Case Information
*1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME TRIAL COURT CAUSE NO. 2015-CV-03073 FRANCISCO J. * IN THE COUNTY COURT GONZALEZ-GONZALEZ, *
APPELLANT, * VS. * AT LAW NO. 3 * TEXAS DEPARTMENT OF PUBLIC * SAFETY, *
APPELLEE. * BEXAR COUNTY, TEXAS ************************************************************** TRANSCRIPT OF PROCEEDINGS JULY 31, 2015 ************************************************************** On the 31st day of July, 2015, the following came on to be heard in the above-entitled and numbered cause before the Honorable Jason Wolff, Judge presiding, held in San Antonio, Bexar County, Texas:
Proceedings reported by Stenographic Method. * * * ORIGINAL * * *
A P P E A R A N C E S
*2
Mr. Adam Crawshaw LAW OFFICE OF ADAM CRAWSHAW, PLLC SBOT NO. 24073017 630 Broadway Street San Antonio, Texas 78215 Phone: (210)271-1523 Attorney for Appellant Ms. Nancy Jo Bage Sorenson TEXAS DEPARTMENT OF PUBLIC SAFETY SBOT NO. 24029846 8806 Broadway Street San Antonio, Texas 78217 Phone: (210)804-5700 Attorney for Appellee *3
(Open court.)
2 THE COURT: 2015-CV-03073, Francisco Gonzalez 3 versus DPS. 4 MR. CRAWSHAW: Ready, Judge. 5 THE COURT: Good morning.
10:31AM
6 MS. SORENSON: Good morning. 7 THE COURT: Good morning. Mr. Crawshaw? 8 MR. CRAWSHAW: Yes, sir. 9 THE COURT: Your appeal, right?
10 MR. CRAWSHAW: Yes, it is.
10:32AM
11 THE COURT: Okay. 12 MR. CRAWSHAW: Are you ready for me? 13 THE COURT: Sure. 14 MR. CRAWSHAW: Judge, the sole issue on appeal 15 is whether or not there's reasonable fact -- or facts in the
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16 record to support Judge Lambright -- the administrative law 17 judge's decision -- finding. The only issue that I'm 18 appealing is whether or not there was reasonable suspicion for 19 the stop in this case. Reasonable suspicion or probable cause 20 for the stop is what DPS alleges in their original petition.
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21 As far as the evidence for review goes, the most 22 important thing in this case is that a court shall reverse an 23 administrative decision if appellant's substantial rights have 24 been prejudiced because his findings are in violation of 25 constitutional or statutory provisions. It's cited in my *4 brief.
2 The reason for the stop in this case is because 3 my client made a U-turn from a left-turn-only lane. That's 4 the only thing that's in the police officer's report. There's 5 nothing in the transcript that elaborates on that reason --
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6 that reason for the stop. And so because there's no facts 7 articulated in the record, there can -- the ALJ -- there's no 8 legal basis to find that there's reasonable suspicion or 9 probable cause for the stop.
10 THE COURT: I'm sorry? There was not testimony
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11 at the hearing? 12 MR. CRAWSHAW: There was. 13 THE COURT: Okay. 14 MR. CRAWSHAW: But not on that point. 15 THE COURT: All right.
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16 MR. CRAWSHAW: The only thing that's in the 17 police report, which is an exhibit that's attached to the 18 record, is that my client made a U-turn from a left-hand-turn 19 lane, which is not in itself a traffic violation. And so 20 because -- because that's not --
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21 THE COURT: It can -- it may or it may not be, 22 right? 23 MR. CRAWSHAW: That's correct. 24 THE COURT: Okay. 25 MR. CRAWSHAW: But because there's no objective *5 facts in the record to support that finding, I think that
2 the -- the decision must be reversed. 3 THE COURT: All right. 4 MS. SORENSON: And I think you have a copy of 5 this, do you?
10:33AM
6 THE COURT: I do. 7 MS. SORENSON: Okay. And the -- really, the 8 standard of review is the most important thing here on appeal, 9 and I know you're very familiar with this. And we believe not
10 only does the record demonstrate some reasonable basis for the
10:34AM
11 ALJ's decision and more than a scintilla of evidence, but I 12 don't think that there's even an evidentiary ambiguity in this 13 case. He was -- the officer was subpoenaed by defense and did 14 appear at the hearing, but they elected not to ask him any 15 questions about the stop.
