Texas Department of Public Safety v. Timothy Albert Delaney--Appeal from County Court at Law No 2 of Victoria County

 NUMBER 13-04-240-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

TEXAS DEPARTMENT OF

PUBLIC SAFETY, Appellant,

v.

TIMOTHY ALBERT DELANEY, Appellee.

On appeal from the County Court at Law No 2

of Victoria County, Texas.

MEMORANDUM OPINION

Before Justices Ya ez, Castillo, and Garza

Memorandum Opinion by Justice Garza

The Texas Department of Public Safety (Athe Department@) appeals a judgment reversing the suspension of Timothy Albert Delaney=s driver=s license. Following a hearing by the State Office of Administrative Hearings, an administrative law judge (AALJ@) upheld the suspension of Delaney=s license for a period of 180 days. See Tex. Transp. Code Ann. '' 524.012(d), 524.031 (Vernon 1999). Delaney appealed to the county court, contending that the ALJ=s refusal to allow him to examine four witnesses violated his due process rights. The county court agreed and overturned the ALJ=s suspension. On appeal, the Department contends that the county court erred in impliedly holding that error had been preserved. We agree. We reverse the judgment of the county court and reinstate the ALJ=s decision.

Delaney was arrested for driving while intoxicated following a single-car accident where Delaney=s vehicle skidded 436 feet, clipped off a sign post, passed through two sides of a goat pen, killed a goat, and came to rest after striking a shed. At the scene of the accident, Trooper Gabriel Huber approached Delaney. Delaney admitted to being the driver of the vehicle, told the trooper that he was coming from a bar in downtown Victoria, where he had a glass a wine, and explained that his vehicle had a Ablowout.@ Trooper Huber observed Delaney to have a strong odor of alcohol, glassy and bloodshot eyes, and slurred speech. He also observed that Delaney was having difficulty maintaining his balance. Trooper Huber asked Delaney to submit to field sobriety tests, which he refused. Delaney was arrested and, after being read the statutory warning, was asked to submit to a breathalyzer. Delaney refused.

Delaney requested an administrative hearing to contest the suspension of his license for refusing the breath test. See Tex. Transp. Code Ann. '' 524.012(d), 524.031. At the hearing, the Peace Officer=s Sworn Report was offered and admitted. Delaney testified that he was coming from a bar where he had no more than two drinks, that he had not lost the use of his faculties, and that the accident was the result of a blowout. A neighbor, Greg Goodner, who was at the scene of the accident, testified that Delaney showed no signs of intoxication, but also admitted that he had no training in the detection of intoxication. Delaney had also brought four other witnesses who, he said, would Arepeat exactly the basic testimony of [Goodner].@ However, the ALJ disallowed the testimony of these additional witnesses.[1] After the hearing, the ALJ found that there was reasonable suspicion to stop or make contact with Delaney and probable cause to arrest him; that there was probable cause to believe Delaney was driving a motor vehicle in a public place while intoxicated; that Delaney had been read the statutory warning form; and that he was asked to give a specimen of breath. The ALJ also found that Delaney had refused the breath test.

The admission or exclusion of evidence is a matter within the trial court's discretion. Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 861 (Tex. App.BCorpus Christi 1999, pet. denied) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)). We review administrative rulings on the admission or exclusion of evidence under an abuse of discretion standard. See Tex. Dep't of Pub. Safety v. Mendoza, 956 S.W.2d 808, 810 (Tex. App.BHouston [14th Dist.] 1997, no pet.). A court abuses its discretion if it acts without reference to any guiding rules and principles or acts arbitrarily and unreasonably. Id. at 810 11. An appellate court must uphold the ALJ=s evidentiary ruling if there is any legitimate basis for the ruling, even if it was not previously urged. See State Bar v. Evans, 774 S.W.2d 656, 659 n.5 (Tex. 1989). To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court's ruling "probably caused the rendition of an improper judgment." Tex. R. App. P. 44.1(a). Reversible error does not usually occur in connection with rulings on questions of evidence, unless the appellant can demonstrate that the whole case turns on the particular evidence admitted or excluded. See Atlantic Mut. Ins. Co. v. Middleman, 661 S.W.2d 182, 185 (Tex. App.BSan Antonio 1983, writ ref'd n.r.e.). The exclusion of evidence is harmless if the evidence is merely cumulative of other evidence in the record. Reina v. Gen. Accident Fire & Life Assurance Corp., 611 S.W.2d 415, 417 (Tex. 1981); see also Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).

In its first issue, the Department contends that the county court erred in impliedly holding that Delaney had preserved the issue for review. It asserts that Delaney failed to preserve anything for the county court to review because Delaney made no objection to the administrative court=s ruling, made no offer of proof or bill of exceptions in regard to his additional witnesses, and did not show what evidence he wanted to offer through these witnesses. See Tex. R. Evid. 103(a). Texas Rule of Evidence 103(a)(2) provides that error may not be predicated upon a ruling which excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which questions were asked. Tex. R. Evid. 103(a); Railsback v. State, 95 S.W.3d 473, 477 78 (Tex. App.BHouston [1st Dist.] 2002, pet. ref'd). An offer of proof needs to show the facts that a defendant wishes to prove; if it does not do so, the issue is not preserved for appellate review. Jenkins v. State, 948 S.W.2d 769, 775 (Tex. App.BSan Antonio 1997, pet. ref'd).

