### 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. 03-10-00070- CV
Clay McC oy Crawf

ord, Appellan t
v. Texas Depart m ent of Public Saf ety, A ppellee

F ROM CO UNTY COURT AT LAW NO . 1 O F CO MAL CO UNTY NO. 200 9-CV- 0529 , H ONO RAB LE RANDAL C. GRAY, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Clay McCoy Crawf

ord appea ls a judgme nt upholding the suspension of his driver’ s license. Crawf

ord wa s arr ested for

driving while i ntox icated (“DWI ”), see Tex. Penal C ode Ann. § 49.04 (West 2003), and ref used t o provide a brea th specimen for analy sis of his blood alcohol content. Acc ordin g ly , the Texas Depa rtment of Public Safety (“D PS”) suspended Crawf ord’s driver’ s license. See Tex. Transp. Code An n . § 7 2 4 .035 (West 2011). Crawf ord soug ht administrative revie w of the suspension. See id

. § 724.041 (West 2011). An admi nistrative law judge issued an order sustaining the suspension. See id

. § 724.043 (West 2011). Crawf ord soug ht judicial revie w of the order

. See id

. § 524.041 (West 2007). The county co u rt at law issued a judgme nt affir

ming the or der. We a ffirm the c ounty court a t law’s judg ment.F ACTUAL AND P ROCEDURAL BACK GR OUND A t a p p r o xim a te ly 1 0 :4 0 p . m. on May 15, 2009, Comal County Sheriff’ s Deputy Fr ank Cockrell observe d C ra wford driving a truck with a boat in tow. Cockrell later wrote in a sworn repor t that he saw Crawf

ord’s “vehic l e” swerve sever al times into the oncoming -traf fic lane, sometime as much as two or three fee t, and then saw “a larg e cloud of smoke come from the rea r of the vehicle.” Cockrell also wrote in his sworn repor t that he bec ame “ conce rned tha t the opera tor was ha ving dif

ficulty maintaining c ontrol of the vehic le.” The repor t does not clar ify whether the term “ve hicle” r efe rs to the truck or the boat. Cockrell stopped Crawf

ord and approa ched his truck to speak with him. Acc ording to his repor

t, when Cockrell did so he noticed that Crawf ord slurred his speec h and smelled strong ly of alc ohol. Cockrell aske d Crawf ord how much a lcohol he had consumed that day , and Craw ford responde d, “I probably shouldn’t have had what I had.” Cockrell asked Crawf ord if he felt he had 1 consumed too much to drive, a nd Crawf ord re sponded, “I

can ma ke it home.” Cockrell administered three field sobriet y te s ts to Cr awf

ord. Crawf

ord exhibi ted four of six possible sig ns of intox ication on the Hor izont al Gaze Ny stag mus te st, f our of eig ht possible signs of intox ication on the Walk and Turn test, and one of four possible signs of intox ication on the On e-L eg Stand test. After administering the tests, Cockrell arr ested Crawf ord for DWI and transporte d him to the Com al County jail.

The details of this exchang e are contained in Cockrell’s sworn repor t. DPS introduced the 1 repor t into evidence at the administrative hea ring without objection from Crawf ord. 2After arr iving at the jail, Crawf ord ref used to provide a brea th specimen for analy sis of his blood alcohol content. DPS there fore suspended his driver ’s license

. See id . § 724.035.
STANDARD OF REVIEW We r e v ie w a d

mi n is tr a ti v e li c e n s e - s u s p e n s io n d e c is io n s u n d e r th e s u

b s ta n ti a l- e v id e nce standard. Mireles v. Texas Dep’ t of Pub. Safety , 9 S.W .3d 128, 131 (Tex. 1999) (per curia m). This

means we will aff

irm an administrative license- suspension decision if the rec ord dem o n s t ra tes a
rea sonable basis for the decision. Id . We may not substit ute our judg ment for that of the ag ency . Id

. Rather, we must aff

irm the ag ency ’s decision if more than a scintilla of evidenc e supports it. Id

.

