Michael Barr v. Texas Department of Public Safety--Appeal from County Court at Law No 3 of Bexar County

MEMORANDUM OPINION

No. 04-02-00880-CV

Michael BARR,

Appellant

v.

TEXAS DEPARTMENT OF PUBLIC SAFETY,

Appellee

From the County Court at Law No. 3, Bexar County, Texas

Trial Court No. 275823

Honorable H. Paul Canales, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 3, 2003

AFFIRMED

This is an appeal from the trial court's judgment sustaining the suspension of appellant's driver's license. All issues of law are settled; therefore, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex. R. App. P. 47.4. Because appellant has waived his sole complaint on appeal, we affirm.

During the hearing before an administrative law judge, appellant attempted to call to the witness stand a cadet officer who was present when appellant was stopped and arrested for driving while intoxicated. The appellee objected on relevancy grounds, arguing that the arresting officer did not rely on any of the cadet's observations when he decided to arrest appellant. The administrative law judge sustained the objection. On appeal, appellant asserts the judge's refusal to allow him to examine the cadet officer violated his due process rights under the United States and Texas Constitutions. Appellant contends his complaint is preserved because he submitted to the judge a written bill of exceptions.

To preserve the record for appeal, the party offering the excluded evidence must make an offer of proof in the form of a concise statement or in question and answer form. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 433 (Tex. 1984); Stewart v. State, 995 S.W.2d 187, 192 (Tex. App.--Fort Worth 1999, pet. ref'd); Flores v. State, 920 S.W.2d 347, 352 (Tex. App.--San Antonio 1996), pet. dism'd, improvidently granted, 940 S.W.2d 660 (Tex. Crim. App. 1996); Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2), (b). Although the cadet was present at the hearing, appellant did not question him as part of a bill of review. Instead, appellant's counsel presented a list of questions to the administrative law judge. Appellant did not proffer the cadet's answers to those questions.

Because appellant did not make a bill of exceptions that showed what the excluded testimony would have been, he did not preserve his complaint for our review. Duncan, 665 S.W.2d at 433; Stewart, 995 S.W.2d at 192; Tex. R. App. P. 33.2. Therefore, we affirm the trial court's judgment.

Sandee Bryan Marion, Justice