Texas Department of Public Safety v. Axt

OPINION

I. IntROduction

Appellant Texas Department of Public Safety (the Department) appeals the trial court’s order reversing an administrative order that suspended appellee Jeffery Bruce Axt’s driver’s license for refusing to provide a breath specimen. In three issues, the Department argues that the trial court erred by reversing the administrative law judge’s (ALJ’s) findings that reasonable suspicion existed for the officers to stop Axt and that probable cause existed to believe that Axt had been driving in a public place while intoxicated. Because we hold that the officers did not have reasonable suspicion to stop Axt, we will affirm.

II. Factual and Procedural Background

Axt was driving home from a bar at approximately 2:30 a.m. early one morning when he entered the controlled access parking lot for the Arlington police department. The parking lot’s entrance and exit are normally restricted by yellow arms that lower to block entry and exit. That night, however, the yellow arms were raised, permitting entrance to the lot. A *738sign at the parking lot entrance by the raised arms indicated restricted access for authorized personnel only.

Officers Joseph Balsón and Meredith DeWall were standing outside the police department’s sally port when Axt drove into the parking lot via the entrance with the raised arm. Although the officers did not see Axt’s car enter the lot, they saw the car inside the lot and noticed that the driver appeared to be lost and had a difficult time turning and reversing his car to position it toward the lot’s exit. The officers stepped in front of Axt’s car while it was still inside the parking lot and used a flashlight to direct Axt to stop. Officer Balsón then noticed that Axt had red, glassy eyes and slurred speech and appeared disoriented. The officer also detected a strong odor of alcohol coming from the vehicle. Axt admitted that he had just left a bar down the street.

The officers detained Axt for field sobriety testing and called Officer Travis Kuhn to administer the tests. Officer Kuhn determined that Axt was intoxicated, arrested him, and after warning him of the consequences of refusing a breath test, requested that he provide a breath specimen. Axt refused, and the Department subsequently suspended his driver’s license.

Axt requested an administrative hearing regarding the suspension. Officer Balsón was the Department’s sole witness at the administrative hearing. The ALJ found that the officers had reasonable suspicion to stop Axt and that Axt was operating a motor vehicle in a public place while intoxicated. The ALJ thus authorized the Department to suspend Axt’s driver’s license for 180 days. Axt appealed the ALJ’s decision to the trial court. The trial court reversed the ALJ’s decision, holding that there was no reasonable suspicion to stop Axt. This appeal by the Department followed.

III. Driver’s License Suspension Procedures and Standard op Review

At a driver’s license suspension hearing, the Department bears the burden of proving that (1) reasonable suspicion or probable cause existed to stop or arrest the person; (2) probable cause existed to believe that the person was operating a motor vehicle in a public place while intoxicated; (3) the person was placed under arrest by the officer and subsequently asked to submit to a breath or blood test; and (4) the person refused to submit to the breath or blood specimen. See Tex. Transp. Code Ann. § 724.042 (Vernon Supp. 2008).

The driver may appeal the ALJ’s decision, in which case the county court on appeal will review the ALJ’s decision under the substantial evidence standard of review. See Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex.1999). Additionally, the court of appeals reviews the trial court’s substantial evidence review de novo. Tex. Dep’t of Pub. Safety v. Valdez, 956 S.W.2d 767, 769 (Tex.App.-San Antonio 1997, no pet.).

The issue for the reviewing court is not whether the agency’s decision is correct, but only whether the record demonstrates some reasonable basis for the agency’s action. Mireles, 9 S.W.3d at 131; Tex. Dep’t of Pub. Safety v. Vasquez, 225 S.W.3d 47, 52 (Tex.App.-El Paso 2005, no pet.). The court may not substitute its judgment on the weight of the evidence for that of the ALJ and must uphold the ALJ’s finding even if the evidence preponderates against it so long as enough evidence suggests that the ALJ’s determination was within the bounds of reasonableness. Mireles, 9 S.W.3d at 131; S.W. Pub. Serv. Co. v. Pub. Util Comm’n of *739Tex., 962 S.W.2d 207, 215 (Tex.App.-Austin 1998, pet. denied).

The burden for overturning an agency ruling is formidable. Tex. Dep’t of Pub. Safety v. Pucek, 22 S.W.3d 63, 67 (Tex.App.-Corpus Christi 2000, no pet.). If there is evidence to support the ALJ’s findings, its decision must be upheld. Tex. Dep’t of Pub. Safety v. Stacy, 954 S.W.2d 80, 83 (Tex.App.-San Antonio 1997, no writ). But 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. Tex. Gov’t Code Ann. § 2001.174(2)(E) (Vernon 2008).

IV. Reasonable Suspicion to Stop Axt

In its first issue, the Department argues that the trial court erred by reversing the ALJ’s finding that the officers had reasonable suspicion to stop Axt. The Department contends that reasonable suspicion existed because Axt committed criminal trespass by entering the Arlington Police Department’s parking lot.

