### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 6 -00 054 -CV

Te xa s D e par tm e nt of P ublic Safe ty , A ppe lla nt

v. Kat hy Lyn n Bi shop , Appellee

F ROM THE DISTRICT CO URT OF LEE COUNTY , 21ST JUDICIAL DISTRICT NO. 1296 6 , HO NORAB LE TERRY L. F LENNIK EN , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
The Te x as Department of Public Safe ty appea ls a district court’s judg ment reve rsing an administrative law judge ’s order suspending Kathy Bishop’s driver’ s license. The issue on a ppeal is whether substantial e vidence supported the a dminist ra t ive law judg e’s de termination that the poli ce h ad p ro b able c ause to a rre st Bishop for dr iving while intoxicated. We find that there was substantial evidence supporting the administrative l aw j u dg e’s de termination of proba ble ca use. Acc ording ly , we r ever se the district cour t’s judgme nt and re nder judg ment reinstating the administrative law judg e’s or der of suspension. On M ar ch 2 , 2 0 0 5 , at ap p ro x i m at el y 2 : 3 4 a. m . , Of fi ce r Lace y

W at t s o f t h e G i d d i n gs Police Depa

rtment observe d Bishop’s ve hicle traveling 66 mph in a 55 mph s p ee d z o n e. Offic er Watts in it iate d

a tr a f f ic s to p an d

a p p r o a c h e d

th e p a s s e n g e r

s id e o f th e v e h ic le
. Wi th

B is hop’s permission, Offic er Watts opened the passeng er door of the ve hicle. She testified at the administrative hea

ring , “[w]hen Iinitially

opened the door, I

could smell alcohol coming from inside2

the vehicle .” Of

fice r W atts identified the drive r of the ve hicle as K athy Bishop. She testified that Bishop exhibited slurred spee ch while telling Offic er Watts that sh e wa s on her way home from a

bar. Offic er Watts asked B ishop to ge t out of the vehicle and to stand in front of the patrol
car . She testified that “whe n [Bishop] exit ed the ve h i cl e s h e k i n d o f st umbled a little bit, kind of stag g ere d.” Of

fice Watts also obser

ved that Bishop’s e y es we re “ red a nd g lassy ” and that Bishop had “a strong odor of a

n alcoholic be vera g e comingfrom her breath.” Bishop admitted to Off icer Watts that sh e ha d c on sume d “ fo ur mixe d d ri nk s.” B ish op ha d d if

fi c ult ly fo llo wi ngsim

ple ins tr uc tio ns fo r p e rf

or min g the ho ri zon ta l g a ze ny sta g mus (H GN ) t e st. Ad dit ion a lly , O ff ic e r Watts te sti fi e d th a t B ish op e xhibi te d all six c lue s o f i nto xicatio n d ur ingthe a dmi nis tr a tio n o f t he HG N t e st. Be cause the g round whe re the traff ic s top occur

red was uneven, Offic er Watts decide d to administer the re ma ini ngfi e ld s ob ri e ty te sts a t th e po lic e statio n. She the n a rr e ste d B ish op fo r d

ri vin g wh ile intox icated, pla ced B ishop in the back of the pat ro l ca r, and drove to the police station. At the station, Bishop failed a

second administration of t he HGN test as well as t he walk-and-tur n test and the one- leg stand. Bishop re fused to provide a specimen of her breath for testing afte r beingwar ned that ref usal could re sult in t he suspension of he r driver ’s license
. At Bishop’s r equest, a

n administrative hea

ring was he ld on June 16, 2005, reg arding the license suspension. At the hea ring , the Depa

rtment introduced Offic er Watts’s sworn repor t, the statut or y wa rn ing , th e DWI

int e rv ie w, and

the fi e ld s ob ri e ty

te st sh e e t a s e vid e nc e . Of fi c e r Watts also testified at the hearing
. Bishop did not offe r any evidenc e. Counsel for B ishop cross-e x amined Of fi c e r Watts re g ard ingthe de ta ils of he r a dmi nis trati on of the H GNte st at th e sit e of the tr a ff ic sto p. Duri ng c los ing argume nts , c ouns e l fo r B ish op state d, “ the re ’s no e vid e nc e that [Of fi c e r Watts ]3

wa s c e rt if ie d to do the HG

N. An d s econ dl y , th e way [ Of fi c e r Watts ] did

the HG N,
. . . s he did

it wrong . And furthe rmore, Judge , as the Court knows, to establish probable cause y ou have to have
mor e tha n ju st the HGN .” Th e a dmi nis tr a tiv e la w j ud g e fo un d “ that pr ob a ble c a us e e xiste d to believe that [ Bishop] was oper ating a motor vehic le in a public plac e wh i l e i n t o x i cate d” and conclude d that Bishop’s lice nse wa s subject to suspension for 180 da y s. Bishop soug ht judicial reviewof the administrative dec ision. S he ar g ued in her trial br ie f t hat: [t]he re c or d in

