COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00020-CV

STEVEN FRANK BARNES APPELLANT

V.

TEXAS DEPARTMENT OF PUBLIC 

SAFETY

APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY

----------

MEMORANDUM OPINION1

----------

In one point, appellant Steven Frank Barnes appeals the trial court’s order 

affirming an administrative law judge’s (ALJ’s) decision that suspended his 

driver’s license for 180 days. We affirm.

 1

See Tex. R. App. P. 47.4.
2

Background Facts

According to written reports that the ALJ admitted without objection, one 

early morning in August 2012, Officer Matthew Bender was traveling on an 

interstate highway when he saw appellant driving in the center lane while going 

forty-three miles per hour in a posted sixty miles-per-hour zone. Appellant 

increased his speed to fifty-eight miles per hour, decreased his speed again, and 

swerved within “the center lane and slightly . . . into the left and right lanes” 

multiple times. Officer Bender pulled appellant over.

Upon getting out of his car, appellant sweated heavily, smelled like alcohol, 

and gave evasive answers to Officer Bender’s questions. Appellant refused to 

perform standardized field sobriety tests or to provide a sample of his breath or 

blood for testing, despite being warned that his driver’s license could be 

suspended for refusing to do so.

After a hearing that appellant requested, the ALJ issued a written decision 

suspending appellant’s driving privileges for 180 days.2

 In the decision, the ALJ 

found that reasonable suspicion had existed for Officer Bender’s stop of 

appellant’s car and that after being arrested, appellant had refused to provide a 

specimen of his breath or blood.

 2

See Tex. Transp. Code Ann. §§ 724.035(a)(1), .041–.043 (West 2011).
3

In appealing the ALJ’s decision to the trial court,3 appellant argued that 

Officer Bender had not had reasonable suspicion to stop appellant’s car based 

on his fluctuating speed and his weaving inside and outside his traffic lane. 

Appellant argued that the Department of Public Safety (the Department) had not 

proved a transportation code violation or that Officer Bender had “believed [that 

appellant] was intoxicated at the point in time he pulled him over.” Appellant also 

contended,

I know we’d have a different case altogether had the 

Department called the police officer and [the officer] said [“]I 

suspected that he was intoxicated so I pulled him over.[”] I know it 

would have been different if [the officer] had put that in his 

report. . . . I think the problem here is that [he did] not.

After listening to appellant’s argument and the Department’s response, the 

trial court affirmed the ALJ’s decision. Appellant brought this appeal.4

Reasonable Suspicion

In this court, as in the trial court, appellant contends only that Officer 

Bender did not have reasonable suspicion to justify stopping appellant while 

appellant was driving.

If a driver is arrested and the police officer making the arrest has a 

reasonable basis to believe that the driver is intoxicated, specimens of the 

 3

See id. §§ 524.041(a), .043(a) (West 2013).

4

See Tex. Dep’t of Pub. Safety v. Barlow, 48 S.W.3d 174, 176 (Tex. 2001) 

(holding that courts of appeals have jurisdiction from appeals of county courts’ 

decisions in driver’s license suspension cases).
4

driver’s breath or blood may be taken. See Tex. Transp. Code Ann. 

§ 724.012(a)(1) (West 2011). If the driver refuses to submit to the taking of a 

specimen, the Department must suspend the driver’s license to operate a motor 

vehicle on a public highway for 180 days. Id. § 724.035(a)(1). If the driver’s 

license is suspended, the driver may request a hearing on the suspension. Id.

§ 724.041(a); Tex. Dep’t of Pub. Safety v. Riley, No. 02-07-00417-CV, 2008 WL 

3185690, at *2 (Tex. App.—Fort Worth Feb. 7, 2008, no pet.) (mem. op.). At the 

hearing, the Department must prove that, among other facts, reasonable 

suspicion or probable cause existed to stop or arrest the driver. Tex. Transp. 

Code Ann. § 724.042(1); Tex. Dep’t of Pub. Safety v. Schleisner, 343 S.W.3d 

292, 295 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

A review in the county court at law or county court of an administrative 

license suspension is 

conducted under the substantial evidence standard of review. 

Under this standard, the reviewing court cannot replace the ALJ’s 

judgment with its own. If the ALJ’s decision is supported by more 

than a scintilla of evidence, that decision must be upheld. However, 

a trial court may reverse an ALJ’s determination if a substantial right 

of the appellant has been prejudiced because the ALJ’s findings, 

inferences, conclusions, or decisions are not reasonably supported 

by substantial evidence considering the record as a whole.

The court of appeals reviews the trial court’s substantial 

evidence review de novo. The issue for the reviewing court is not 

whether the ALJ’s decision was correct but only whether the record 

demonstrates some reasonable basis for the ALJ’s decision. Courts 

must affirm administrative findings in contested cases if there is 

more than a scintilla of evidence to support them, even if the findings 

are against the preponderance of the evidence. If the evidence is 

conflicting, the court must defer to the ALJ’s factual findings.
5

Tex. Dep’t of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 878 (Tex. App.—Fort 

Worth 2009, no pet.) (en banc op. on reh’g) (citations omitted); see Tex. Dep’t of 

Pub. Safety v. Axt, 292 S.W.3d 736, 738–39 (Tex. App.—Fort Worth 2009, no 

pet.) (discussing the substantial evidence standard that county courts must use 

to review decisions of ALJs); see also Tex. Dep’t of Pub. Safety v. Williams, 303 

S.W.3d 356, 358 (Tex. App.—El Paso 2009, no pet.) (“The burden for 

overturning an agency ruling is formidable.”).

