IN THE INTEREST OF E. S. AND A. G., CHILDREN--Appeal from County Court at Law No. 5 of Nueces County

SUPREME COURT CASES

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State: Texas

Court: Criminal Court of Appeals

Docket No: 13-10-00100-CV

Case Date: 12/21/2010

Plaintiff: RAYMOND DESMOND MURRAY

Defendant: THE STATE OF TEXAS (Original)

Preview:Alvino G. Ramos v. Texas Department of Public Safety-
-Appeal from County Court at Law No 3 of Bexar
County
MEMORANDUM OPINION
No. 04-05-00389-CV
Alvino G. RAMOS,
Appellant
v.
TEXAS DEPARTMENT OF PUBLIC SAFETY,
Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 300112
Honorable H. Paul Canales , Judge Presiding
Opinion by: Karen Angelini , Justice
Sitting: Catherine Stone , Justice
Karen Angelini , Justice
Sandee Bryan Marion , Justice
Delivered and Filed: March 1, 2006
AFFIRMED
On January 26, 2005, an administrative law judge ("ALJ") authorized the suspension of Alvino Ramos's driver's
license in connection with his refusal to provide a breath specimen when requested by a peace officer who had
probable cause to believe he was driving while intoxicated. At the hearing, Ramos objected to the admission of Exhibit
DPS-1, arguing that it was not sufficiently identified to be reliable. The ALJ overruled his objection, and Ramos
appealed his suspension to the trial court. The trial court affirmed the ALJ's decision. Ramos now appeals arguing that
Exhibit DPS-1 should not have been admitted.
We review administrative rulings on the admission of evidence under an abuse of discretion standard. Tex. Dep't of
Pub. Safety v. Pruitt, 75 S.W.3d 634, 637 (Tex. App.--San Antonio 2002, no pet.). A court abuses its discretion if it
acts without reference to any guiding rules and principles or acts arbitrarily and unreasonably. See Tex. Dep't of Pub.
Safety v. Mendoza, 956 S.W.2d 808, 810-11 (Tex. App.--Houston [14th Dist.] 1997, no pet.).
After a person has been arrested and has refused to submit to a breath test, a peace officer is required to submit a
written report of the incident to the director of the Department of Public Safety. Tex. Transp. Code Ann. 724.032
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(Vernon 1999). According to Ramos, Exhibit DPS-1 should not have been admitted into evidence because it was not
properly authenticated or "sufficiently identified to be reliable." (1) Exhibit DPS-1 is a total of six pages. The first
page is titled "Peace Officer's Sworn Report," and under section "A" of the report, it states the following: "Contained
in report(s) incorporated by reference for all purposes as if written and copied herein. Specify report(s) or document(s):
DIC 23, 24, 25, DWI report, Supp." Further, in the blank beside "No. of pages," the peace officer wrote "6." Ramon
complains that this language does not specifically identify the documents being incorporated:
DPS-1 states that it is incorporating by reference "DIC 23, 24, 25, DWI report, Supp." These labels for the instruments
sought to be incorporated by reference do not sufficiently identify [the documents that are] in fact submitted are the
documents intended by the reporting officer [to be submitted] since several pages of the report and supplement do not
identify the arrested person by name. (emphasis added).
In support of his argument, Ramos relies primarily on Bradley v. First National Bank of Sudan, 470 S.W.2d 273, 275
(Tex. Civ. App.--Amarillo 1971, writ ref'd n.r.e.). In Bradley, the appellee, as payee, filed an unsworn petition seeking
recovery against the appellant, as maker, on a promissory note. Id. at 274. The petition referenced an attached copy of
a note which was not sworn to or certified. Id. After the appellant answered, the appellee filed a motion for summary
judgment, attaching an affidavit and deposition in support. Id. The affidavit recited that the note was renewed on
November 1, 1969, while the copy of the note attached to the petition was dated August 1, 1969.Id. "Thus, the affidavit
describe[d] a note the date of which is not in accordance with the date of the only note appearing in the record." Id.
Additionally, the motion for summary judgment described the note as being due on November 1, 1969, while the
petition and attached copy showed the due date to be November 11, 1969. The court noted that "[t]hese discrepancies
or inaccurate references to the copy of the note are not explained or clarified in appellee's pleadings, supporting