the Ad min istrativ e he ari ngwa s d e vo id o f a ny e vid e nce that

wo uld support an ar

rest base d on probable cause for dr iving while intoxicated. The off icer only conducte d one fie ld sobriety test prior t o arr esting [Bishop] , that being the HGN. Ho we ve r, the re is no e vid e nc e that the of fi c e r is qu a lif

ie d to a dmi nis te r a

n H GNte st. There fore , there is no evidence of proba ble ca use to arr est [Bishop] . The mer e exis tence of an odor

of an a lcoholic beve rag e is not sufficient. T h ere was no ba d driving , other than speeding
. Any other clues of intox ication wer e n o t d ev el oped until at the police station. On October 26, 2 0 0 5 , th e tr ia l c o u rt r e v e r s e d th e a dmi n is tr a ti v e la

w ju d g e ’ s o r d e r

o f s u s p e n s ion without stating a ba sis. On appea l, the Depa rtment contends that the trial court err ed by reve rsing the administrative law judg e’s or der be cause (1) Bishop did not object to the admission of the HGN evidenc e or O ffice r Watts’s qualifications to administer t he HGN at t he adminis trative he aring , and (2) e ven without the HGN evidenc e, ther e wa s substantial evidence to support the administrative law judge ’s deter

mination that there was proba ble ca use to arr est Bishop for

driving while intox icated. Courts review ad m inistrative license suspe nsion decisions under the substantial evidenc e standa

rd. Mi re le

s v . Te x as De p’ t of Pu b. Sa fe ty , 9 S.W .3d 128, 131 (Tex. 1999); see T e x. Transp. Code A nn. § 524.041 (West 1999); Tex. Gov’t Code Ann. § 2001.174 (West 2000). A cour t applying the substantial evidence standard of revie w m ay not substitut e it s judgme nt for that of the administrative law judg e. Mireles , 9 S.W .3d at 131. The issue for the revie wing court is not whether4

the a dmi nis tr a tiv e law j ud g e ’s de c isi on wa s c or re c t, b ut on ly wh e the r the re c or d de mon str a te s so me
rea sonable ba sis for the administrative law ju d ge’s a ction. Id. Courts must affirm administrative finding s in contested c ases if the re is more than a sc intill a of e vidence to support them. Id. (citing Railroad Comm’n of Tex. v. T o r ch Operating Co. , 9 12 S.W. 2d 79 0, 79 2- 93 (T e x. 19 95 )) . T his Court’s revie w of the district c o u rt ’s d etermination is undertaken de novo. Texas De p’t of Pub. Sa fe ty v . Pru it , 75 S.W .3d 634, 640 (Tex. App.—San Antonio 2002, no pet.). I n E m e r s o n v . S tat e , 8 8 0 S.W .2d 759, 769 (Tex. Crim. App. 1994), the court of
c ri min a l a pp e a ls h e ld t

hat “ [f]o r t e sti mony

c on c e rn inga

de fe nd ant’ s pe rf

or manc e on the HG

N t e st to be admissible, it must be shown that the w itness testify ing is qualified as an expert on the HG N test, specific ally

conce rning its administ ration and te chnique.” Howeve r, error in the admis sion of testimony reg ardingHGN e vid en ce re q uires re versa l only when the e rror

“had a substantial and injurious effe ct or influenc e” on the fac t-finder or t h e v er dict. El lis v . S tate , 86 S.W .3d 759, 762 (T ex . Ap p . —W ac o 2 0 0 2 , p et
. re f’ d ) ( qu o t i n g Kin g v . S tate , 953 S.W .2d 266, 271 (Tex. Crim. App. 1997)). In El lis , the def

endant a ppeale d his c onviction for drivingwhile intox icated, a rg uing that the arr e sti ngof

fi c e r s ho uld

no t ha ve be e n a llo we d to te sti fy a bo ut a dmi nis te ri ngthe HGN te st beca use he w as not qualified a s an expert on the HGN t es t i ng and bec ause the office r did not proper ly administer the HGNtest. Id. at 761. The Wac o court of appea ls found t hat the trial c ourt abused its discr etion in a dmitti ng the arr esting office r’s testimony beca use he w as not qualified a s
an expert pursuant to Emerson
. Id. Howeve r, the c ourt conc luded that the admission of the a rre sting of fi c e r’ s te sti mony

wa s h arm le ss e rr or

be c a us e the e vid e nc e sh ow e d th a t, at th e tim e of the arr e st, the def endant ha d a strongodo r o f an a lcoholic beve rag e on his breath, his speech wa s slow and slurred, he stag g ere d and los t his balance when he exit ed his ca r, there was c old beer

inside the ca

r5

when the of

fice r pulled him ove r, he admitted he had bee n drinking , he did not follow instructions on the one- leg stand and the he ad-tilt tests, and he re fused to g ive a br eath sample. Id. at 762.

