TEXAS DEPARTMENT OF PUBLIC SAFETY v. ROBERT LEE RODRIGUEZ--Appeal from County Court of San Patricio County

    NUMBER 13-01-838-CV

    COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

TEXAS DEPARTMENT OF

PUBLIC SAFETY, Appellant,

v.

ROBERT LEE RODRIGUEZ, Appellee.

On appeal from the County Court at Law

of San Patricio County, Texas.

O P I N I O N

Before Justices Hinojosa, Ya ez, and Castillo

Opinion by Justice Ya ez

The Texas Department of Public Safety (Athe Department@) appeals a judgment reversing the suspension of appellee Robert Lee Rodriguez=s driver=s license. Following a hearing by the State Office of Administrative Hearings, an administrative law judge (AALJ@) upheld the suspension of Rodriguez=s license. Rodriguez appealed, and the county court-at-law overturned the suspension. In a single point of error, the Department contends the trial court erred in reversing the suspension by finding there was insufficient evidence to support the administrative decision. We affirm the county court-at-law=s order.

At approximately three a.m. on March 31, 2001, while on routine patrol in Sinton, Trooper K.W. Thompson stopped appellee for failure to signal a right turn. After observing numerous signs of intoxication, Thompson asked appellee to perform five field sobriety tests. Appellee performed poorly on four out of five of the tests and was arrested for driving while intoxicated (ADWI@).[1] After being given the statutory DWI warning, appellee agreed to submit to a breath test, which showed his blood alcohol level to be above the legal limit. Pursuant to chapter 524 of the transportation code, appellee requested an administrative hearing. See Tex. Transp. Code Ann. '' 524.012(d), 524.031 (Vernon 1999).

The Department and appellee were each represented by counsel at the hearing, which was held on June 13, 2001, before an ALJ. The Department offered the Trooper=s sworn report, the breath test technical supervisor=s affidavit, and the breath test receipt. All were admitted without objection. The ALJ found the Department met its burden by proving there was reasonable suspicion to stop for failing to signal a turn, and probable cause to arrest appellee for operating a motor vehicle in a public place while intoxicated. See Tex. Transp. Code Ann. ' 524.035(a)(1)(A), (2) (Vernon 1999). Accordingly, the ALJ upheld the sixty-day suspension of appellee=s license.

Appellee appealed the ALJ=s decision to the county court-at-law, contending that Thompson lacked reasonable suspicion to stop appellee. Specifically, appellee argued that proof of a valid violation of the traffic laws regarding signaling requires not only a showing of failure to use a signal, but also evidence that the turn was made unsafely. The county court-at-law agreed and reversed the ALJ=s decision on the ground that there was insufficient evidence to show that appellee=s turn, without a signal, was also unsafe. The Department=s motion for new trial was denied by the county court-at-law because, additionally, the evidence Ad[id] not indicate that the vehicle turned and failed to signal before making such turn . . . only . . . that the vehicle did not signal.@

Standard of Review

The standard of review to be used by courts when reviewing driver=s license suspensions is established by section 2001.174 of the government code.[2] See Tex. Gov=t Code Ann. ' 2001.174 (Vernon 2000); Tex. Dep=t of Pub. Safety v. Nordin, 971 S.W.2d 90, 92 (Tex. App.BHouston [14th Dist.] 1998, no pet.) (citing Tex. Dep=t of Pub. Safety v. Mendoza, 956 S.W.2d 808, 810 (Tex. App.BHouston [14th Dist.] 1997, no pet.)). The statute provides, in pertinent part, as follows:

. . . a court may not substitute its judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion but:

(1) may affirm the agency decision in whole or in part; and

(2) shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(A) in violation of a constitutional or statutory provision;

(B) in excess of the agency=s statutory authority;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Tex. Gov=t Code Ann. ' 2001.174 (Vernon 2000). Thus, A >[t]o reverse an agency decision, the reviewing court must conclude (1) that the agency=s decision was erroneous for one of the reasons enumerated in subsections (A) through (F), and (2) that substantial rights of the appellant have thereby been prejudiced.= @ Nordin, 971 S.W.2d at 92 (quoting Tex. Dep=t of Pub. Safety v. Cantu, 944 S.W.2d 493, 495 (Tex. App.BHouston [14th Dist.] 1997, no writ) (emphasis in original)).

By its single issue, the Department contends the county court-at-law erred in finding there was not substantial evidence to support the administrative decision. The Department asserts the ALJ reasonably concluded that appellee violated the traffic laws when he failed to signal for a turn, which gave Thompson reasonable suspicion for the stop.

