### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00602- CV

Texas Depart m ent of Public Saf ety, A ppellan t

v. Evan Grant Botsford, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 2 O F H AY S CO UNTY NO. 13- 0100 -C, H ONO RAB LE LINDA RO DRIGUEZ , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant th e T e xa s Depa rtment of Public Safety (DPS) appea ls from a county -courtat-law judgme nt reve rsing the administrative suspension of appellee Evan Gra nt Bo t sford’s driver’ s license. An administrati v e l aw judge (AL J ) had previously upheld the suspension based on Botsfor d’s re fusal to submit to an alcohol conc entration test afte r being stopped for violating a San Marc os city ordinanc e. We will reve rse the county court at law’s judgme nt and rende r judgme nt aff irming the AL J ’s orde r sustaining the administrative suspension. Background At about 1:00 a.m. on Au gust 11, 2012, Texas State University Serg eant J ason Moreno was assist i n g an o t h er police office r with a traff ic stop in the parking lot of Palmer’s Restaura nt at the intersec tion of Hutchison and Moore streets in San Marc os, Texa s . Du ri n g that stop, Serg eant Moreno observe d Botsfor d “pee l out” or “bre ak [hi s veh icle’s] tires from thepaveme nt” from a traff ic light at the intersec tion of Moore and Hutchison streets. Serg eant Moreno believed that Botsfor d’s actions violated a San Marc os city

ordinanc e that made it “unlawful for a person to operate a motor vehicle in a public place in a manner that cause s any of the whee ls o f the vehicle to spin or slide acr oss the g round without normal trac tion.” San Marc os, Tex., Code of Ordinanc es § 82.006. Acc ording ly , Serg eant Moreno fol lowed Botsfor d, catc hing up with him

near the “1500 B lock of Ranc h Road 12” and stopping him in the “100 block of H ug hson Street.” During the ensuing traff

ic stop, Serg eant Moreno beca me suspicious that Botsfor d was intox icated and perf ormed field sobriety tests on Botsfor d. As a result o f t h es e tests, Serg eant Moreno conclude d that Botsfor d was intox icated and arr ested him. Botsfor d ref used to submit to an alcohol

conce ntration test at the sce ne, which tr igg ere d an automatic suspe nsion of his driver’s license for 180 day s. See Tex. Transp. Code §§ 724.031–.35(a )(1)

.

Botsfor d soug ht an administrative revie w of the suspension of his driving privileg es befor e an administrative law judge (AL J ) with the State Offic e of Administrative Hea ring s. At the resulting contested case hearing, DPS had the burden to pr ove by a pre pondera

nce of the evidenc e that— (1) rea sonable suspicion or pr obable c ause e x isted to stop or arre st [ Botsfor d]; (2) probable cause exis ted to believe that [ Botsfor d] was . . . ope ratinga motor vehicle in a

public place while intox icated . . . ; (3) [Botsford] was place d under arr est by [S erg eant Moreno] and was reque sted to submit to the takingof a spe cimen; and (4) [Botsford] ref

used to submi t t o t h e t aking of a specimen on reque st of [S erg eant More no].

2See Tex. Transp. Code § 724.042 (issues at hear ing)

. Serg eant Moreno testified at the administrative

hear ing, and his sworn repor ts reg arding the incident wer e enter ed into evidenc e. After the hear ing, the AL J issued an administrative de cision incorpora ting the f ollowing f

indings of f

act: 1) On August 11, 2012, reasona ble suspicion to stop the Def endant exis ted, in that: The arr esting office r observe d the Def endant’ s vehicle “pee ling out” on the roadw ay in violation of city ordinanc e. Def endant was operating a Dodg e Ram on Moore Street in the city of San Marc os, Hay s County , Texas, at the time of the violation. 2) On the same date, probable cause exis ted to believe that Def endant was operating a motor vehicle in a public place whi le intox icated, beca use in addition to the fac ts in No. 1, the Def endant had: red bloodshot ey es, slurred speec h, and an odor

of alc ohol coming f

rom Def endant’ s breath. 3) The arr esting office administered field sobri et y t est s on the Def endant and observe d the following : six of six clues on the Horizontal Gaze Ny stag mus test. Defe ndant re fused to per form any other tests. 4) Def

endant wa s arr ested a

nd was a sked to submit a specimen of br eath. 5) After

beingreque sted to submit a specimen of br eath, De fenda nt refuse d.

