955 S.W.2d 441

(Cite as: 955 S.W.2d 441)

Court of Appeals of Texas,

Fort Worth.

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,

v.

Billy Vance BOND, Appellee.

No. 2-96-310-CV.

Oct. 23, 1997.

OPINION

RICHARDS, Justice.

Introduction

The Texas Department of Public Safety (DPS) appeals from a district court order that reversed an administrative decision upholding the suspension of appellee Billy Vance Bond's driver's license. In five points, DPS contends that the district court erred as a matter of law when it (1) … (2) impliedly found that the administrative court improperly admitted the arresting officer's testimony concerning the circumstances of Bond's initial traffic stop….

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Summary of Facts

On April 27, 1996, while on patrol, Officer Belva McClinton of the Gainesville, Texas Police Department observed Bond driving erratically. McClinton noticed Bond's truck speed up and slow down several times and swerve from left to right. When McClinton stopped Bond, she detected a strong odor of alcohol on his breath. She then called Trooper Dudley Ivie of DPS to assist her with conducting some field sobriety tests. Ivie observed that Bond could not balance himself during the one-leg stand test and that he had to use his arms for balance during the walk and turn test. Ivie also noted that Bond had a strong odor of alcohol on his breath and that his eyes were dilated.

A few moments later State Trooper Kameron Pierce arrived at the scene and performed an intoximeter test on Bond. Ivie testified that the intoximeter is a portable intoxilyzer used during roadside sobriety testing. Based on the results of the field sobriety tests and the intoximeter test, Ivie arrested Bond for driving while intoxicated (DWI). Ivie then took Bond to the Cooke County Sheriff's Department, gave him the required statutory warnings, [FN1] and asked him to submit to a breath test. Bond refused to submit to the breath test and refused to sign a form indicating his refusal.

FN1. Those warnings are found in section 724.015 of the Texas Transportation Code. See Tex. Transp. Code Ann. § 724.015 (Vernon Supp.1997).

Following Bond's refusal to provide a breath specimen, DPS issued a notice of suspension of Bond's driver's license in accordance *444 with section 724.035 of the Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 724.035 (Vernon Supp.1997). Bond requested a hearing under section 724.041 of the Texas Transportation Code, which was held on June 5, 1996, by telephonic conference with Administrative Law Judge Tanya Cooper. See Tex. Transp. Code Ann. § 724.041 (Vernon Supp.1997). At the hearing, Bond's attorney argued that DPS had failed to prove the required issues under section 724.042 of the Transportation Code, including whether reasonable suspicion or probable cause existed to stop or arrest Bond, whether probable cause existed that Bond was driving or in actual control of a motor vehicle in a public place while intoxicated, whether Bond was placed under arrest and asked to give a breath specimen, and whether Bond refused. See Tex. Transp. Code Ann. § 724.042 (Vernon Supp.1997). Bond's attorney alleged that the only evidence that could possibly substantiate these issues was hearsay and therefore not competent evidence.

The administrative court found by a preponderance of the evidence that DPS had met its burden of proof on all required issues under section 724.042 and sustained the suspension of Bond's driver's license for a period of 90 days. See Tex. Transp Code Ann. § 724.043 (Vernon Supp.1997). The findings of the administrative law judge were as follows:

(1) On April 27, 1996, reasonable suspicion to stop Bond existed based on Officer McClinton's observations.

(2) On the same date, probable cause existed that, Bond was operating a motor vehicle in a public place while intoxicated based on the observations of McClinton and Ivie and the field sobriety tests, including the intoximeter test. Thus, probable cause to arrest Bond existed.

(3) Bond was placed under arrest and was properly asked to submit a specimen of breath or blood as demonstrated by DPS's statutory warning form.

(4) After being asked to submit a specimen of breath or blood, Bond refused, as demonstrated by the peace officer's signed statement on the warning form.

Bond filed a petition for judicial review of Judge Cooper's order in the county court of Cooke County, Texas. See TEX. TRANSP. CODE ANN. § 524.041 (Vernon Supp.1997). Because the county court judge was not an attorney, the case was transferred to the 235th District Court of Cooke County. See id. In the district court proceeding, Bond alleged that there was insufficient evidence to support the administrative court's findings of fact because the testimony regarding reasonable suspicion and probable cause was based on Officer McClinton's hearsay statements. Bond alleged that the admission of this testimony violated his right to confrontation under the Sixth Amendment to the United States Constitution as well as article 1, section 10 of the Texas Constitution. Finally, he argued that he did not refuse to give a blood or breath specimen because he blew into the intoximeter at the scene of the stop. The DPS answered Bond's claims by filing a plea to the jurisdiction and a general denial.

On September 17, 1996, the district court issued an order reversing the administrative law judge's decision on the following grounds:

(1) Trooper Ivie did not forward to DPS a copy of the Notice of Suspension or Denial and the Refusal Report within five days after Bond's arrest, as required under section 724.032 of the Transportation Code;

(2) There was not credible evidence to support issues one or two in section 724.042 of the Transportation Code in that the only evidence produced at the administrative hearing was hearsay, which Bond's attorney properly and timely objected to;

(3) Bond gave a breath specimen at the scene of his arrest after he was under arrest. That breath specimen was taken under the provisions of section 724.016 of the Transportation Code;

(4) Section 724.016 does not provide that the breath specimen given must be given into an Intoxilyzer 5000 instrument.

DPS brings this appeal from this order.

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Reasonable Suspicion and Probable Cause

In setting aside the decision of the administrative law judge, the district court determined that there was not substantial evidence that reasonable suspicion to stop Bond existed or that probable cause to arrest him existed, since the only evidence produced at the administrative hearing in support of these issues was based on hearsay. In points two and three, DPS contends the district court erred as a matter of law in holding that the only evidence of reasonable suspicion or probable cause was hearsay.

[10] DPS correctly argues that Ivie's oral and documentary statements regarding what he had been told by Officer McClinton concerning her initial stop of Bond were admissible under the public records exception to the hearsay rule. See Tex.R. Civ. Evid. 803(8). *446 Texas Rule of Civil Evidence 803(8) provides that the following are not excluded as hearsay:

Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, or (C) 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. Civ. Evid. 803(8). Rule 803(8) specifically states that a public record or report may be in any form. Id. The information conveyed to Ivie by McClinton concerning her observations of Bond's driving and the reasons why she stopped him were made under a "duty imposed by law as to which matters there was a duty to report." Porter v. Texas Dep't of Pub. Safety, 712 S.W.2d 263, 264-65 (Tex.App.--San Antonio 1986, no writ) (holding that the officer's sworn report was admissible as an exception to hearsay under Rule 803(8)).

Because McClinton's report would be admissible as a hearsay exception under Rule 803(8), the statements she made to Ivie are admissible as incorporated in his report, which was also made pursuant to a duty imposed by law. The written version of the report was admitted into evidence. This report was admissible as a certified copy of a public record under Rules 803(8) and 902(4) of the Texas Rules of Civil Evidence and was properly admitted over Bond's hearsay objection. See Clement v. Tex. Dep't of Pub. Safety, 726 S.W.2d 579, 581 (Tex.App.--Fort Worth 1986, no writ); Porter, 712 S.W.2d at 264-65.

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