                             NUMBER 13-09-00468-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG


TEXAS DEPARTMENT OF
PUBLIC SAFETY,                                                               Appellant,

                                            v.

SYLVIA STELLA GUAJARDO,                                                       Appellee.


               On appeal from the County Court at Law No. 2
                        of Hidalgo County, Texas.


                         MEMORANDUM OPINION
              Before Justices Rodriguez, Benavides, and Vela
               Memorandum Opinion by Justice Benavides

       Appellant, the Texas Department of Public Safety (“DPS”), appeals from the trial

court’s reversal of the suspension of appellee’s, Sylvia Stella Guajardo, driver’s license.

An administrative law judge (“ALJ”) upheld the suspension based on Guajardo’s refusal to
submit to a breath test. See TEX . TRANSP . CODE ANN . § 724.035 (Vernon 2009). On

appeal, DPS contends that the ALJ properly admitted portions of the officer’s written report

and that the trial court erred in reversing the suspension on grounds that the report was

inadmissable. We reverse the trial court’s judgment.

                                      I. BACKGROUND

       On December 18, 2008, just before midnight, Officer J.R. Ramirez observed

Guajardo driving her vehicle without its headlights on. Officer Ramirez pulled her over and

smelled alcohol. Guajardo admitted consuming alcohol and consented to field sobriety

tests. Officer Ramirez administered the tests and, based on her performance, found that

Guajardo “did not have the normal use of her mental and physical faculties.” Officer

Ramirez then arrested Guajardo for driving under the influence. See TEX . PENAL CODE

ANN . § 49.04 (Vernon 2003). Officer Ramirez read her the statutory warning (“DIC-24")

and requested a breath specimen. Guajardo signed the DIC-24 and refused to provide a

breath specimen, a refusal which results in an automatic one-hundred-eighty day driver’s

license suspension. See TEX . TRANSP . CODE ANN . § 724.032 (Vernon Supp. 2009). Officer

Ramirez submitted a report to DPS decribing the circumstances surrounding the arrest.

Guajardo subsequently requested an administrative hearing to contest her license

suspension. See 37 TEX . ADMIN . CODE § 17.8 (1999) (Texas Department of Public Safety,

Hearing Requests).

       At the hearing, DPS offered a single exhibit marked as “DPS #1,” which contained,

in order:   the Peace Officer’s Sworn report (“DIC-23"); a two-page printout from the

McAllen Police Department; a case narrative, a DWI interview sheet; and the DIC-24.

Guajardo objected to DPS #1, claiming that the DIC-23, which was notarized but not

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signed by Officer Ramirez, did not satisfy the public records exception to the hearsay rule.

See TEX . R. EVID . 803(8). Guajardo argued that the absence of a signature on the DIC-23

made the entire exhibit untrustworthy because it incorporated by reference the remainder

of the exhibit. The ALJ sustained Guajardo’s objection for the DIC-23, the first page of the

six-page exhibit, and admitted the remaining five pages. The ALJ upheld the suspension

of Guajardo’s license. Guajardo then appealed the ALJ’s decision. See TEX . TRANSP .

CODE ANN . § 524.041 (Vernon 1995), § 724.047 (Vernon 1999). The trial court reversed

the ALJ’s decision, and DPS appealed.

                                       II. DISCUSSION

       We review ALJ decisions concerning driver’s license revocation under the

substantial evidence standard. Tex. Dep’t. of Pub. Safety v. Hutcheson, 235 S.W.3d 312,

314 (Tex. App.–Corpus Christi 2007, pet. denied). When a court applies the substantial

evidence standard, it cannot substitute its own view for that of the ALJ. Id. Instead, the

court must determine if there is “some reasonable basis” for the ALJ’s decsion. Id. “[W]e

review the trial court's judgment under a substantial evidence review de novo.” Tex. Dep’t.

of Pub. Safety v. Struve, 79 S.W.3d 796, 800 (Tex. App.–Corpus Christi 2002, pet.

denied).

       A court reviewing an agency decision under the substantial evidence standard

       shall reverse or remand the case for further proceedings if substantial rights
       of the appellant have been prejudiced because the administrative findings,
       inferences, conclusions, or decisions are:

       (A) in violation of a constitutional or statutory provision;

       (B) in excess of the agency's statutory authority;

       (C) made through unlawful procedure;

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       (D) affected by other error of law;

       (E) not reasonably supported by substantial evidence considering the reliable
       and probative evidence in the record as a whole; or

       (F) arbitrary or capricious or characterized by abuse of discretion or clearly
       unwarranted exercise of discretion.

TEX . GOV’T CODE ANN . § 2001.174(2) (Vernon 2008).

       We review the decision of an ALJ to admit or exclude evidence under an abuse of

discretion standard. Struve, 79 S.W.3d at 800. Certain records and reports are excepted

from the hearsay rule, including:

       [r]ecords, 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.