DISCUSSIO N Craw fo rd contends that the trial court err ed by aff irming his license suspension beca use the rec ord contains insufficient e vidence that Crawf ord committed an “ identifiable tra ffic violation,” which means that Cockrell lacke d rea sonable suspicion to stop and detain him. Crawf ord makes seve ral a

rg uments in support of this contention. First, Crawf

ord arg ues that Cockrell’s failure to identify which “vehic le”—the truck

or the boat trailer—sw erve d into the oncoming -traf fic lane is “cr

ucial, as it is fore seea

ble that a boat trailer could swerve s l i gh t l y , even without intentional movement by the towing vehicle.” Thus, arg ues Crawf

ord, Cockrell’s “f

ai l u re t o adequately descr ibe the vehicle makes it impossibl e to deter mine whether an identifiable traff ic violation wa s co m m i tted.” This arg ument fails for two
rea sons. F irst, Coc krell’s repor t sta ted that Crawf

ord’s “vehic le” e mitted a larg e cloud of smoke. The administrative law judge could rea sonably infer that Crawf ord’s truck was more likely to emit
3a cloud of smoke than the trailer it was towing. See id

. (we aff irm administrative law judge ’s decision if it has rea sonable basis in rec ord). S econd, in statutes reg ulating road traff ic, the term “vehic le” applies to both trucks and trailers. See Tex. Transp. Code Ann. § 541.201(23) (West 2011) (“ve hicle” means “a device that can be used to transport or draw persons or proper ty on a highw ay ”). Thus, if Crawf

ord violated a statute by swerving his “vehic le” i n t o the oncoming -traf fic lane, he violated the statute re g ardle ss of whethe r he swe rved his truc k or his boat trailer

.

Next, Crawf

ord arg ues that Cockrell’s repor t sug g ests Cockrell might have stopped Crawf ord not for a specific traff ic violation, but rathe r “out of co n ce rn for [hi s] well being .” See Hernande z v. State , 983 S.W .2d 867, 870 (Tex. App.—Austin 1 998, pet. ref ’d) (off icer lacke d

rea sonable suspi cion t o stop driver where only articula ted reason for stoppin g d ri v er was concer n for driver’ s well being ). This arg ument fails beca use Cockrell’s repor

t contains detailed descr iptions of err atic driving

. Cf. id

. The administrative law judge could rea sonably infer that these descr iptions

wer e meant to ref

lect o n e o r more specific traff ic violations rathe r than a g ener alized conce rn for Crawf ord’s we ll being. See M

ireles , 9 S.W .3d at 131. Next, Crawf

ord makes two arg uments based on the assumption that if he committed any traff ic violation it must have been failure to maintain a single lane. See Tex. Transp. Code Ann. § 5 4 5
. 0 6 0(a) (West 2011) (if roadw ay is divided into two or more clea rly marke d lanes, moto ri s t “shall drive as near ly as prac tical entirely within a s i n gl e l an e”)

. I n the first of these arg uments, Crawf ord asser ts that b ec au s e Cockrell did not specify how many times Crawf ord’s “vehic le”

swerve d into the oncoming -traf fic lane, Cockrell failed to establish that C ra wf ord committed the offe nse of failing to maint ai n a s i ng le lane. I n support of this arg ument, Crawf ord cites State v.

4Arriaga , 5 S.W .3d 804, 807 (Tex. App.—San Antonio 1999, pet. ref ’d), in which the court held that

an office r lacke d rea sonable suspicion to stop a motorist partly beca use the office r could not r eca ll how many

times he saw the motorist’s vehic le drift within its lane. Second, Crawf

ord arg ues that safe ty is the overr iding conce rn of the statute requiring motorists to maintain a single lane, an d C ockre ll’s repor t did not sug g est that Crawf ord cre ated a dang erous or unsafe condition by swerving

. See T ex . T ra n s p. Code § 545.060(a) (motorist may “move from th e lane [i f] that movement can be made safe ly ”); Hernande z , 983 S.W .2d at 871 (“[W] ith respe ct to a vehicle’ s stray ing over a lane marke r, a traff ic violation occur s only when the vehicle’ s movement i s in some way unsafe .”). Thus, Crawf ord arg ues, C ockre ll’s repor t failed to show that Cockrell had rea sonable suspicion to stop Crawf ord for failing to maintain a single lane. The problem with these arg uments is tha t the offe nse of failing to maintain a single l ane applies when a motorist crosse s the line “adjoining two lanes of traff ic flowing the sam e d i re ction.” See Texas Dep’ t of Pub. Safety v. Chang , 994 S.W .2d 875, 878 (Tex. App.—Austin 1 9 9 9 , n o p et
. ). When a motorist crosse s into a lane of oncoming traff ic, as Crawf

ord did, the applicable offe nse is failure to drive on the righ t -h an d side of the road. See id