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16 THE COURT: Well -- 17 MS. SORENSON: Where the -- where the -- 18 THE COURT: It might be good lawyering. 19 MS. SORENSON: Oh, oh, no. Yeah. No. I'm 20 not -- I'm just saying they didn't. And the evidence for --
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21 and where the -- the evidence for the judge's decision is in 22 the officer's sworn report, which is just as valid as if he 23 testified at the hearing. It's in the paperwork. And, Judge, 24 it's on -- it's in the -- you have a copy of the -- 25 THE COURT: You guys -- *6 MS. SORENSON: -- record?
2 THE COURT: -- don't dispute that that's the 3 sole basis, is that -- 4 MR. CRAWSHAW: No. 5 THE COURT: -- is a U-turn? No?
10:35AM
6 MR. CRAWSHAW: No. 7 MS. SORENSON: No, no. 8 THE COURT: You're not disputing that that's the 9 basis that the ALR judge made -- found reasonable suspicion
10 for the stop was a U-turn in a left-hand --
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11 MS. SORENSON: That's correct, Judge. And so 12 the evidence for that -- what the judge based his -- and you 13 can see from his -- from his -- his decision exactly what he 14 says. And in the report -- the officer's report, it says that 15 he was monitoring traffic on Walzem. He observed the vehicle
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16 traveling westbound in the left lane and then made a U-turn 17 through the, quote, left-only-turn lane on the eastbound side. 18 And when asked about why he did this, the defendant stated he 19 didn't know about the turn lane. So this was a left-only-turn 20 lane. Left only means left only, does not mean any other
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21 kinds of turns, including a U-turn. And so -- and the judge 22 states in his decision that reasonable suspicion to stop or 23 detain defendant existed on that date. A Texas peace officer 24 observed defendant make a U-turn from a lane designated for 25 left turns only while operating a motor vehicle. *7 So there is actually specific, articulated facts
2 as to why he stopped him, because he made a U-turn through a 3 left-only-turn lane. So I think that is true. 4 As far as the -- there's more than a scintilla 5 of evidence because it's there in the record, in the peace
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6 officer's sworn report, which is DPS 1 and it's in the first 7 tab. 8 Then, secondly, even if you -- oh, I'm sorry. 9 Whoops. And to discuss the -- the -- the city ordinance --
10 and I believe you have it in Mr. Crawshaw's very impressive
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11 brief. And I mean that in sincerity. It was very -- you 12 know, it was very well done. 13 On the U-turn, the limitations, it says the 14 driver of any vehicle shall not turn such vehicle so as to 15 proceed in the opposite direction upon any street in a
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16 business district, at any section controlled by a traffic 17 control signal unless signs are posted permitting a U-turn. 18 Okay. So this was a left only -- designated 19 left-only-turn lane. It didn't designate U-turn because it 20 was designated left turn only.
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21 THE COURT: Isn't the -- isn't the distinction 22 if it is, in fact, in a business district? 23 MS. SORENSON: Or any intersection, it says -- 24 upon any street or any intersection controlled by a traffic 25 control device, it says. *8 THE COURT: Within a business district?
2 MS. SORENSON: No, outside of that. Or at any 3 intersection -- or nor upon any other street unless such 4 moving can be made in safety without interfering with other 5 traffic. And this was -- business, I didn't even think that
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6 was at issue. 7 THE COURT: All right. So -- hang on a second. 8 So -- 9 MS. SORENSON: But -- I have another --
10 THE COURT: Go ahead.
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11 MS. SORENSON: I'm sorry. 12 THE COURT: That's okay. 13 MS. SORENSON: No. You go ahead, Judge, and 14 then I'll go with my third thing. 15 THE COURT: So the issue is whether or not it
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16 was legal or illegal to make the turn where the turn was made. 17 There could be instances where it is illegal. There could be 18 instances where it's not. I don't understand why, 19 Mr. Crawshaw, you're saying that can't support reasonable 20 suspicion in any capacity.
10:38AM
21 MR. CRAWSHAW: Because the law -- constitutional 22 law requires -- this is an old case, but Ford versus State 23 requires there be objective reasonable basis in the record. 24 THE COURT: That is -- how is that not an 25 objective reasonable basis -- *9 MR. CRAWSHAW: Because it's not --
2 THE COURT: -- in the record? 3 MR. CRAWSHAW: Because it's not an 4 articulated -- it's not an articulated reason for the stop. 5 Yes, he --
10:39AM
6 THE COURT: It's articulated in the police 7 report which is acceptable evidence of the ALR hearing. 8 MR. CRAWSHAW: Yes, it is. That's exactly 9 right.
10 THE COURT: Okay.
10:39AM
11 MR. CRAWSHAW: But the difference is, Judge, is 12 that that alone is a conclusory statement which doesn't 13 articulate a traffic violation. And we have to have 14 objective, specific, reasonable, articulated facts by the 15 officer.