Ba sed on these finding s, the AL J conclude d that DPS had satisfied its burden of p ro of under the Tra nsportation Code, see id. , and sustained DPS’s 180-da y administrative suspension. See id. § 7 2 4

. 0 4 3 ( a ) ( r e q

u iring AL J to sustain suspension order upon aff irmative finding s of section 724.042 elements). Botsfor d appea led his suspension to the County Court at L aw a s allowed unde r the Transpor tation Code. See id. §§ 724.047, 524.041(a) –(d). In his appea l to the County Court at L aw, Botsfor d argued that the AL J err ed in concluding that Serg eant Moreno had rea sonable suspicion for the traff ic stop—i.e., the first of the four e lements of DPS’s burden, see id. Specifica lly , Botsfor d

3argued that the AL J ’s finding of rea sonable suspicion was improper beca use (1) Serg eant Moreno’ s

acc ount of the incident, including his descr iption of Botsfor d “pee ling out,” provided no articula ble fac ts to support the conclusion that Botsfor d had violated a San Marc os city ordinanc e, and (2) DPS failed to prese nt any evidenc e that t h e al leg ed violation of a San Marc os ordinanc e occur red within the San Marc os city limit s. After a hear ing, the County Court at L aw vacated the AL J ’s order without stating the basis for the ruling

. On appea l, D PS challeng es both g rounds of objec tion that Botsfor d prese nted to the County Court at L aw.

Analysis An AL J ’s decision to suspend a driver’ s license is revie wed under section 2001.174 of the Texas Administrative Procedur e Act. See Mireles v. Texas Dep’ t ofPublic Safety , 9 S.W .3d 128, 131 (Tex. 1999) (per cur i am ). Section 2001.174 require s that a revie wing court reve rse or

rema nd a case for further proce eding s “if s u b s t an t i al rig hts of the appellant have been prejudice d beca use the a dminist rative f

indings, infe renc es, conc lusions, or decisions” ar e (A) in violation of a constitutional or statutory provision; (B ) in excess of the ag ency ’s statutory authority ; (C) made through unlawful proc edure ; (D) aff

ecte d by other e rror

of law; (E) not rea sonably supported by substantial evidenc e considering t h e reliable and probative evidenc e in the re cord a s a whole; or (F ) arbitra

ry or capr icious or char acte rized by abuse of discretion or clea rly unwar rante d exercise of

discretion.

4Tex. Gov’t Code § 2001.174(2). Howeve r, the revie wing court may not substitut e its judgme nt for

that of t he age ncy ’s on the weight of the evidence on matters committed to ag ency discretion. Id

. Wit h respe ct to subpara g raph (E), “sub s t an t i al evidenc e” does not mean a larg e or considera ble amount of evidence, but such relevant evidence as a reasonable mind might acce pt as adequate to support a conclusion of fa ct
. Pierce v. Underwood , 487 U.S. 552, 564–65 (1988); Lauderdale

v. Texas Dep’ t of

Agric. , 923 S.W .2d 834, 836 (Tex. A pp.—Austin 1996, no writ). The test is not whether the ag ency made the corr ect conclusion in the revie wing court’s view, but whether some

rea sonable ba sis ex ists in the record for t he age ncy ’s action. See M ireles , 9 S.W .3d at 131 (c iting City of El Paso v. Pu b l ic Util. Comm’n , 883 S.W .2d 179, 185 (Tex. 1994)). A revie wing court must uphold an ag ency ’s finding even if the evidenc e ac tu al l y preponde rate s ag ainst it, so long

