Vernon Hooker v. Texas Department of Public Safety

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-07-125 CV ____________________ VERNON HOOKER, Appellant V. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee On Appeal from the County Court at Law No. 2 Montgomery County, Texas Trial Cause No. 06-20,735 MEMORANDUM OPINION Vernon Hooker (1) appeals the suspension of his driver's license as a result of his refusal to take a test for alcohol concentration after he was involved in a car accident in Montgomery County on May 17, 2006. We affirm the trial court's judgment. Hooker challenged the suspension of his driver's license at an administrative hearing conducted pursuant to section 724.041 of the Texas Transportation Code. See Tex. Transp. Code Ann. § 724.041 (Vernon Supp. 2007). Over Hooker's objections, the administrative law judge admitted documents into evidence and issued an order suspending Hooker's driver's license for one hundred eighty days for refusing the alcohol concentration test. Hooker appealed the administrative ruling to the County Court of Montgomery County. See Tex. Transp. Code Ann. § 524.041 (Vernon 2007); § 724.047 (Vernon 1999). After hearing argument from both Hooker and DPS, the trial court affirmed the administrative ruling. Arguing the administrative judge erred in admitting several documents into evidence, Hooker appeals the trial court's order affirming the administrative ruling. The Texas Rules of Evidence apply to administrative license suspension hearings with certain statutory exceptions. See Tex. Gov't Code Ann. § 2001.081 (Vernon 2000); 1 Tex. Admin. Code § 159.23(b) (2007) (making Tex. Gov't Code § 2001.081 applicable to contested cases). We review administrative rulings on the admission or exclusion of evidence under the abuse of discretion standard applied to trial courts. See Tex. Dep't of Pub. Safety v. Silva, 988 S.W.2d 873, 876 (Tex. App.--San Antonio 1999, pet. denied);(citing Tex. Dep't of Pub. Safety v. Mendoza, 956 S.W.2d 808, 810 (Tex. App.--Houston [14th Dist.] 1997, no pet.)). A court abuses its discretion if it acts without reference to any guiding rules and principles. Silva, 988 S.W.2d at 876;(citing Mendoza, 956 S.W.2d at 810). In Hooker's four issues, he contends that the administrative judge erred in admitting the "Peace Officer's Sworn Report," known as form "DIC-23," (2) and five additional documents labeled "TLE-1Continuation (1/94) Page: 2 of 4," "TLE-1Continuation (1/94) Page: 3 of 4," "TLE-1Continuation (1/94) Page: 4 of 4," "THP-1 (1/94)," and "THP-1A (Rev. 9/03)." In his first issue, he argues the administrative judge erred in admitting the documents because they fail to comply with the self-authentication provision of Texas Rule of Evidence 902(2). See Tex. R. Evid. 902(2). Regardless of whether the documents are self-authenticated under Rule 902(2), the documents are self-authenticated under Rule 902(4). Rule 902(4) states that certified copies of public records are admissible without extrinsic evidence of authenticity: (4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2) or (3) of this rule or complying with any statute or other rule prescribed pursuant to statutory authority. Tex. R. Evid. 902(4). Review of the documents in question reveal that each page is stamped certified by Joyce Stevens, Custodian of Records Driver Improvement and Control Service, Texas Department of Public Safety, and attested, executed, and signed by Cynthia Tryon, "Authorized Deputy Custodian." The document complies with paragraph (1) of Rule 902. See Tex. R. Evid. 902(1). Under Rule 902(4), these documents require no extrinsic evidence of authenticity. See Tex. R. Evid. 902(4). We overrule Hooker's first issue. In his second and third issues, Hooker maintains the administrative judge erred in admitting the documents because they fail to comply with section 602.002(16) of the Texas Government Code. See Tex. Gov't Code Ann. § 602.002(16) (Vernon Supp. 2007). Section 602.002(16) grants a peace officer, as described by article 2.12 of the Texas Code of Criminal Procedure, the authority to administer an oath and a certificate of the fact if the oath is administered when the officer is engaged in the performance of the officer's duties and the administration of the oath relates to the officer's duties. See id. § 602.002(16)(A), (B). Officer Gray completed the "DIC-23" or "Peace Officer's Sworn Report." Officer Gray swore that he was a Texas Peace Officer, that he had probable cause to