Opinion

Texas Department of Public Safety v. Willie Ersell McCulloch

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: Aug 12, 1999
Status: Published
Cited by: 0 cases
Authority: More cited than 35.9%

The opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00480-CV

Texas Department of Public Safety, Appellant

Willie Ersell McCulloch, Appellee

FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY

NO. 240,575, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING

The Texas Department of Public Safety appeals the trial court's reversal of the

administrative law judge's suspension of Willie Ersell McCulloch's driver's license. We will

reverse the trial-court judgment and reinstate the order suspending McCulloch's driver's license.

At a hearing on a license suspension before an administrative law judge ("ALJ"),

the issues that must be proved by a preponderance of the evidence are:

(1) whether:

(A) the person had an alcohol concentration of a level specified by Section

49.01(2)(B), Penal Code, while operating a motor vehicle in a public

place; or

(B) the person is a minor and had any detectable amount of alcohol in the

minor's system while operating a motor vehicle in a public place; and

(2) whether reasonable suspicion to stop or probable cause to arrest the person

existed.

Tex. Transp. Code Ann. § 524.035 (a) (West 1999). If the ALJ finds in the affirmative on each

issue in subsection (a), the suspension is sustained. Id. § 524.035(b). If the ALJ does not find

in the affirmative on each issue in subsection (a), the department shall reinstate the person's

driver's license and rescind an order prohibiting the issuance of a driver's license to the person.

Id. § 524.035(c).

Trial courts review an ALJ's fact-findings to see if substantial evidence supports

them. See Tex. Gov't Code Ann. § 2001.174 (West 1999). In conducting a substantial evidence

review, the reviewing court may not substitute its judgment for that of the ALJ. Railroad Comm'n

v. Torch Operating Co. , 912 S.W.2d 790, 792-93 (Tex.1995); Texas State Bd. of Dental

Examiners v. Sizemore , 759 S.W.2d 114, 116 (Tex. 1988). The reviewing court may consider

only the record on which the ALJ's decision is based. Sizemore , 759 S.W.2d at 116 . If the

evidence supports either a negative or affirmative finding on a specific matter, the decision of the

ALJ must be upheld. Texas Health Facilities Comm'n v. Charter Medical-Dallas, Inc. , 665

S.W.2d 446, 453 (Tex.1984); see also Torch Operating , 912 S.W.2d at 792-93 .

The evidence in the administrative hearing record included one witness and three

documents. The testimony came from the police officer who administered the intoxilyzer

examination. Documentary evidence included the arresting officer's affidavit for warrant of arrest

and detention for driving while intoxicated ("DWI"), the records custodian's affidavit regarding

the intoxilyzer test results, and the intoxilyzer test slip. The warrant affidavit includes the

arresting officer's notes that he stopped McCulloch because the left front headlight was broken and

because McCulloch's truck crossed over the lane line four times between the 5600 and the 6100

blocks of Manchaca Road. It then details the signs of intoxication the officer noted after making

the stop. The warrant affidavit does not list a time of arrest. The officer who administered the

intoxilyzer test did not see McCulloch drive or know when the arrest occurred, but said he

administered the intoxilyzer test at 12:22 a.m. McCulloch presented no controverting evidence.

The ALJ found the affidavit showed the officer had reasonable suspicion to stop McCulloch and

that the evidence showed McCulloch was intoxicated while driving.

The trial court reversed the ALJ's order suspending McCulloch's license,

concluding that there was no evidence of reasonable suspension to stop him. The court stated

orally that there was no evidence that the arrest occurred at night, thus making the broken

headlight not illegal. The court also opined that, without more, the statement in the warrant

affidavit that McCulloch crossed the lane line four times does not describe an illegal act.

The DPS argues that the trial court erred in reversing the ALJ's decision because

the record contained substantial evidence to support the arresting officer's reasonable suspicion

that McCulloch violated a Transportation Code section. (1) The DPS contends McCulloch lacked

the required functioning headlight on each side of the car. (2) The only evidence is that McCulloch

had a broken headlight. The DPS argues that the past-midnight intoxilyzer test administered in

February, coupled with a lack of complaint about the duration of McCulloch's incarceration

between arrest and test, indicates that McCulloch was driving at night, needed two working

headlights, and had only one. The DPS also contends that McCulloch failed to drive as nearly as

practical entirely within a single lane or to remain in his lane unless a lane change could be made

safely. Tex. Transp. Code Ann. § 545.060 (West 1999). The DPS argues that McCulloch's

violation of these statutes made the arresting officer's initial stop reasonable. See McVickers v.

State , 874 S.W.2d 662, 664 (Tex. Crim. App. 1993).