. A motorist must drive on the rig ht-hand side of the road unles s o n e of the following circ umstances exis ts: the motorist is passing another vehicle, an obstruction nece ssitates moving to the left of the cente r of the road, the motorist is on a road divided into three marke d lanes, or the motorist i s on a roadw ay restric ted to one-w ay

traff ic. Tex. Transp. Code Ann. § 545.051( a) ( West 2011). I f none of the se circ umstances exis ts, then a single instance of crossing into the oncoming -traf fic lane on a two-lane road is a violation of the statute. See Bracke n v. State , 282 S.W .3d 94, 98 (Tex. App.—For t Worth

52009, pet. ref ’d); Rubec k v. State , 61 S.W .3d 741, 745 (Tex. App.—For t Worth 2001, no pet.) (op.

on reh’ g ). A violation of the statute cre ates rea sonable suspicion justify ing a stop. See Bracke n , 282 S.W .3d at 98. Unlike a violation f or failing to ma intain a single lane, a violation for failing to drive on the rig ht-hand side of the road does not require an unsafe maneuve r. Compare Tex. Transp. Code § 545.051(a) with Tex. Transp. Code § 545.060(a ).

Be aring all this in mind, the administrative law judge could rea sonably conclude that Cockrell had rea sonable suspicion to stop Crawf ord for failing to drive on the rig ht-hand side of the road. See id

. § 545.051(a)

. Cockrell’s repor t states that Crawf

ord crosse d into the oncoming -traf fic lane multipl e times. See Bracke n , 282 S.W .3d at 98 (off icer had rea sonable su s p i ci o n to stop motorist for violating transporta tion code section 545.051(a) wher e office r saw motorist cross into oncoming -traf

fic lane once)

. Ther e i s no indication (and Crawf ord makes no arg

ument) that a circ umstance exis ted that allowed Crawf ord to cross leg ally into the oncoming -traf fic lane even once, let alone repe atedly

. Thus, Cockrell’s repor t was a rea sonable basis for the administrative law 2 judge to conclude that Cockrell had rea sonable suspicion to stop Crawf ord for failing to drive on the rig ht-hand side of

the roa d.

Crawf ord does arg

ue that Cockrell did not specify whether Crawf ord swerve d in a passing 2 or no-passing zone. Whil e it is true that Crawf ord could have leg ally moved left to pass other vehicles if he was in a passing zone, see Tex. Transp. Code Ann. § 545.051(a) (West 2011), Cockrell descr ibed C ra wford’ s driving as “ swerving sever al times to the left.” (Emphasis added.) I t was rea sonab l e for the administrative l aw judge to interpre t the t erm “swerving ” as being inconsistent with a leg al, delibera te passing maneuve r, espec ially g iven that Crawf ord swerve d “seve ral times.” This conclusion is reinfor ced by the fac t that Crawf ord’s driving made Cock re l l “conc ern[ed] for [C raw ford’ s] well being ”; the administrative law judge could rea sonably infer that if Crawf ord had made leg al, deliber ate pa ssing mane uvers, Cockr ell would not have be en conc erne d. 6Even i f C o ckrell’s repor t did not justify a finding that Cockrell had rea sonable suspicion to stop Crawf

ord for failing to drive on the rig ht-hand side of the road, the repor t justified

a finding that Cockrell had rea sonable suspicion to stop Crawf ord for DWI
. Whether an office r has

rea sonable suspicion to stop a motorist for DWI depends on the totality of the circ umstances. Curtis

v. State , 238 S.W .3d 376, 380 (Tex. Crim. App. 2007). A stop for DWI is justified when the office r has specific articula

ble fac ts that, taken toge ther with rational infere nces from those fac ts, lead him to conclude that a motorist is driving under the influence

. See id

. at 380-81. Observing a motorist’s

car weav i n g i n and out of i ts lane severa l times, over a short distance, late at ni g ht, g ives rise to a rational infere nce that the motorist is intox icated. Id

. at 381. Thus, on the basis of the observa tions

rec ounted in Cockrell’s repor t, the administrative law judge could rea sonably conclude that Cockrell had re asonable suspicion to stop C raw ford f or DWI
. I n sum, there wer e multipl e bases on which the administrative l aw j udg e could

rea sonably conclude that Cockrell had rea sonable suspicion to stop Crawf ord. I t follows that the trial court did not err by aff

irming the administrative law judge ’s order suspending Crawf ord’s license. See Mireles , 9 S. W
. 3 d at 131 (cour ts must aff

irm administrative law judge ’s order if it has

rea sonable ba sis in record) . We affir m the judgme nt.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med Filed: June 16, 2011
7