affidavit, or deposition." Id. As such, the court held that summary judgment was improperly granted:
[A]ppellant's only sworn pleading mentions a note with a renewal date which does not appear elsewhere in the record
and varies with the date shown on the only copy of a promissory note found in the record. Also, the due dates shown
on the face of such note are inconsistent. It is our opinion that the ambiguous and confusing recitations in the various
instruments above mentioned do not constitute accurate or sufficient "incorporation by reference."
Id. at 275.
Applying Bailey's holding, Ramos argues that the recitations in Exhibit DPS-1 are ambiguous and confusing because
"several pages of the report and supplement do not identify the arrested person by name." We disagree. Exhibit DPS-1
totals six pages. The front page, DIC-23, "Peace Officer's Sworn Report," clearly identifies Ramos by name. The
second through fourth pages are the continuation of one form, Form 24-1A, "DWI/Traffic Case Report." The first page
of Form 24-1A identifies Ramos by name and case number. The second page of Form 24-1A identifies Ramos by case
number. Although the third page of Form 24-1A does not identify Ramos by name or case number, it is clearly the
continuation of Form 24-1A. The fifth page is Form 24-FSC, "DWI/Traffic Case Report- Supplement," and includes
both Ramos's name and case number. The sixth page is DIC-24, "Statutory Warning," and also includes Ramos's
name.
The purpose of these documents is to show that the police officer had probable cause to believe that Ramos was
driving while intoxicated. It is obvious from the record that these documents pertain to Alvino Ramos. They describe
the circumstances of his arrest and contain the officer's signature. Even though the third page of Form 24-1A does not
identify Ramos by name or case number, it is obviously a continuation of the previous pages. See Barnes v. State, 876
S.W.2d 316, 327-28 (Tex. Crim. App. 1994) (holding that appendices physically attached to the search warrant were
implicitly incorporated within the affidavit, containing information which was obviously continuation of the affidavit's
paragraph setting forth basis for probable cause, making affidavit sufficient to support search warrant, though
appendices were not individually signed or sworn to and were not expressly incorporated by reference).
Ramos also argues that the trial court erred in admitting Exhibit DPS-1 because although it references DIC-25, a
document titled "Notice of Suspension," DIC-25 was not attached. Therefore, according to Ramos, the "complete
absence of DIC-25 is suspicious" because the first page of Exhibit DPS-1states that the total number of pages is six.
According to Ramos, however, if DIC-25 had been included in DPS-1, then the exhibit would total seven pages, not
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six. However, whether the documents are inaccurate or whether there are pages missing from DPS-1 affects the weight
to be given the evidence, not its admissibility. See Adams v. State, 985 S.W.2d 582, 584 (Tex. App.--Eastland 1998,
pet. ref'd) (holding that the trial court did not abuse its discretion in admitting medical records even though the
affidavits misstated the number of pages contained in the medical records and even though pages might be missing
from the medical records because when there is no evidence showing that the source of the information or the method
or circumstances of the medical records' preparation was not trustworthy, "[w]hether the affidavits are inaccurate or
whether there are pages missing from the medical records should affect the weight to be given the evidence not the
admissibility").
Therefore, we hold that the ALJ did not abuse his discretion by admitting DPS-1 into evidence and affirm the
judgment of the trial court.
Karen Angelini , Justice
1. We note that Ramos has framed his issue as the following: "The trial court erred and abused its discretion in
admitting the evidence because it was not properly authenticated or sufficiently identified to be reliable." However, in
his brief, Ramos only argues that the exhibit in question did not sufficiently incorporate the attached documents.
Ramos did not brief whether the exhibit was properly authenticated. Thus, to the extent that he is arguing that the
exhibit was not properly authenticated, he has inadequately briefed the issue. See Tex. R. App. P. 38.1(h).
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