As we stated in Gilfeather,

An officer conducts a lawful stop when he has reasonable 

suspicion to believe that an individual is violating the law. 

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. 

Under this standard, we look to whether an objective basis for the 

stop existed while considering the totality of the circumstances.

293 S.W.3d at 879 (citations omitted); see Axt, 292 S.W.3d at 739 (noting that 

the reasonable suspicion standard “disregards any subjective intent of the officer 

making the stop and looks solely to whether an objective basis for the stop 

exists”); see also Fernandez v. State, 306 S.W.3d 354, 357 (Tex. App.—Fort 

Worth 2010, no pet.) (explaining that the “fact that the officer does not have the 

state of mind which is hypothecated by the reasons which provide the legal 

justification for the officer’s action does not invalidate the action taken as long as 

the circumstances, viewed objectively, justify that action”); State v. Patterson, 

291 S.W.3d 121, 123 (Tex. App.—Amarillo 2009, no pet.) (“[T]he subjective 
6

reasons uttered by the officer to legitimize the stop have no bearing on the 

outcome if the totality of the circumstances nonetheless would lead a police 

officer to reasonably suspect that crime is afoot.”).

The determinative question that the trial court resolved and that we must 

answer is simply put: Did appellant’s fluctuating speed and his swerving within 

and outside of his lane multiple times produce an objectively reasonable basis for 

a belief that appellant was driving while intoxicated and therefore authorize 

Officer Bender’s stop of appellant?5

 The answer, according to decisions from our 

court and other courts, is yes. 

For example, in State v. Arend, the driver, early in the morning, had slowly 

weaved within his lane several times over the course of approximately a minute

and had come within about a foot of another vehicle but had not fluctuated his 

speed. No. 02-03-00336-CR, 2005 WL 994710, at *1, 4 (Tex. App.—Fort Worth 

Apr. 28, 2005, pet. ref’d) (mem. op., not designated for publication). We 

concluded that these facts provided reasonable suspicion of driving while 

intoxicated. Id. at *4–5. Similarly, in McQuarters v. State, the driver, shortly 

before midnight, had traveled at a slow rate of speed with no cars in the vicinity 

 5

Appellant argues, in part, that he did not commit an offense under the

transportation code. The Department does not rely on a violation of the 

transportation code to justify Officer Bender’s decision to stop appellant; the 

Department argues only that Officer Bender had reasonable suspicion to believe 

that appellant was driving while intoxicated. Because we agree with the 

Department, we decline to address whether the evidence produced objectively 

reasonable suspicion of a transportation code violation.
7

and had “cross[ed] the left lane stripe nearest to the center median twice.” 58 

S.W.3d 250, 253 (Tex. App.—Fort Worth 2001, pet. ref’d). We held that these 

facts justified a stop based on reasonable suspicion of driving while intoxicated. 

Id. at 255; see also Walker v. State, No. 02-04-00336-CR, 2006 WL 349704, at 

*1, 5 (Tex. App.—Fort Worth Feb. 16, 2006, no pet.) (mem. op., not designated 

for publication) (holding that reasonable suspicion of driving while intoxicated 

existed from a driver’s crossing the white shoulder line, swerving across yellow 

center lines, and swerving within his own lane). Other courts have found 

reasonable suspicion for driving while intoxicated under facts similar to those in 

Arend and McQuarters. See, e.g., State v. Castillo, No. 13-11-00083-CR, 2012 

WL 506533, at *1–3 (Tex. App.—Corpus Christi Feb. 16, 2012, pet. ref’d) (mem. 

op., not designated for publication); Held v. State, 948 S.W.2d 45, 47, 51 (Tex. 

App.—Houston [14th Dist.] 1997, pet. ref’d); Davis v. State, 923 S.W.2d 781, 

784, 788 (Tex. App.—Beaumont 1996) (op. on reh’g), rev’d on other grounds, 

947 S.W.2d 240 (Tex. Crim. App. 1997); Raffaelli v. State, 881 S.W.2d 714, 716 

(Tex. App.—Texarkana 1994, pet. ref’d); Townsend v. State, 813 S.W.2d 181, 

185 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d).

Based on the cases cited above, we hold that the documents admitted in 

the administrative hearing provided the ALJ with a reasonable basis to determine 

that Officer Bender had an objectively reasonable basis for stopping appellant, 

even if Officer Bender did not express in his reports that he subjectively stopped 
8

appellant based on a suspicion of driving while intoxicated.6

 See Fernandez, 306 

S.W.3d at 357; Gilfeather, 293 S.W.3d at 878–79; see also State v. Duran, 396 

S.W.3d 563, 570 & n.16 (Tex. Crim. App. 2013). Thus, we hold that the 

Department adequately demonstrated that Officer Bender’s stop of appellant’s 

car was based on reasonable suspicion of criminal activity, and we overrule 

appellant’s only issue. See Tex. Transp. Code Ann. § 724.042(1); Gilfeather, 

293 S.W.3d at 879.

Conclusion

Having overruled appellant’s only issue, we affirm the trial court’s 

judgment.

TERRIE LIVINGSTON

CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DELIVERED: June 27, 2013

 6

Appellant argues that there is no evidence that Officer Bender subjectively 

believed that appellant’s movements indicated possible intoxication.