The governing statute calls for the mandatory use of signals Ato indicate an intention to turn, change lanes, or start from a parked position.@ Tex. Transp. Code Ann. ' 545.104(a) (Vernon 1999); see also Trahan v. State, 16 S.W.3d 146, 147 (Tex. App.BBeaumont 2000, no pet.) (plain language of the statute indicates signals are mandatory). Originally, this statute read in part, A[n]o person shall so turn any vehicle without giving an appropriate signal . . . in the event any other traffic may be affected by such movement.@ Act approved June 18, 1947, 50th Leg., R.S., ch. 421, ' 68, 1947 Tex. Gen. Laws 967, 979, amended by Act approved April 27, 1971, 62nd Leg., R.S., ch. 83, ' 31, 1971 Tex. Gen. Laws 722, 735 (current version at Tex. Transp. Code Ann. ' 545.104(a) (Vernon 1999)). Thus, under the former statute, a driver could fail to signal as long as traffic conditions were safe. See Willett v. State, 454 S.W.2d 398, 400 (Tex. Crim. App. 1970). However, the amendment in 1971, which was codified into our current law in 1995, omitted the language concerning the effect of a turn on other traffic. Act approved April 27, 1971, 62nd Leg., R.S., ch. 83, ' 31, 1971 Tex. Gen. Laws 722, 735.

The court of criminal appeals discussed this statutory change and held, A[i]t thus appears that turn signals are now mandatory, regardless of the traffic conditions at the time of the turn.@ Beck v. State, 547 S.W.2d 266, 267 (Tex. Crim. App. 1976). The issue resurfaced a year later and the court of criminal appeals reiterated, A[b]oth signal lights and hand and arm signals are appropriate . . . but contrary to the old provision, . . . one or the other signal is required regardless of other traffic.@ Praska v. State, 557 S.W.2d 83, 85 (Tex. Crim. App. 1977). Since then, several Texas courts have acknowledged that the use of turn signals is mandatory. See Howard v. State, 599 S.W.2d 597, 599 (Tex. Crim. App. 1979) (sufficient probable cause to authorize the initial stop is without question, given the failure to give a proper turn signal); Alonzo v. State, 67 S.W.3d 346, 355 (Tex. App.BWaco 2001, no pet.) (proceeding from parked position against a curb into traffic without using turn signal gave officer legal reason, probable cause, to stop); Walter v. State, 997 S.W.2d 853, 858 (Tex. App.BAustin 1999), rev=d on other grounds, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000) (because the officer saw a traffic violation of failure to properly signal before a turn, he had an objective basis for stopping).

Consequently, the fact that there is no evidence on the relative safety of the turn, or whether other traffic was affected is immaterial in this case. The evidence at the administrative hearing established that Thompson observed appellee fail to signal for a turn. The record reflects that the Department offered no evidence that appellee actually turned. Thompson=s offense report, which twice states that appellee Afailed to indicate a turn right,@ does not explicitly state whether or not appellee in fact turned. A violation of ' 545.104(a) does not occur by simply failing to signal because a driver might not intend to turn. The violation only occurs once the turn is made (without the use of a signal). Thus, proof of the turn is also necessary and no evidence of this was presented to the ALJ. The report by itself does not sufficiently describe the events leading to the stop so that the ALJ could infer that a turn was made.

In order to uphold a license suspension, an ALJ must find the Department proved the following issues by a preponderance of the evidence: (1) that reasonable suspicion to stop or probable cause to arrest the driver existed; and (2) that the driver was operating a motor vehicle in a public place and had an alcohol concentration of a level specified by section 49.01(2)(B) of the penal code. Tex. Transp. Code Ann. ' 524.035(a)(1)(A), (2) (Vernon 1999). AIf the administrative law judge finds in the affirmative on each issue . . . the suspension is sustained.@ Tex. Transp. Code Ann. ' 524.035(b) (Vernon 1999). Our review of the record establishes that the ALJ erred in concluding that the Department met its burden because, based on the evidence presented, there was not reasonable suspicion to stop Rodriguez.

The judgment of the county court-at-law is affirmed.

LINDA REYNA YA EZ

Justice

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

Opinion delivered and filed this the

1st day of August, 2002.

[1]See Tex. Pen. Code Ann. ' 49.04 (Vernon 1994 and Supp. 2002).

[2]The transportation code directs courts reviewing license suspensions to apply Tex. Gov=t Code Ann. Chapter 2001, Administrative Procedure Act. See Tex. Transp. Code Ann. ' 524.002 (Vernon 1999).