believe that Hooker was driving his vehicle under the influence of alcohol, and that Hooker refused the alcohol concentration test. Officer Burse administered the oath of the sworn report, as attested to at the bottom of the report. Officer Burse signed the Peace Officer's Sworn Report in his capacity as "Peace Officer." Hooker complains that Officer Burse's documentation of the oath administered was not sufficiently specific to establish that he was a peace officer under article 2.12, that the oath was administered when the officer was engaged in the performance of the officer's duties, and that the administration of the oath related to the officer's duties. Section 602.002(16) of the Texas Government Code permits a peace officer to administer the oath required for a "DIC-23." See id. Hooker presents no authority for his argument that a peace officer must identify himself as anything more than a peace officer when administering an oath and witnessing a signature. We do not read section 602.002(16) or article 2.12 as requiring Officer Burse to identify himself more specifically than by his designation as a "peace officer." See id.; Tex. Code Crim. Proc. Ann. art. 2.12 (Vernon Supp. 2007). His declaration that he was a peace officer identified him as one of the persons enumerated in article 2.12 and therefore authorized him to administer oaths under section 602.002(16). These documents comply with section 602.002(16). See Tex. Gov't Code Ann. § 602.002(16). We overrule Hooker's second and third issues. Last, Hooker complains that the administrative judge erred in admitting the documents because they fail to comply with Texas Rule of Evidence 803(8). See Tex. R. Evid. 803(8). Texas Rule of Evidence 803(8) provides an exception to the hearsay rule, even though the declarant is available as a witness: (8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth: (A) the activities of the office or agency; (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or (C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law; unless the sources of information or other circumstances indicate lack of trustworthiness. Id. "DIC-23s" are properly admitted as public records under Rule 803(8). See id.; Samuels-Wickham v. Tex. Dep't of Pub. Safety, 121 S.W.3d 829, 831 (Tex. App.--Fort Worth 2003, no pet.); Tex. Dep't of Pub. Safety v. Struve, 79 S.W.3d 796, 803-04 (Tex. App.--Corpus Christi 2002, pet. denied); Silva, 988 S.W.2d at 876; Tex. Dep't of Pub. Safety v. Gratzer, 982 S.W.2d 88, 90 (Tex. App.--Houston [1st Dist.] 1998, no pet.). However, here, Hooker maintains the administrative judge erred in admitting the documents because they lack trustworthiness. Rule 803(8) creates a presumption of admissibility, and it places the burden on the party opposing the admission of the report to show its untrustworthiness. Beavers v. Northrop Worldwide Aircraft Servs., Inc., 821 S.W.2d 669, 675 (Tex. App.--Amarillo 1991, writ denied). Hooker specifically points to the "Peace Officer's Sworn Report" in which Officer Gray, the affiant, incorporated by reference "TLE-1Documents" and neglected to fill in the blank for "No. of pages." Hooker argues that the documents in question lack trustworthiness because one cannot determine how many "TLE-1 Documents" Officer Gray presented or swore to in Officer Burse's presence, and that since only "TLE-1 Documents" were incorporated by reference it is unclear whether Officer Gray presented or swore to the "THP" documents. Under these facts, we cannot say that the administrative law judge abused his discretion by admitting the documents. We find Hooker's complaints regarding the documents to not overcome the presumption of admissibility. See Beavers, 821 S.W.2d at 675. We overrule Hooker's fourth issue and affirm the trial court's judgment. AFFIRMED. __________________________________ CHARLES KREGER Justice Submitted on June 14, 2007 Opinion Delivered January 17, 2008 Before McKeithen, C.J., Gaultney and Kreger, JJ. 1. According to documents in the record, Vernon Hooker is also known as Vernon Paul Hooker, Vernon Lloyd Hooker, Lloyd V. Hooker, Jr., Lloyd Vernon Hooker, Jr., and Lloyd Vernon Hooker. It is not apparent from the record how his name appears on his driver's license. 2. After a person has been arrested and has refused to submit to a breath or blood test, a peace officer must submit a written report of the incident to the director of the Department of Public Safety. Tex. Transp. Code Ann. § 724.032 (4) (Vernon Supp. 2007).