as enoug h evidenc e sug g ests the ag ency ’s deter mination was within the bounds of rea sonablene ss. See id. The question of whether there is substantial evidenc e to support an administrative decision is a question of law that we revie w de novo. See Texas Dep’ t of Pub. Safety v. Alford , 209 S.W .3d 101, 103 (Tex. 2006). Did Sergeant Mor eno have reasonable susp icion f or the t raff

ic stop? In its first issue o n appea l, DPS argues that the evidenc e—i.e., Serg eant Moreno’ s testimony and sworn repor ts—e s t ab l i s hes that Serg eant Moreno had a rea sonable suspicion to believe that Botsfor d violated the San Marc os city ordi n an ce m aking it unlawful to operate a motor vehicle in a manner that cause s any of t h e wh ee l s o f the vehicle to spin without normal trac tion. See Ford v. State , 158 S.W .3d 488, 492 (Tex. 2006) (n o t ing that office r may initiate

5temporar

y detention, such as traff

ic stop, when he has rea sonable suspicion to believe that individual is violating law) . We ag ree .

Reasonable suspicion exis ts when, based on the totality of the circ um s t an ce s, the office r has specific articula ble fac ts that, when combined with rational infere nces from th o se fa cts , would lead the office r to believe that an individual is, has been, or soon will be en gage d i n criminal activity

. Id. at 492. Offic er Moreno stated in his incident repor t that he stopped Botsfor d afte r “obser

v[i ng Botsfor d’s vehicle] brea k its t i re s fr o m the paveme nt, known as ‘pee ling out,’” beca use “bre ak[ing] y our tir es fr o m the paveme nt” is a “city ordinanc e violation.” L ikewise, Serg eant Moreno testified at the hear ing t h at he initially noticed Botsfor d when he hear d “[h] i m peeling out on his tires or wre cking his tires from the ceme nt at the light, or acc eler ating way too quickly .” As noted, the San Marc os Code of Ordina nces makes it “unlawf

ul for a person to operate a motor vehicle in a public plac e i n a m an n er that cause s any of the whee ls of the vehicle to spin or slide acr oss the g round without normal trac tion.” See San Marc os, Tex., Code of Or d i n an ce § 82.006(b). Despite Botsford’s arguments to the contrary , we hold that “pee ling out” i s a phrase commonly used to descr ibe when a vehicle acc eler ates so quickly that its tires los e trac tion, spin, and make a squealing noise. I t is such a common phra se and so r eadily understood, in fac t, that its use requires no e x planation. Acc ording ly , Serg eant More no’s desc ription of what 1 See, e.g. , Rice v. State , 333 S.W .3d 140, 141 n.2 (Tex. Crim. App. 2011) (using “pee led 1 out” without definition or explanation); W ilson v. State , 863 S.W .2d 59, 64 (Tex. Crim. App. 1993) (using ph rase “pee ling out” multipl e ti mes without definition or ex planation); Thompson v. Stat e , No. 04–12–00557–CR, __S.W .3d__, 2014 WL 300955, at *3–6 (Tex. App.—S an Ant onio 2014, no pet. h.) (same) ; F

er n a n dez v. State , 306 S.W .3d 354, 358, 361–62, 364, 369 (Tex. App.—For t Worth 2010, no pet.) (same) ; Boget v. State , 40 S.W .3d 624, 625–26 (Tex. App.—San Antonio 2001), affirmed by 74 S.W .3d 23 (Tex. Crim. App. 2002); Colli ns v. Sta t e , 8 2 9 S

. W

. 2d 894, 895 (Tex. App.—Dallas 1992, no pe t.) (using“pee led out” without specific definition). 6he saw or hear d here —i.e., that Botsfor d peele d out f rom a red light and acc eler ated quickly down the street—c onstitut es a violation of the San Marc os city ordinanc e 82.006. And when observe d by

an office r, such an act supports the conclusion that a traff ic stop was ju s t i fi ed b y a reasonable suspicion. See S t ate v. Elias , 339 S.W .3d 667, 675 (Tex. Crim. App. 2011). As such, Serg eant Moreno’ s repor

ts and testimony provide a rea sonable basis for th e AL J ’s finding that Serg eant Moreno had rea sonable s u s p i ci o n t o stop Botsfor d for violating the ordinanc e in question. We sustain DPS’s first iss ue.