I n this case, B ishop argued at the tr ial co u rt that the evidenc e of the HGN test wa s i n s u f f i c i e nt t o e s t a bli shpr ob a

ble c a us e be c a us e the re wa s n o e vid e nc e e sta bli sh ingthat O ff

ic e r Watts was qua lified to administer the HGN test. This argument assumes t hat evidence of the HGN te st was the only evidenc e conside red by the administrative law j udg e in deter mining proba

ble ca use. “Probable cause exis ts when the fa cts and c ircumstance s within an office r’s pe rsonal knowledg e and of wh ic h he ha s re a so na

bly tr us tw or thy inf or matio n a re su ff ic ie nt t o w arr ant a

pe rs on of re a so na ble caution in the belief that, more li kely than not, a par

ticular suspec t has committed an off ense.” Sta te v. G ar rett , 2 2 S. W. 3 d 6 5 0 , 6 5 3

- 5 4 ( T e x. A p p . — A u s ti n 2 0 0 0 , n o p e t. )
. Pr o b a b le c a u s e mu s t be examined in light of the totality of the c ircumstance s established by the evidenc e. Id. T h e r ec o rdo f t h e a dm i n i s t r a t i v e h ea ri n g re fl ec t s t h at t h e a dm i n i s t ra t i v e l aw j u d ge found:
that pr ob a

ble c a us e to a rr e st [B ish op ] exis te d, in t hat pr ob a ble cause e xiste d to believe [Bishop] was oper ating a motor vehicle in a public place while intox icated, beca use, . . . prior to a

rre st, t h e off

icer observe d the following indications of intox ication when the office r obser ved [Bishop] on the scene: whose vehicle sme lled str on g ly of an a lc oh oli c be ve ra g e ; w ho sta g g e re d a s sh e e xite d h e r v e hic le ; w ho se speec h was slurre d; who stated that she ha d just l ef t a b ar ; who admitted to the c on sumpt ion

of fo ur “ mixe d d ri nk s” ; w ho se e y e s we re re d and g la ssy ; wh os e br e a th smelled strong ly

of an al co h o lic bever ag e; who swa y ed as she stood; who had difficulty following the offic er’ s s i m p l e directions to hold her hea d still for the horizontal ga ze ny stag mus field sobriety ey e-te st, moving her

head when she w as supposed to be moving her e y es only and holding her he ad still.
On thi s r e c or d, the re wa s e vid e nc e e stab li sh in g p roba ble c a us e to a rr e st B ish op fo r d

ri vin g wh ile intox icated at the time of the traf fic stop other th an the re sults of the HGN test conduc ted at the6

sc e ne . T he a dmi nis tr a tiv e law j ud g e did no t r e ly so le ly on the HG N e vid e nc e to e sta

bli shpr ob a

ble
cause for he r ar

rest. Instead, the ad m i n i s t ra tive law judg e conside red the totality of the
c ir c ums tanc e s at th e tim e of B ish op ’s arr e st, inc lud ingthe fa c t th a t B ish op ’s ve h i c l e s me lle d s tr on g ly of a lc oh ol, tha

t sh e e xhibi te d s lur

re d s pe e c h a

nd sw ay ed as sh e sto od , th a t sh e a dmi tte d to consuming four “ mix ed drinks,” that she told Of fice r Watts that she had just left a bar , that her e y es
wer e re d and g lassy , and that her breath sme lled strong ly of alcohol. Fur thermore , it se ems that the
a dmi nis tr a tiv e law j ud g e c on sid e re d only B ish op ’s ina bil ity to f oll owdir e c tio ns duri ngthe HG N t e st
and no t th e res ult s o f t

he HG N t e st i n h e r d e te rm inatio n o f p ro ba ble c a us e . U nd e r t

he se circ umstances, we conclude that even if the administrative law judg e abuse d her discr etion by admitting unqualifie d testimony from Offic er Watts conc erning the HGN evidenc e, the admission of this testimony did not have a substantial or injurious eff ect on the a dminist rative de cision. Any
err or in the admission of Offic er Watts’s testimony reg ardingthe HGN e vidence was ha rmless err or. Be cause the re cord c ontains substantial evidence to support the adminis t rative la w jud g e ’s de te rm inatio n o f pr ob a ble c a us e to ar re st B ish op fo r d

ri vin g wh ile int oxic a te d, we re ve rs e th e j u d gm ent of the district court and re nder judg ment reinstating the administrative law judg e’s order of suspension.

________________________________________________ G. Alan Waldrop, Just ice Be fore J ustices Pemberton, Waldrop and B . A. Smith* Reverse d and Rende red Filed: January

22, 2007 * Be fore Be a Ann Smith, J ustice (r etired) , Third Court of Appe als, sitting by assig nment. See T e x. Gov’t Code Ann. § 74.003( b) (West 2005).