Alvino G. Ramos v. Texas Department of Public Safety--Appeal from County Court at Law No 3 of Bexar County

MEMORANDUM OPINION

No. 04-05-00389-CV

Alvino G. RAMOS,

Appellant

v.

TEXAS DEPARTMENT OF PUBLIC SAFETY,

Appellee

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

Trial Court No. 300112

Honorable H. Paul Canales , Judge Presiding


Opinion by: Karen Angelini , Justice

Sitting: Catherine Stone , Justice

Karen Angelini , Justice

Sandee Bryan Marion , Justice

Delivered and Filed: March 1, 2006

AFFIRMED

On January 26, 2005, an administrative law judge ("ALJ") authorized the suspension of Alvino Ramos's driver's license in connection with his refusal to provide a breath specimen when requested by a peace officer who had probable cause to believe he was driving while intoxicated. At the hearing, Ramos objected to the admission of Exhibit DPS-1, arguing that it was not sufficiently identified to be reliable. The ALJ overruled his objection, and Ramos appealed his suspension to the trial court. The trial court affirmed the ALJ's decision. Ramos now appeals arguing that Exhibit DPS-1 should not have been admitted.

We review administrative rulings on the admission of evidence under an abuse of discretion standard. Tex. Dep't of Pub. Safety v. Pruitt, 75 S.W.3d 634, 637 (Tex. App.--San Antonio 2002, no pet.). A court abuses its discretion if it acts without reference to any guiding rules and principles or acts arbitrarily and unreasonably. See Tex. Dep't of Pub. Safety v. Mendoza, 956 S.W.2d 808, 810-11 (Tex. App.--Houston [14th Dist.] 1997, no pet.).

After a person has been arrested and has refused to submit to a breath test, a peace officer is required to submit a written report of the incident to the director of the Department of Public Safety. Tex. Transp. Code Ann. 724.032 (Vernon 1999). According to Ramos, Exhibit DPS-1 should not have been admitted into evidence because it was not properly authenticated or "sufficiently identified to be reliable." (1) Exhibit DPS-1 is a total of six pages. The first page is titled "Peace Officer's Sworn Report," and under section "A" of the report, it states the following: "Contained in report(s) incorporated by reference for all purposes as if written and copied herein. Specify report(s) or document(s): DIC 23, 24, 25, DWI report, Supp." Further, in the blank beside "No. of pages," the peace officer wrote "6." Ramon complains that this language does not specifically identify the documents being incorporated:

DPS-1 states that it is incorporating by reference "DIC 23, 24, 25, DWI report, Supp." These labels for the instruments sought to be incorporated by reference do not sufficiently identify [the documents that are] in fact submitted are the documents intended by the reporting officer [to be submitted] since several pages of the report and supplement do not identify the arrested person by name. (emphasis added).

In support of his argument, Ramos relies primarily on Bradley v. First National Bank of Sudan, 470 S.W.2d 273, 275 (Tex. Civ. App.--Amarillo 1971, writ ref'd n.r.e.). In Bradley, the appellee, as payee, filed an unsworn petition seeking recovery against the appellant, as maker, on a promissory note. Id. at 274. The petition referenced an attached copy of a note which was not sworn to or certified. Id. After the appellant answered, the appellee filed a motion for summary judgment, attaching an affidavit and deposition in support. Id. The affidavit recited that the note was renewed on November 1, 1969, while the copy of the note attached to the petition was dated August 1, 1969.Id. "Thus, the affidavit describe[d] a note the date of which is not in accordance with the date of the only note appearing in the record." Id. Additionally, the motion for summary judgment described the note as being due on November 1, 1969, while the petition and attached copy showed the due date to be November 11, 1969. The court noted that "[t]hese discrepancies or inaccurate references to the copy of the note are not explained or clarified in appellee's pleadings, supporting affidavit, or deposition." Id. As such, the court held that summary judgment was improperly granted:

[A]ppellant's only sworn pleading mentions a note with a renewal date which does not appear elsewhere in the record and varies with the date shown on the only copy of a promissory note found in the record. Also, the due dates shown on the face of such note are inconsistent. It is our opinion that the ambiguous and confusing recitations in the various instruments above mentioned do not constitute accurate or sufficient "incorporation by reference."

Id. at 275.

Applying Bailey's holding, Ramos argues that the recitations in Exhibit DPS-1 are ambiguous and confusing because "several pages of the report and supplement do not identify the arrested person by name." We disagree. Exhibit DPS-1 totals six pages. The front page, DIC-23, "Peace Officer's Sworn Report," clearly identifies Ramos by name. The second through fourth pages are the continuation of one form, Form 24-1A, "DWI/Traffic Case Report." The first page of Form 24-1A identifies Ramos by name and case number. The second page of Form 24-1A identifies Ramos by case number. Although the third page of Form 24-1A does not identify Ramos by name or case number, it is clearly the continuation of Form 24-1A. The fifth page is Form 24-FSC, "DWI/Traffic Case Report- Supplement," and includes both Ramos's name and case number. The sixth page is DIC-24, "Statutory Warning," and also includes Ramos's name.

The purpose of these documents is to show that the police officer had probable cause to believe that Ramos was driving while intoxicated. It is obvious from the record that these documents pertain to Alvino Ramos. They describe the circumstances of his arrest and contain the officer's signature. Even though the third page of Form 24-1A does not identify Ramos by name or case number, it is obviously a continuation of the previous pages. See Barnes v. State, 876 S.W.2d 316, 327-28 (Tex. Crim. App. 1994) (holding that appendices physically attached to the search warrant were implicitly incorporated within the affidavit, containing information which was obviously continuation of the affidavit's paragraph setting forth basis for probable cause, making affidavit sufficient to support search warrant, though appendices were not individually signed or sworn to and were not expressly incorporated by reference).

Ramos also argues that the trial court erred in admitting Exhibit DPS-1 because although it references DIC-25, a document titled "Notice of Suspension," DIC-25 was not attached. Therefore, according to Ramos, the "complete absence of DIC-25 is suspicious" because the first page of Exhibit DPS-1states that the total number of pages is six. According to Ramos, however, if DIC-25 had been included in DPS-1, then the exhibit would total seven pages, not six. However, whether the documents are inaccurate or whether there are pages missing from DPS-1 affects the weight to be given the evidence, not its admissibility. See Adams v. State, 985 S.W.2d 582, 584 (Tex. App.--Eastland 1998, pet. ref'd) (holding that the trial court did not abuse its discretion in admitting medical records even though the affidavits misstated the number of pages contained in the medical records and even though pages might be missing from the medical records because when there is no evidence showing that the source of the information or the method or circumstances of the medical records' preparation was not trustworthy, "[w]hether the affidavits are inaccurate or whether there are pages missing from the medical records should affect the weight to be given the evidence not the admissibility").

Therefore, we hold that the ALJ did not abuse his discretion by admitting DPS-1 into evidence and affirm the judgment of the trial court.

Karen Angelini , Justice

1. We note that Ramos has framed his issue as the following: "The trial court erred and abused its discretion in admitting the evidence because it was not properly authenticated or sufficiently identified to be reliable." However, in his brief, Ramos only argues that the exhibit in question did not sufficiently incorporate the attached documents. Ramos did not brief whether the exhibit was properly authenticated. Thus, to the extent that he is arguing that the exhibit was not properly authenticated, he has inadequately briefed the issue. See Tex. R. App. P. 38.1(h).