solid white line, driving on the improved shoulder, when prohibited.

Initially, we note that Trooper Barrett's statements were of facts he witnessed from his observations of Castilleja's driving and were not conclusory. See Tex. Dept. of Pub. Safety v. Seidule, 991 S.W.2d 290, 293 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (holding statement that vehicle failed to maintain a single marked lane was not conclusory). Trooper Barrett stopped Castilleja for improperly driving on an improved shoulder. Section 545.048 of the Texas Transportation Code prohibits a driver from driving on an improved shoulder unless the operation is necessary, may be done safely, and is done for one of the specific purposes listed in the statute. Tex. Transp. Code Ann. 545.058 (Vernon 1999). The record before the administrative law judge contained no evidence that Castilleja's driving on the improved shoulder was necessary, was safe, or was for one of the specific purposes authorized by statute. See, e.g., Tyler v. State, 161 S.W.3d 745, 750 (Tex. App.--Fort Worth 2005, no pet.) (finding probable cause to stop appellant for driving on improved shoulder where record contained no evidence that driving on shoulder was necessary under any of the statutory exceptions); Martinez v. State, 29 S.W.3d 609, 611-12 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd) (holding trial court could have found reasonable suspicion for stop based on statutory violation for driving on shoulder where trooper testified driver drifted partially onto shoulder with right tires before pulling back into his lane of traffic); Neskorik v. State, No. 07-04-0578-CR, 2006 WL 908502, at *2 (Tex. App.--Amarillo Apr. 10, 2006, no pet.) (holding reasonable suspicion supported stop where no evidence suggested driving on shoulder was justified or necessary for any of the listed statutory exceptions) (not designated for publication);Thorn v. State, No. 2-04-00567-CR, 2006 WL 496000, at *2 (Tex. App.--Fort Worth Mar. 2, 2006, no pet.) (holding reasonable suspicion was established by driving on shoulder where no evidence revealed a necessity for doing so) (not designated for publication); State v. Wise, No. 04-04-00695-CR, 2005 WL 2952357, at *3 (Tex. App.--San Antonio Oct. 26, 2005, no pet.) (reversing trial court's determination that reasonable suspicion was lacking where officer testified that appellant drove on improved shoulder and no evidence was presented that it was necessary for appellant to drive on improved shoulder or that her actions fell within one of the permissible purposes) (not designated for publication). Furthermore, although driving 22 m.p.h. under the speed limit alone may not justify an investigatory stop for driving while intoxicated, see Richardson v. State, 39 S.W.3d 634, 640 (Tex. App.--Amarillo 2000, no pet.), traveling more than twenty miles under the speed limit coupled with driving on the improved shoulder might suffice to establish reasonable suspicion under the totality of the circumstances. See Davy v. State, 67 S.W.3d 382, 393 (Tex. App.--Waco 2001, no pet.) (noting facts standing alone may not suffice to establish reasonable suspicion but facts viewed collectively can suffice).

Because substantial evidence supported the administrative law judge's finding that reasonable suspicion supported Trooper Barrett's stop of Castilleja, the trial court's judgment is affirmed.

Alma L. L pez, Chief Justice