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16 THE COURT: Could you read that statement for me 17 again in the police officer's report? 18 MS. SORENSON: Yes. I don't want to start too 19 far above, but he was monitoring traffic at the 5000 block of 20 Walzem, a public roadway. I observed a vehicle traveling
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21 westbound in the left lane and then made a U-turn through 22 the -- and he puts it in quotes, the officer in his report -- 23 left-only, quotes, turn lane on the eastbound side. 24 THE COURT: Keep reading, please. 25 MS. SORENSON: Oh, I'm sorry. I activated the *10 patrol's emergency red and blue lights to initiate a traffic
2 stop. The vehicle pulled over at the Roosevelt High School 3 parking area. 4 THE COURT: Okay. Thank you. 5 MS. SORENSON: I made contact with him.
10:40AM
6 THE COURT: Okay. Thank you. 7 MS. SORENSON: I'm sorry. 8 THE COURT: Mr. Crawshaw, you're saying that 9 there can be no inference that, I saw this and activated my
10 lights, that can't be an inference that the ALR judge can make
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11 was the basis of the stop? 12 MR. CRAWSHAW: Yeah, but he didn't, Judge. The 13 findings of fact make no inference. The findings of fact 14 merely recite what's in the police report. And that's the 15 issue. The standard of review says are there -- is there a
10:40AM
16 basis in the record, number one. And then, number two, before 17 that, actually, in the section of the Government Code, it 18 says, is there -- if there's -- if it's in violation of a 19 constitution or statutory provision. My client has a 20 constitutional right against unreasonable seizure, not search.
10:40AM
21 We aren't dealing with a search. Unreasonable seizure. And 22 so because there's not objective, reasonable, articulated 23 facts in the record -- and that section of the Government Code 24 is in the right-hand side of my folder -- 25 THE COURT: A court of review must affirm the *11 administrative findings in a contested case if there's more
2 than a scintilla of evidence to support them even if the 3 findings are against the preponderance of the evidence. The 4 inquiry is not whether the administrative law judge's decision 5 was correct, but only whether the record demonstrates some
10:41AM
6 reasonable basis for the AL judge's decision. 7 It's a very high burden, I think, for you to be 8 successful on an appeal based on the standard of review, the 9 substantial evidence analysis.
10 MR. CRAWSHAW: And I agree with that, Judge, but
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11 I would -- I guess I can't emphasize enough that Section 12 2001.1744 of the Government Code says that this reviewing 13 court must reverse it if there -- if my client's 14 constitutional and substantial rights have been violated, and 15 I think that they have.
10:42AM
16 THE COURT: And they've been violated because? 17 MR. CRAWSHAW: Because there was no reasonable 18 basis for the seizure, for the initial detention. All he saw 19 my client do was make a traffic maneuver. That's the only 20 thing that's in the record, and so there's not a scintilla of
10:42AM
21 evidence in the record that says, yeah, there's an objective 22 basis for the stop. 23 THE COURT: He made an indication in the report 24 that he made a U-turn in a left-turn-only lane and he 25 initiated his traffic lights. *12 MR. CRAWSHAW: That's it though. That's a
2 conclusory statement that -- all he's citing is he saw 3 somebody drive and make a U-turn. He hasn't -- that's it. 4 THE COURT: And put on his lights; therefore, in 5 his opinion, meaning that the person violated a traffic law.
10:42AM
6 MR. CRAWSHAW: That's correct, in his opinion. 7 But we have the objective basis standard under the 8 constitution which the Government Code says that if there's no 9 objective basis, then his constitutional rights have been
10 violated and this decision -- the ALJ's decision should be
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11 reversed. 12 THE COURT: I'm sorry, Mr. Crawshaw, but I 13 disagree with you. I think there was an objective basis that 14 the ALR judge made his decision on with the police report that 15 was submitted. And on the standard of review, I'm not going
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to substitute my judgement for his. MR. CRAWSHAW: Thank you, Judge. THE COURT: Thank you. (Conclusion of proceedings.)
*13 STATE OF TEXAS )
COUNTY OF BEXAR )
I, Edna L. Casanova, County Court Reporter in and for the County Court No. 2 of Bexar County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record, in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported to me.
I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, admitted by the respective parties.
I further certify that the total cost for the preparation of this Reporter's Record is $ 58.50 and was paid/will be paid by Attorney Adam Crawshaw .
WITNESS MY OFFICIAL HAND this the 14th day of August , 2015. /s/Edna L. Casanova Edna L. Casanova, Texas CSR 6447 Expiration Date: 12/31/2015 Official Court Reporter County Court No. 2 Bexar County, Texas San Antonio, Texas 78205 (210)335-2079
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