Reverse and Render; Opinion Filed June 12, 2014.




                                                   S
                                      Court of Appeals
                                                         In The


                               Fifth District of Texas at Dallas
                                                No. 05-13-01198-CV

                      TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
                                         V.
                               MEGAN LEIGH TODD, Appellee

                             On Appeal from the County Court at Law No. 2
                                          Hunt County, Texas
                                  Trial Court Cause No. CC1300106

                                     MEMORANDUM OPINION
                                  Before Justices Fillmore, Evans, and Lewis
                                          Opinion by Justice Evans
          The Texas Department of Public Safety appeals from the trial court’s judgment reversing

an administrative decision suspending Megan Leigh Todd’s driver’s license. In its sole issue, the

Department generally contends the trial court erred in ruling the peace officer’s report was not

admissible and that specific statements within the report were inadmissible hearsay and

conclusory. 1 For the reasons that follow, we reverse the trial court’s judgment and render

judgment reinstating the administrative order.

          The following facts were taken from the peace officer’s report admitted into evidence at

the administrative hearing. On October 9, 2012, Commerce Police Officer Brandon Quimbey

responded to assist Officer Clark on a traffic stop possibly involving an intoxicated person.


   1
       Appellee has not filed a brief with this Court.
Clark advised Quimbey that he had observed a vehicle traveling “at a high rate of speed above

the posted speed limit, weave over the lane divider and travel on the wrong side of the roadway.”

Clark also stated that when he activated his lights to pull the vehicle over, the vehicle continued

for a short distance before coming to an abrupt stop. Quimbey identified Megan Leigh Todd as

the driver of the vehicle stopped by Clark and noticed that Todd exhibited numerous symptoms

of intoxication. Quimbey told Todd why she had been stopped, and Todd “confirmed” the

reason for the stop and apologized. After failing field sobriety tests administered by Quimbey,

Todd was offered the opportunity to provide a breath sample. She refused. Quimbey then

placed Todd under arrest for driving while intoxicated, read her the statutory warning, and

requested a blood specimen. Todd refused the request.

        As a result of her refusal to provide a specimen, the Department suspended Todd’s

license for 180 days pursuant to section 724.035 of the Texas Transportation Code. Todd

requested an administrative hearing to challenge the suspension.            At the hearing, the

Department’s evidence consisted of Quimbey’s “Peace Officer’s Sworn Report,” which was

admitted into evidence over Todd’s objections. Todd had unsuccessfully argued that the report

was untrustworthy because it was missing pages, was sworn to on October 9, 2012, but the

report’s pages had a date of October 10, 2012 in the lower left corner, and the report contained

inadmissible hearsay and conclusory statements from Clark.               After the hearing, the

administrative law judge sustained the suspension of Todd’s driver’s license.          Todd then

appealed the administrative decision to the trial court reasserting the objections she made at the

administrative hearing. The trial court reversed the administrative decision and the Department

filed this appeal.

        In the trial court and on appeal, an administrative decision on a license suspension is

reviewed under a substantial evidence standard. Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d

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128, 131 (Tex. 1999). Our review of the trial court’s substantial evidence review is de novo. See

Tex. Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006). Under the applicable

standard, the administrative decision may not be reversed unless it prejudices Todd’s substantial

rights and it is (1) in violation of a constitutional or statutory provision, (2) in excess of the

agency’s statutory authority, (3) made through unlawful procedure, (4) affected by other error or

law, (5) not reasonably supported by substantial evidence considering the reliable and probative

evidence in the record as a whole, or (6) arbitrary or capricious or characterized by an abuse of

discretion or a clearly warranted exercise of discretion. TEX. GOV’T CODE ANN. § 2001.174(2)

(West 2008).

       The resolution of this appeal turns on the admissibility of Quimbey’s sworn police report,

which was the only evidence offered by the Department during the administrative hearing. The

report was admitted into evidence by the administrative law judge over Todd’s various

objections. The trial court reversed the administrative decision, concluding “[t]he officer’s

report itself lacked any indicia of reliability because of his swearing to something that existed on

October 9, when the evidence admitted was created on October 10.” The trial court also

determined the report contained only hearsay and conclusory statements from Officer Clark and,

thus, could not support a finding of probable cause for the initial stop.

       The Texas Rules of Evidence are applicable to administrative proceedings such as the

one held in this case. See Tex. Dept. of Pub. Safety v. Caruana, 363 S.W.3d 558, 560 (Tex.

