Opinion
No. 05-03-00939-CV
Opinion Filed May 28, 2004.
On Appeal from the 14th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 02-04883-A.
Affirm.
Before Justices MOSELEY, O'NEILL and RICHTER.
MEMORANDUM OPINION
Appellant sought judicial review of appellee commission's determination to uphold appellant's reduction in rank from a Deputy Sheriff to a Detention Service Officer stemming from appellant's conduct in regard to a high-speed chase. The trial court found in favor of the commission, and appellant urges five issues on appeal. He claims that the commission's decision is not supported by substantial evidence, violated his right to due process and equal protection of the law, and "ignored the evidence and made a decision which was arbitrary, capricious, and characterized by an abuse or clearly unwarranted exercise of discretion." He also claims that the court below erred in affirming the commission's decision because only two, rather than three commissioners were present and the commission failed to provide the procedural and substantive rights mandated by section 158.035 of the Texas Local Government Code. Tex. Local Gov't Code Ann. § 158.035 (Vernon 1999). We affirm.
The facts are well-known to the parties, and we do not recite them in detail. Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion. Tex.R.App.P. 47.1.
I. Background
Appellant was a deputy sheriff called to assist in a high-speed chase. He was asked by another officer to block the roadway using his patrol car. Appellant thereafter placed his patrol car across two lanes of a three-lane roadway. Using a patrol car to set up a roadblock is in violation of sheriff's department policies.
As the suspect's vehicle passed through the remaining open lane of traffic, at least one gunshot was fired, hitting the suspect's vehicle. Appellant reported that he did not fire his gun, or if he had, he had no recollection of doing so. Another officer reported that appellant fired at least one shot at the suspect's car. When no one claimed responsibility for firing the shot, everyone's weapons were checked, and appellant's weapon had one missing cartridge. In addition, a lieutenant with the sheriff's department saw powder residue on appellant's gun shortly after the shooting, and appellant's hands tested positive chemically for gunshot residue. An investigator testified that it would be impossible to shoot a weapon such as appellants and not realize it.
Appellant was subsequently demoted for violating various provisions of the code of conduct and the sheriff's general orders based upon his usage of his patrol car as a roadblock device and firing at a fleeing suspect vehicle and failing to report it properly.
II. Standard of Review
An appeal of a Sheriff's Department Civil Service System commission decision is reviewed under the substantial evidence rule. Tex. Local Gov't Code Ann. §§ 158.037(b), 158.0371(a) (Vernon 1999). Under this standard, appellant has the burden to show that the commission's decision was not based on substantial evidence. Bustamante v. Sheriff's Civil Service Comm'n, 27 S.W.3d 50, 51-52 (Tex. App.-San Antonio 2000, pet. denied). Substantial evidence is more than a mere scintilla, but less than a preponderance of the evidence. Id. at 52. As a result, the evidence supporting the commission's order may preponderate against the commission's decision and still amount to substantial evidence. Id. The reviewing court, whether the district court or the court of appeals, may not set aside the commission's decision because it would reach a different conclusion; it may only do so if that decision was made without regard to the facts or the law and so was unreasonable, arbitrary, or capricious. Id.
III. Discussion
Upon review of the record in this case, the pertinent facts of which are recited above, we conclude that there was substantial evidence to support the commission's decision. Appellant used his patrol car to block two lanes of traffic in violation of the department's rules prohibiting roadblocks in high-speed chases. Further, the commission was in the best position to weigh the veracity of the various witnesses and the weight of the evidence presented. The commission was free to accept the testimony of witnesses tending to show that appellant fired at least one shot and then was evasive about his involvement. Further, there was evidence that appellant had gunshot residue on his weapon and hands. The commission was free to accept testimony that it would be unlikely that one could fire a Glock .40 caliber handgun and not realize it. We conclude that the commission's decision was supported by substantial evidence. We overrule appellant's first issue. Appellant's fourth issue is related to his first issue. Section 158.0371 of the Local Government Code provides that review under the substantial evidence rule requires reversal if substantial rights of the appellant have been prejudiced because the commission's findings, inferences, conclusions, or decisions are arbitrary or capricious, characterized by an abuse of discretion, or clearly an unwarranted exercise of discretion. Tex. Local Gov't Code Ann. §§ 158.0121(2)(F), 158.0371(a) (Vernon 1999) (Section 158.0371(a) requires that the standard set forth under Section 158.0121 applies to an appeal under Section 158.037). We overrule appellant's fourth issue for the same reasons we concluded that the commission's decision was supported by substantial evidence.
In appellant's second issue, he claims that the commission violated appellant's rights to due process of law and equal protection of the law, as guaranteed by the Constitution of the United States and the Constitution of the State of Texas. Other than in his statement of issues presented, appellant does not mention "Constitution," "due process," or "equal protection" anywhere in his brief. He cites no constitutional provisions, state or federal, and he cites no cases to support his issue. We conclude that appellant has inadequately briefed this issue, and his claim is consequently waived. Kang v. Hyundai Corp., 992 S.W.2d 499, 503 (Tex. App.-Dallas 1999, no pet.).
In his third issue, appellant complains that the commission used an unlawful procedure because his case was heard by only two, instead of three, commission members. Appellant did not object to this procedure before the commission. Notwithstanding, the statute only requires three members to be present when the proceeding occurs in a county with 2.8 million or more residents. Tex. Local Gov't Code Ann. § 158.035(c) (Vernon 1999). There is no evidence in the record that Dallas County has that many residents. We overrule appellant's third issue.
In appellant's fifth and final issue, he complains that the commission failed to provide procedural and substantive rights mandated by Section 158.035 of the Local Government Code, and therefore, its decision was arbitrary, capricious and characterized by an abuse or clearly unwarranted exercise of discretion. In his brief, appellant states: "Each of the issues presented by appellant revolves around the ability of the Sheriff's Department Internal Affairs Department [sic] to selectively enforce the Sheriff's Department Code of Conduct and General Orders, and are so intertwined that they will be argued as a whole, rather than by specifically listing each issue and arguing the issues individually." We cannot tell which arguments and authorities sections in the brief address which issues. Consequently, we address only the issues raised by the arguments presented in the body of appellant's brief. Columbia Med. Ctr. of Las Colinas v. Hogue, No. 05-03-00279-CV, 2004 WL 772423, at *4 n. 4 (Tex. App.-Dallas Apr. 13, 2004, no pet. h.).
Appellant claims that the commission, in contravention of Section 158.037(a) of the Local Government Code, did not adopt, publish, or enforce rules regarding disciplinary actions, grievance procedures, and the rights of employees during investigations. Tex. Local Gov't Code Ann. § 158.037(a)(5)-(7) (Vernon 1999). However, appellant does not cite to any evidence in the record to support this assertion. Appellant further claims that the lack of established procedures in an internal investigation was shown when an internal affairs investigator responded "I don't recall" when asked if the investigation was sent back down the chain of command to be "redone." Finally, appellant seems to claim that the commission's failure to invoke "the rule" somehow necessitates the conclusion that the commission had no published procedures. We find all of these arguments unpersuasive and overrule appellant's fifth issue.
IV. Conclusion
We conclude that the commission's decision was supported by substantial evidence and that none of the other issues raised by appellant has merit. We affirm the judgment of the trial court upholding the decision of the commission.