TEX . R. EVID . 803(8). Neither party contests that DPS #1 satisfies the preliminary

requirements of the public records exception from hearsay. See id. Guajardo, however,

argues that the exhibit is not trustworthy and that, because the ALJ sustained her objection

to the DIC-23, and the DIC-23 incorporated the remainder of the report by reference, the

entire report was inadmissable.

       Evidence offered under rule 803(8) is presumptively admissible.          Beavers v.




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Northrop Worldwide Aircraft Servs., Inc., 821 S.W.2d 669, 675 (Tex. App.–Amarillo 1991,

writ denied); see TEX . R. EVID . 803(8).             The party asserting that the evidence is

untrustworthy bears the burden of proof. See Beavers, 821 S.W.2d at 675. The ALJ

examined the evidence and sustained Guajardo’s objection to the first page of the exhibit,

the DIC-23. The ALJ found the remainder of DPS #1 to be trustworthy and admitted it into

evidence. DPS contends that the entirety of DPS #1 was admissible despite the lack of

a signature on the DIC-23. Guajardo asserts that because the DIC-23 incorporates the

remainder by reference and because the DIC-23 was inadmissable, the remainder was

inadmissable unless independently offered by DPS.1 Guajardo appears to be arguing that

the DIC-23 is an affidavit and that the remaining documents are merely attachments to the

affidavit. We disagree.

        When a person refuses to take a breath test, the officer must “make a written report

of the refusal to the director of the department . . . [that] contain[s] a copy of the refusal

statement . . . or a statement signed by the officer that the person refused to . . . submit

to the taking of the requested specimen . . . and sign the requested statement.” TEX .

TRANSP . CODE ANN . § 724.032. The transportation code requires a written report, not an

affidavit. See id. Furthermore, the code only requires a signature when the person refuses

to sign the DIC-24, which did not occur in Guajardo’s case. See id.

        Guajardo next argues that the evidence should have been re-offered independently

after the ALJ struck the first page of DPS #1. We disagree. When there is a proper



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           In her brief, Guajardo notes that “[b]ecause the ALJ sustained Guajardo's objection in part and
denied it in part at the adm inistrative hearing, there was no need to re-offer the evidence.” It appears as
though Guajardo agrees that DPS did not need to re-offer the other docum ents, but out of an abundance of
caution, we address her contention anyway.



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objection, a trial court (or an ALJ) can strike inadmissable portions of evidence. See

Celotex Corp. v. Tate, 797 S.W.2d 197, 206 (Tex. App.–Corpus Christi 1990, writ dism’d

by agr.); see also Speier v. Webster College, 616 S.W.2d 617, 619 (Tex. 1981). Appellee

directs us to no case law that suggests otherwise.

       Having determined that the evidence was properly admitted in the administrative

hearing, we must determine whether there was a reasonable basis for the ALJ’s decision

to uphold Guajardo’s license suspension. Hutcheson, 235 S.W.3d at 314. When a person

refuses to provide a breath specimen in an alcohol related offense, a police officer may

suspend that person’s license. See TEX . TRANSP . CODE ANN . § 724.035. DPS had to prove

four things to uphold Guajardo’s license suspension: (1) reasonable suspicion or probable

cause to stop or arrest Guajardo; (2) probable cause to believe that Guajardo was

intoxicated while operating her vehicle; (3) that Officer Ramirez requested a breath

specimen; and (4) that Guajardo refused. See id. § 724.032; Tex. Dep’t Pub. Safety v.

Pucek, 22 S.W.3d 63, 64 (Tex. App.–Corpus Christi 2000, no pet.) (stating that if an ALJ

finds that each of the four issues are satisfied, the ALJ must uphold the suspension order).

       The admitted portion of DPS #1—the printout from the McAllen Police Department,

the case narrative, the DWI interview sheet, and the DIC-24—clearly demonstrate the four

necessary elements required to uphold the suspension: (1) in his case narrative, Officer

Ramirez states that he stopped Guajardo because she was driving her car at night with its

headlights off; (2) both the case narrative and DWI interview sheet describe Guajardo’s

poor performance during field sobriety tests; (3) the case narrative and the DIC-24

document Ramirez’s request that Guajardo submit to a breath test and her refusal.

Accordingly, we find that the ALJ’s decision to uphold the license suspension was



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supported by substantial evidence. See Hutcheson, 235 S.W.3d at 314. Thus, the trial

court erred in reversing the suspension on grounds that the report was inadmissable. See

Struve, 79 S.W3d at 800.

                                    III. CONCLUSION

      We reverse the trial court’s judgment and render judgment reinstating the ALJ’s

order authorizing the suspension of Guajardo’s driver’s license.




                                                      __________________________
                                                      GINA M. BENAVIDES,
                                                      Justice


Delivered and filed the
29th day of July, 2010.




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