2012). Generally, a police officer’s report is admissible in license suspension proceedings under

the business records exception to the hearsay rule even when the report is unsworn. See TEX. R.

EVID. 803(8)(C); Caruana, 363 S.W.3d at 560–63. As noted in Caruana, the report’s veracity is

assured by the prohibition against false statements in government records. Id. at 562–63.




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       Todd argued Quimbey’s report was untrustworthy and therefore inadmissible because the

officer swore to the report the day before a date noted on the report and because the report was

missing pages. Under rule 803(8)(C), the party opposing the report’s admission must prove its

untrustworthiness. See Lozano v. State, 359 S.W.3d 790, 818 (Tex. App.—Fort Worth 2012, pet.

ref’d). The untrustworthiness determination is not based on the credibility of the report itself or

the testimony contained in the report, but rather the report’s reliability considering the sources of

information and other circumstances. Id. at 817–18. Todd’s objections did not attack the

sources of the information for Quimbey’s report. Instead, she attacked the credibility of the

report itself based on the missing pages and the discrepancy between the date on the report pages

and the attached affidavit (DIC-23). Although these complaints might affect the weight to be

given Quimbey’s report, they do not impact its admissibility as an investigative report made

pursuant to authority granted by law. See Tex. Dept. of Pub. Safety v. Escobedo, No 13-07-

00498-CV, 2008 WL 2895710, at *3 (Tex. App.—Corpus Christi July 29, 2008, no pet.) (mem.

op.) (sworn police report missing booking sheet did not preclude admission into evidence); see

also Ramos v. Tex. Dep’t of Pub. Safety, 04-05-00389-CV, 2006 WL 467969, at *2 (Tex. App.—

San Antonio March 1, 2006, no pet.) (mem. op.) (sworn report admissible even though it listed

incorrect number of pages and some attachments did not name arrestee).

       Todd’s complaints with respect to hearsay and conclusory statements contained within

the report did not affect the report’s admissibility. Contrary to Todd’s assertion, Quimbey’s

statements in his report about what he had been told by Clark about the initial stop of Todd were

admissible. See TEX. R. EVID. 803(8)(c) and 805; Tex. Dept. of Pub. Safety v. Bond, 955 S.W.2d

441, 445–46 (Tex. App.—Fort Worth 1997, no pet.) (statements in officer’s report from another

officer regarding initial stop admissible over hearsay objection); Tex. Dept. of Pub. Safety v.

Duggin, 962 S.W.2d 76, 80 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (probable cause

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affidavit admitted over hearsay objection that it contained some other officer’s observations). To

the extent the trial court characterized Clark’s statements supporting the initial stop as

conclusory, we disagree.     According to Quimbey’s report, Clark observed Todd’s vehicle

traveling at a high rate of speed above the posted speed limit and “weave over the lane divider

and travel on the wrong side of the roadway.” These are specific, articulable facts that Clark

witnessed about Todd’s driving behavior regarding the observed traffic code violations of unsafe

speed and driving on the wrong side of the road by Todd. See TEX. TRANSP. CODE ANN.

§§ 545.351 and 545.051(a) (West 2011). Accordingly, the trial court erred in reversing the

administrative decision on this basis.

       We conclude the administrative law judge acted within his discretion in admitting

Quimbey’s report and the administrative decision is supported by substantial evidence. We

therefore reverse the trial court’s order and render judgment reinstating the administrative law

judge’s decision authorizing the suspension of Todd’s driving license.




                                                     /David Evans/
                                                     DAVID EVANS
                                                     JUSTICE

131198F.P05




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                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

TEXAS DEPARTMENT OF PUBLIC                            On Appeal from the County Court at Law
SAFETY, Appellant                                     No. 2, Hunt County, Texas
                                                      Trial Court Cause No. CC1300106.
No. 05-13-01198-CV          V.                        Opinion delivered by Justice Evans,
                                                      Justices Fillmore and Lewis participating.
MEGAN LEIGH TODD, Appellee

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that:
        The administrative law judge's decision authorizing the suspension of Megan
        Leigh Todd's driving license is reinstated.
        It is ORDERED that appellant Texas Department of Public Safety recover its costs of
this appeal from appellee Megan Leigh Todd.


Judgment entered this 12th day of June, 2014.




                                                      /David Evans/
                                                      DAVID EVANS
                                                      JUSTICE




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