      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00836-CV



                         Texas Department of Public Safety, Appellant

                                                  v.

                                   Kevin Ray Gandy, Appellee


                FROM THE COUNTY COURT AT LAW OF COMAL COUNTY
          NO. 2005CV0470, HONORABLE BRENDA CHAPMAN, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The Texas Department of Public Safety appeals the county court at law’s reversal of

an administrative decision authorizing the suspension of Kevin Ray Gandy’s driver’s license. See

Tex. Transp. Code Ann. § 524.041 (West 1999). Because we find that substantial evidence exists

in the administrative record to support the license suspension, we reverse and render judgment

affirming the administrative law judge’s decision.


                      FACTUAL AND PROCEDURAL BACKGROUND

               On June 15, 2005, at 5:40 p.m., Department of Public Safety trooper Vance Weltner

observed Gandy driving a van in Comal County, Texas, with an expired license plate registration.

During a traffic stop of the vehicle, Weltner noticed an odor of alcohol on Gandy’s breath and that

Gandy’s eyes were bloodshot. Weltner administered the standardized field sobriety tests and

observed all six points on the horizontal gaze nystagmus test, as well as Gandy’s inability to balance
or follow directions. Gandy admitted to drinking, and Weltner found a cold can of beer with

condensation on it in the car. Weltner arrested Gandy and requested a breath test. Gandy consented,

producing blood-alcohol concentrations of 0.111 and 0.112, both of which are greater than the legal

limit of 0.08 for driving.     See Tex. Pen. Code Ann. §§ 49.04 (prohibiting driving while

intoxicated), .01(2) (defining “intoxicated”) (West 2003).

                The Department suspended Gandy’s driver’s license for failing the breath test. Gandy

requested a hearing to challenge the suspension, and the State Office of Administrative Hearings

held the hearing on August 15, 2005. The Department offered four documents into evidence:

(1) Weltner’s sworn report, (2) the technical supervisor’s affidavit certifying the breath test results,

(3) a printout of the breath test machine’s results, and (4) a copy of Gandy’s driving record. The ALJ

admitted each item over Gandy’s objections. Gandy offered no evidence of his own.

                Gandy’s objections centered on defects in Weltner’s sworn report, which was a pre-

printed Department form with checkboxes and blanks filled in by Weltner and notarized.

Specifically, Gandy objected to the admission of Weltner’s report because the trooper failed to write

his and Gandy’s names in the introductory portion to show the subject of the sworn report; he

incorporated his offense report, but failed to input its number of pages; and he failed to check a box

to note whether Gandy had provided a breath or blood specimen. Gandy argued that because of the

defects the ALJ should not admit the Department’s other evidence.

                The ALJ sustained the Department’s suspension of Gandy’s driver’s license, and

Gandy appealed to the Comal County Court at Law. The county court reversed the ALJ’s decision,

citing lack of substantial evidence, and this appeal followed.



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                                           ANALYSIS

               In two issues, the Department argues that the county court erred because the ALJ

acted within his discretion by admitting the Department’s evidence, and the ALJ’s decision was

supported by substantial evidence.


Admission of Weltner’s sworn report

               We review an agency’s rulings on the admission or exclusion of evidence under the

abuse of discretion standard we apply to trial courts. City of Amarillo v. Railroad Comm’n, 894

S.W.2d 491, 495 (Tex. App.—Austin 1995, writ denied). A court abuses its discretion if it acts

without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241-42 (Tex. 1985).

               In his appeal to the county court, Gandy argued that improperly admitted evidence

was the “sole basis for the ALJ’s findings, inferences, and/or decisions.” Gandy’s evidentiary

objections in the administrative hearing centered on the omissions in Weltner’s sworn report. The

report states that it incorporates a document titled C05-06-1535 and a statutory warning labeled DIC-

24. Attached to the sworn report are a three-page offense report with C05-06-1535 on each page,

a DIC-24 statutory warning form signed by Gandy, and a DWI interview form identifying Weltner

as Gandy’s interviewer.

               We measure the sufficiency of an affidavit by whether the averments contained in it

are direct and unequivocal and whether perjury can be assigned upon it. Brownlee v. Brownlee, 665

S.W.2d 111, 112 (Tex. 1984); Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex. 1975). Mere clerical

omissions which do not obscure meaning will not invalidate an affidavit. Minyard v. Southern Pipe

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& Supply Co., 563 S.W.2d 332, 333 (Tex. App.—Dallas 1978, writ ref’d) (affiant’s name not

inserted into blank in affidavit’s introduction).     Courts must view sworn affidavits of law

enforcement officers in a commonsense, not hypertechnical, fashion. Hesskew v. Texas Dep’t of

Pub. Safety, 144 S.W.3d 189, 192 (Tex. App.—Tyler 2004, no pet.); see United States v. Ventresca,

380 U.S. 102, 109 (1965) (“[C]ourts should not invalidate the [search] warrant by interpreting the

affidavit in a hypertechnical, rather than a commonsense, manner.”). Our sister court has found that

certain defects in an officer’s sworn report do not preclude admission of the report into evidence.