Was there sub stantial evidence that the violation occ urred withi n San Marc os city lim its?

In its second issue on appea l, DPS addre sses Botsfo r d ’ s c halleng e that DPS had failed to prese nt any evidenc e to the AL J that the alleg ed violation of San Marc os’ city ordinanc e occur red within San Marc os city limit s. Specifica lly , DPS contends that there is substantia l evidence in the record to support the AL J ’s findi ng that Botsfor d’s vi olation of t he ordinance occurr ed withi n San Marc os city

limit s. We ag ree . As the fac t fi n d er in an administrative hear ing, the AL J is permitted to draw

rea sonable infere nces from the evidenc e. See T ex . Go v ’t Code § 2001.174 (making infere nces revie wable) ; Texas He alth Facilities Comm’n v. Charter Med.- Dallas, Inc. , 665 S.W .2d 446, 453 (Tex. 1984) (same)

. In this case, a lthough ther e is no specific ref ere nce to the City of San Marc os in connec tion with Botsfor d’s violation, there is evidenc e to support a rea sonable infere nce that the violation occurr ed in San Marc os, Texas:

• Serg eant Moreno, an offi cer of Texas State University ’s police depar tment, was assisting with a traff

ic stop in the parking lot of Palmer’s Restaura nt at the intersec tion of Hutchison and Moore streets whe n he hea rd or obse rved B otsford pee l out; 7• Botsfor d’s vehicle was depar ting from a traff

ic light on the northbound side of Moore Street wher e it intersec ts with Hutchison St ree t when he pe eled out;

• Serg eant More no believed tha t Botsford’ s actions violated a San Ma rcos c ity ordinanc e;

• S erg eant Moreno followed Botsfor d and caught up with him in the “1500 block of R an ch Road 12”; and

• Serg eant More no stopped Botsfor d in the “100 block of Hug hson Street.”

Ba sed on this evidenc e, the AL J could have rea sonably inferr ed that Serg ean t Moreno wit n es s ed Botsfor d peel out inside San Marc os city limit s (and thus, Botsfor d’s actions would constitute a violation of San Marc os ordinanc e). See Bende r v. St ate , 739 S.W .2d 409, 412 (Tex. App.—Houston [14t h Dist.] 1987, pet. ref ’d) (holding that office r’s descr iption of addre sses and interse ctions provided cir cumstantial evidenc e that ar rest occ urre d in Houston, Texas). In the alternative, the AL J could h ave taken judicial notice of the fac t that the incident took place in S an M ar cos. Texas Rule of Evidence 401 allows a court to take judicial notice, whether reque sted or not, of a fa ct “g ener ally known within the territoria l jurisdiction of the trial court” or a fact “c ap ab le of acc urate and rea dy deter mination by resor

t to source s whose

acc urac y cannot rea sonably be questioned.” The AL J , by resor t to o btainable, acc urate ref ere nce

source s, could rea dily confirm that there is a Palmer’s Restaura nt located at the intersec tion of Moore and Hutchison streets in San Marc os, Texas; and that the 1500 block of old Ranch Road 12 and the 100 block of Hug hson are located in San Marc os. See id. (noting that court could take judicial

n o t ice that the addre sses and intersec tions descr ibed by office r wer e located in Houston , T ex as ). Acc ordin gl y , there is sufficie nt evidenc e in the record to provide a rea sonable basis for the AL J ’s deter mination that Botsfor d’s actions occur red in San Marc os, Texas, thus constituting a violation

8of San Marc os city ordinanc e and supporting Serg eant Moreno’ s rea sonable suspicion or probable

cause to stop Botsford. We sustain DPS’s second issue on appe al.

Conclusion Having sustained DPS’s two issues on appea l, we reve rse the trial court’s judgme nt and re nder judg ment reinstatingthe AL J ’s suspension of B otsford’s lice nse.

__________________________________________ J eff Rose, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Reverse d and Rende red Filed: Mar ch 7, 2014

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