In addition to Goodner=s testimony, Delaney sought to introduce the testimony of four other witnesses.[2] Two of the witnesses were present at the scene of the accident and two were with Delaney prior to the accident. We first address whether the ALJ abused its discretion in excluding the testimony of the two witnesses who were present at the scene of the accident. Without deciding whether Delaney made an offer of proof sufficient to preserve the issue for appeal, we find that the trial court did not abuse its discretion in excluding the testimony of the two witnesses who were present at the incident. The State Office of Administrative Hearings (ASOAH@) has established rules limiting repetitious testimony. An ALJ has the authority and duty to limit irrelevant, immaterial, and unduly repetitious testimony, and reasonably limit the time for presentations. 1 Tex. Admin. Code '' 155.15(b)(7), 159.41(1) (Vernon 2005). Delaney testified as to his condition at the time of the accident; his witness, Goodner, also testified as to Delaney=s condition at the time of the accident. The two prospective witnesses Delaney wanted to call would have testified Aexactly@ as Goodner had done. Therefore, the two witnesses= testimony, that Delaney was not impaired and did not appear intoxicated, was already before the court by through Goodner=s testimony. Thus, the ALJ was within her discretion to exclude the testimony as repetitive.

Delaney argues that cumulativeness alone is not a basis for the exclusion of evidence. He cites to Bohmfalk v. Linwood, 742 S.W.2d 518, 521 (Tex. App.BDallas 1987, no writ), for the contention that the decisive factor is not whether the testimony is cumulative, but instead, whether the excluded testimony would have added substantial weight to his case. If so, he argues, it is error, possibly harmful error, to exclude the testimony. See id. However, Delaney has failed to provide us with any information as to how the testimony, although cumulative, would have added substantial weight to his case. Further, we find it unlikely that the excluded testimony would have added substantial weight to his case because the trial judge had already heard similar testimony and was aware that there were additional witnesses willing to testify as to Delaney=s condition. Moreover, we find it unlikely, that in light of the evidence showing Delaney was driving while intoxicated and refused to provide a breath specimen, the exclusion of the other witnesses= testimony caused the rendition of an improper judgment. We find that the testimony of these two witnesses would have been repetitious, and therefore, the ALJ did not abuse its discretion in excluding it.

As to the witnesses who were with Delaney prior to the accident, we note that Delaney failed to make an offer of proof at the ALJ hearing regarding the excluded testimony of these witnesses. See Tex. R. Evid. 103(a)(2); Akin v. Santa Clara Land Co., 34 S.W.3d 334, 339 (Tex. App.B San Antonio 2000, pet. denied) ("The failure to make an offer of proof containing a summary of the excluded witness's intended testimony waives any complaint about the exclusion of the evidence on appeal.").[3] By failing to make an offer of proof or a bill of exceptions, Delaney has presented nothing for review. See Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2); see also Chavez v. State, 6 S.W.3d 66, 69 (Tex. App.BSan Antonio 1999, pet. ref=d) (holding that defendant failed to present any error for appellate review where defendant failed to make offer of proof or bill of exceptions to show what questions defendant would have asked and what answers he expected); Jenkins v. State, 948 S.W.2d 769, 775 (Tex. App.BSan Antonio 1997, pet. ref=d) (finding when there is no bill of exception or offer of proof to show the facts the defendant could have proved, the issue was not preserved for appellate review); Garza v. State, 846 S.W.2d 936, 939 (Tex. App.BHouston [1st Dist.] 1993, pet. ref'd). We hold that the ALJ did not abuse its discretion in excluding the testimony of these two witnesses.

We reverse the judgment of the county court and reinstate the ALJ=s decision.

_______________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 18th day of August, 2005.

[1] Appellee states that the ALJ, sua sponte, ruled that Delaney could only have one witness testify. However, based upon the limited record available to us, we cannot determine the circumstances surrounding the ALJ=s decision to exclude the testimony. We note that the record reflects that, at some point prior to the hearing, Delaney=s attorney and the ALJ had discussed that the court would not allow repetitive testimony. The record reflects that, after Goodner=s tesimony, the following colloquy took place between the ALJ and Delaney=s attorney:

JUDGE SORENSON: Okay. Anything further, [counsel]?

[DELANEY=S COUNSEL]: Nothing further. I have some other witnesses, but I asked the Court before and it didn=t want repetitive testimony, and the other two witnesses I have would repeat exactly what B the basic testimony of this witness.

[2] The reporter=s record shows that Delaney offered only three witnesses. However, Delaney=s brief refers to five witnesses, three who were present at the scene of the incident (including Goodner) and two who were with Delaney prior to the accident.

[3] The following colloquy took place between Delaney=s attorney and the ALJ with regard to the two witnesses who were with Delaney prior to the accident:

JUDGE SORENSON: And you said you had a witness, also, that was with Mr. Delaney prior to the incident. And I also told you B

[DELANEY=S COUNSEL]: Right.

JUDGE SORENSON: B I was not going to allow that testimony of that witness, as well.

[DELANEY=S COUNSEL]: All right. Well, we=llB

JUDGE SORENSON: Okay.