A police officer may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, that the person detained actually is, has been, or soon will be engaged in criminal activity. See Tex. Dep’t of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex.App.-Dallas 2001, no pet.) (citing Tex. Dep’t of Pub. Safety v. Chang, 994 S.W.2d 875, 877 (Tex.App.-Austin 1999, no pet.)). This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. See Ford v. State, 158 S.W.3d 488, 492-93 (Tex.Crim.App.2005). The burden on the State is to demonstrate the reasonableness of the stop. See Fisher, 56 S.W.3d at 163. The State is not required to show an offense was actually committed or to prove every element of a specific offense,1 but only that the officer reasonably believed a crime was in progress. Fisher, 56 S.W.3d at 163; Martinez v. State, 29 S.W.3d 609, 611-12 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd).

The Texas Penal Code defines criminal trespass to include entry onto the property of another without effective consent and with notice that the entry was forbidden. Tex. Penal Code Ann. § 30.05(a)(1) (Vernon Supp. 2008). Even though the statutory language of section 30.05(a) does not prescribe a culpable mental state, one is nevertheless required. See Tex. Pen.Code Ann. § 6.02(b) (Vernon 2008). Intent, knowledge, or recklessness is sufficient to establish responsibility for criminal trespass. West v. State, 567 S.W.2d 515, 516 (Tex.Crim.App. [Panel Op.] 1978); Day v. State, 532 S.W.2d 302, 306 n. 2 (Tex.Crim.App.1976) (op. on reh’g), disapproved of on other grounds by Hall v. State, 225 S.W.3d 524 (Tex.Crim.App.2007); see Tex. Pen.Code Ann. § 6.02(c). Thus, the offense of criminal trespass consists of the following elements: (1) a person (2) without effective consent (3) enters or remains on the property or in a building of another (4) knowingly or intentionally or recklessly (5) when he had *740notice that entry was forbidden or received notice to depart but failed to do so. See Day, 532 S.W.2d at 306.

Regarding the fifth element — notice— the court of criminal appeals has explained that

the obvious intent of the Legislature in including the “notice” requirement in the criminal trespass statute ... [was] to prevent an innocent trespass upon the “property” of another from incurring criminal liability. For example, where one innocently trespasses upon the unfenced and unposted land of another, no criminal offense would be committed.

Id. Section 30.05 defines “notice” to include “fencing or other enclosure obviously designed to exclude intruders” and “signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden.” Tex. Penal Code Ann. § 30.05(b)(2)(B)-(C). Thus, as a matter of law, no criminal trespass may occur in the absence of notice that entry is prohibited. See id. § 30.05(a)(1); Moreno v. State, 702 S.W.2d 636, 640 (Tex.Crim.App.1986).

Here, we are concerned with the ALJ’s determination that the officers had reasonable articulable suspicion that Axt was committing the offense of criminal trespass because the record establishes that on the night in question public access to the lot was not restricted. The Department did not need to prove that Axt actually committed criminal trespass by entering the parking lot; rather, it needed to prove that Officer Balsón reasonably believed that Axt was committing the offense. See Fisher, 56 S.W.3d at 163; Martinez, 29 S.W.3d at 611-12. But despite the restricted access sign, Officer Balsón (the officer who stopped Axt and the only witness at the administrative hearing) testified and put in his report that on the night in question the arms to the entrance and exit gates were up — allowing public access to the parking lot — when Axt entered the lot at 2:30 in the morning.2 He further testified that Axt appeared to be turning around to leave, rather than attempting to park in, the parking lot when he stopped *741him. Thus, Officer Balsón could not have had a reasonable basis to believe that Axt was committing criminal trespass in light of his testimony and his police report indicating that the parking lot’s open gates allowed public access on the night in question. The Department has failed to point to evidence in the record that would lead a reasonable person to believe that Axt was committing criminal trespass by turning around in a parking lot at 2:30 a.m. when the lot’s gated arms were raised. See Viveros v. State, 828 S.W.2d 2, 4 (Tex.Crim.App.1992) (holding that driving very slowly was not suspicious activity that would create a reasonable belief that such activity was related to crime).

For these reasons, we hold that the Department failed to satisfy its burden to demonstrate that an objective basis for the stop existed. See Ford, 158 S.W.3d at 492-93; Fisher, 56 S.W.3d at 163. Applying the substantial evidence standard, we hold that the trial court correctly found that the ALJ’s reasonable suspicion determination was not supported by substantial evidence. See Tex. Gov’t Code Ann. § 2001.174(2); Mireles, 9 S.W.3d at 131; Vasquez, 225 S.W.3d at 52.

Because of our disposition of the Department’s first issue, we need not address its second or third issues. See Tex.RApp. P. 47.1. We affirm the trial court’s judgment.

CAYCE, C.J., filed a dissenting opinion.