See Texas Dep’t of Pub. Safety v. Pruitt, 75 S.W.3d 634, 637-38 (Tex. App.—San Antonio 2002,

no pet.) (sworn report cited incorrect statute); see also Ramos v. Texas Dep’t of Pub. Safety, No. 04-

05-00389-CV, 2006 Tex. App. LEXIS 1583, at *5-8 (Tex. App.—San Antonio Mar. 1, 2006, no pet.)

(mem. op) (sworn report listed incorrect number of pages and some attachments did not name

arrestee); Texas Dep’t of Pub. Safety v. Salinas, No. 04-03-00578-CV, 2004 Tex. App. LEXIS 4257,

at *4-5 (Tex. App.—San Antonio May 12, 2004, no pet.) (mem. op.) (officer name omitted from

introductory portion of sworn report).

               Even without considering the DWI interview, which was not incorporated by

reference into the sworn report, it is clear that Weltner’s sworn report refers to Gandy. The

incorporated offense report includes Gandy’s name, lists Weltner as the investigating officer, and

recounts the date, time, and details of Gandy’s arrest. The statutory warning includes Gandy’s name,

driver’s license number, and date of birth. It is signed by Weltner, Gandy’s arresting officer, and

includes the date, time, and county of Gandy’s arrest. The averments in the sworn report as a whole

are direct and unequivocal, and any procedural irregularities go to the weight of the evidence, not



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its admissibility. See Adams v. State, 985 S.W.2d 582, 584 (Tex. App.—Eastland 1998, pet. ref’d).

Therefore, we conclude that the ALJ did not abuse his discretion in considering the report.


Substantial evidence

               Courts review administrative license suspension decisions under the substantial

evidence standard. Mireles v. Texas Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999); see Tex.

Transp. Code Ann. §§ 524.041, .043 (West 1999); Tex. Gov’t Code Ann. § 2001.174 (West 2000).

A court applying the substantial evidence standard of review may not substitute its judgment for that

of the agency on questions committed to the agency’s discretion. Tex. Gov’t Code Ann. § 2001.174.

The issue for the reviewing court is not whether the agency’s decision was correct, but only whether

the record demonstrates some reasonable basis for the agency’s action. Mireles, 9 S.W.3d at 131.

Courts must affirm administrative findings in contested cases if there is more than a scintilla of

evidence to support them. Id. Any evidentiary ambiguities should be resolved in favor of the

administrative order with a finding of substantial evidence to support the ALJ’s decision. Pruitt, 75

S.W.3d at 639. Our review of the county court’s determination is de novo. See id. at 640.

               At the administrative hearing, the Department was required to prove by a

preponderance of the evidence that: (1) Gandy had a blood-alcohol concentration of 0.08 or greater

while operating a motor vehicle in a public place, and (2) the officer had reasonable suspicion to stop

or probable cause to arrest Gandy. See Tex. Transp. Code Ann. § 524.035(a) (West Supp. 2006).

               The offense report incorporated in Weltner’s affidavit, the technical supervisor’s

affidavit, and the printout of the breath test machine’s results each showed breath test results of

0.111 and 0.112. The test results were more than a scintilla of evidence to support the ALJ’s finding

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that Gandy had a blood-alcohol concentration of 0.08 or more. See Mireles, 9 S.W.3d at 132. The

decision to stop an automobile is reasonable where a police officer has probable cause to believe a

traffic violation has occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000). The

offense report states that Weltner stopped Gandy for an expired license plate registration, which is

a traffic violation, so there was more than a scintilla of evidence showing reasonable suspicion for

the stop. See Tex. Transp. Code Ann. § 502.402 (West 1999). Substantial evidence, therefore,

existed in the record to support the ALJ’s determination that the Department proved both required

elements.


                                         CONCLUSION

               Because we conclude that the ALJ did not abuse his discretion by admitting the

Department’s evidence and that there is substantial evidence in the record to support the ALJ’s

decision authorizing suspension of Gandy’s driver’s license, we reverse and render judgment

affirming the ALJ’s decision, and allow the recovery of filing fees pursuant to section 8.02 of the

civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 8.02 (West 2002).




                                              Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Reversed and Rendered

Filed: October 4, 2006

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