We conclude that the trial court erred by deciding that substantial evidence did not

support the ALJ's finding that the initial stop was reasonable. The arrest occurred in February,

when darkness falls well before eight o'clock in the evening. Intoxilyzer tests should be and

generally are administered fairly shortly after arrest to provide an accurate gauge of the blood-alcohol level of the driver when driving. The intoxilyzer officer's testimony that the test was

administered after midnight supplies substantial evidence to support an inference that the arrest

occurred fairly shortly before midnight. Headlights would have been necessary at the inferred

time of the stop. McCulloch's argument that the affidavit does not show that he did not have two

working headlights also falls to a reasonable inference. McCulloch argues that his truck might

have originally had four headlights, so one broken one would leave him with one on the left; there

is no evidence regarding the number of headlights on his truck. Most personal vehicles have only

two headlights; evidence that the truck had a broken left headlight--and that the broken headlight

caused a police officer to stop the truck--gives rise to an inference that there was not a functioning

second left headlight. There was no evidence to counter either the inference of the time or the

inference that the truck did not have a functioning left headlight.

McCulloch argues that the breath test evidence should not have been admitted

because the administering officer did not testify. McCulloch made this objection to the ALJ, who

overruled it. This was not an issue before the trial court because the trial court found other

grounds on which to reverse the ALJ's order. McCulloch did not need to file a notice of appeal

to make this argument because he does not seek more relief than the trial court granted. See Tex.

R. App. P. 36.2. McCulloch's argument nevertheless fails. He relies on Stevenson v. State , in

which the Court of Criminal Appeals held that an intoxilyzer result can be excluded as hearsay if

the record lacks proof of the result of the test by a witness or witnesses qualified to translate and

interpret such result. 895 S.W.2d 694, 696 (Tex. Crim. App. 1995). In Stevenson , however, the

technical supervisor attempted to testify about the results of tests he did not administer, and the

officer who administered the test did not testify. Id . at 695. Here the supervisor testified by

affidavit regarding the functioning of the machine and the test results, but the officer who

administered the test also appeared at the trial and testified regarding the administration of the

intoxilyzer exam and the results. The testimony regarding the functioning of the machine can be

made by affidavit. Tex. Transp. Code Ann. § 524.038 (c) (West 1999). The testimony of the

administering officer resolves the hearsay problems raised in Stevenson .

We also conclude that the ALJ did not abuse its discretion in admitting the evidence

over McCulloch's Rule 702 objection. See Tex. R. Evid. 702. In order for scientific evidence

to be admissible, the following must be true: (1) the underlying scientific theory must be valid;

(2) the technique applying the theory must be valid; and (3) the technique must have been properly

applied on this occasion. Hartman v. State , 946 S.W.2d 60, 62 (Tex. Crim. App. 1997). At this

point, we believe that the acceptability of the underlying scientific theory of the relationship of

breath-alcohol levels to blood-alcohol levels to intoxication is sufficiently established to absolve

the State of having to retry the issue in every case. The legislature has determined that intoxilyzer

results are generally admissible if averments are made concerning the functioning of the particular

machine used in the test. See Tex. Transp. Code Ann. §§ 524.038 & 724.063 (West 1999). The

supervisor averred that the intoxilyzer used and the officer administering the test were both

certified. The officer administering the exam testified about how he administered the test. The

trial court did not abuse its discretion by admitting this evidence.

CONCLUSION

Having concluded that the trial court correctly determined that the ALJ did not err

by admitting the intoxilyzer test results and having also concluded that substantial evidence

supported the ALJ's finding that the DPS proved it had reasonable suspicion to stop McCulloch,

we reverse the judgment of the trial court reversing the ALJ's affirmance of the license

suspension. We render judgment reinstating the decision of the ALJ suspending McCulloch's

license.

Bea Ann Smith, Justice

Before Justices Jones, B. A. Smith and Yeakel

Reversed and Rendered

Filed: August 12, 1999

Do Not Publish

1. Contrary to the DPS's argument, McCulloch did not concede that substantial evidence

supports the reasonableness of the stop by failing to brief this issue. Appellant, wanting to change

the judgment, must argue in order to convince this Court to alter the status quo. See Tex. R. App.

P. 38.1(h), 38.3(a). Though an appellee should file a brief to apprise this Court why the judgment

is correct, the judgment will remain unchanged if the appellant fails to persuade us that the trial

court erred regardless of whether the appellee filed a brief or discussed the issue in its brief.

2. One code section provides:

Duty to Display Lights

(a) A vehicle shall display each lighted lamp and illuminating device required by

this chapter to be on the vehicle:

(1) at nighttime; and

(2) wen light is insufficient or atmospheric conditions are unfavorable so that

a person or vehicle on the highway is not clearly discernible at a distance

of 1,000 feet ahead.

* * *

vehicle.

Tex. Transp. Code Ann. § 547.302 (West 1999).

Another section provides:

Headlamps Required

(a) A motor vehicle shall be equipped with at least two headlamps.

(b) At least one headlamp shall be mounted on each side of the front of the vehicle.

Id. § 547.321.

: (1) the underlying scientific theory must be valid;