Texas Department of Public Safety v. Bryan Jason Saintes

Opinion

ACCEPTED 15-24-00092-CV

NO. 15-24-00092-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 3/10/2025 9:29 PM ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ CHRISTOPHER A. PRINE CLERK IN THE FIFTEENTH COURT OF APPEALS FILED IN AT AUSTIN, TEXAS 15th COURT OF APPEALS AUSTIN, TEXAS ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ 3/10/2025 9:29:44 PM TEXAS DEPARTMENT OF PUBLIC SAFETY, CHRISTOPHER A. PRINE Clerk Appellant, vs. BRYAN JASON SAINTES, Appellee. ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ Cause No. CV-0093124 In the County Court at Law No. 2 of Galveston County, Texas The Honorable Robert Mayfield, Judge Presiding ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ APPELLEE BRYAN JASON SAINTES’ BRIEF ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯

LAW OFFICE OF DAVID A. BRESTON

David A. Breston Texas State Bar Number: 90001478 1820 West Bell Street Houston, Texas 77019 Telephone: (713) 224-4040

COUNSEL OF RECORD FOR APPELLEE BRYAN JASON SAINTE

ORAL ARGUMENT NOT REQUESTED IDENTIFICATION OF THE PARTIES

The Department’s brief accurately provides a complete list of the

names of all interested parties to this proceeding. Tex. R. App. P.

38.2(a)(1)(A).

TABLE OF CONTENTS Page

COVER ……………………………………………………………………… i

IDENTIFICATION OF THE PARTIES ……………………………… ii

TABLE OF CONTENTS …………………………………………………. ii

TABLE OF AUTHORITIES …………………………………………….. iii

INTRODUCTION ……………………………………………………….. 1

STATEMENT OF THE CASE & PROCEDURAL HISTORY ……………………..……………………. 2

STATEMENT REGARDING ORAL ARGUMENT …………………. 3

ISSUES PRESENTED ………………………………………………….. 3

STATEMENT OF FACTS ……………………………………...………… 4

SUMMARY OF ARGUMENT ……………………………………………. 5

RESPONSIVE ARGUMENT ……………………………………………… 6

Standard of Review ……………………………….......…………..…. 6

ii The Rules of Evidence and Administrative Proceedings ……………………………………….. 8

A. Texas Rule of Evidence 803 ……………………………………. 8

Analysis …………………………………………………………….… 9

PRAYER ……………………………………………………………………… 13

CERTIFICATE OF SERVICE …………………………………..………... 15

CERTIFICATE OF COMPLIANCE ……………………………..………. 16

iii NO. 15-24-00092-CV ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯

IN THE FIFTEENTH COURT OF APPEALS AT AUSTIN, TEXAS

⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯

TEXAS DEPARTMENT OF PUBLIC SAFETY, Department, vs. BRYAN JASON SAINTES, Mr. Saintes.

⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯

Cause No. CV-0093124 In the County Court at Law No. 2 of Galveston County, Texas The Honorable Robert Mayfield, Judge Presiding

⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯

MR. SAINTES BRYAN JASON SAINTES’ BRIEF

⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯

TO THE HONORABLE JUSTICES OF THE FIFTEENTH COURT OF APPEALS:

Mr. Saintes Bryan Jason Saintes, by and through his undersigned

counsel of record, submits this responsive brief addressing the

Department’s contentions in its opening brief.

1 STATEMENT OF THE CASE & PROCEDURAL HISTORY

Mr. Saintes is unopposed to and incorporates by reference herein

the Department’s Statement of the Case. (DB at 2)1. See TEX. R. APP. P.

38.2(a)(1)(B).

The Department’s brief was initially due in this matter on

December 9, 2024. After being granted an unopposed2 extension in time

in which to file a brief in this matter on December 4, 2024, the

Department filed its brief on January 7, 2025.

Mr. Saintes’ brief was initially due in this matter on February 6,

2025. Mr. Saintes was granted an unopposed extension in time in which

to file a brief in this matter on February 11, 2025. Under the current

briefing schedule, Mr. Saintes’ brief is timely if filed on or before Monday,

March 10, 2025.

1 “DB” references the Department’s January 7, 2025, opening brief, followed by

the page number. For clarity of reference in the briefing, Mr. Saintes adopts the Department’s abbreviators and record citation convention. (DB at pp. 1-2).

2 All pre-briefing matters such as record supplementations and extensions were conferred upon and either unopposed or agreed to between the parties before being presented to the Court. 2 STATEMENT REGARDING ORAL ARGUMENT

Mr. Saintes does not request oral argument in this matter. Mr.

Saintes requests oral argument only if the Court grants the

Department’s request for such argument. The relevant factual and legal

issues are straight-forward, and the law is well-settled with respect to

the application of the Rules of Evidence and trial court rulings in this

regard. Thus, oral argument would not assist this Court in framing and

determining the issues. TEX. R. APP. P. 39.1.

ISSUE PRESENTED Mr. Saintes understands the Department’s complaint to be that

police offense reports are unqualifiedly admissible in their entirety under

Texas Rule of Evidence and that the trial court abused its discretion

when it removed Trooper Brechtel’s offense report from the ALJ’s

consideration for lack of a proper predicate for its admission.

Mr. Saintes’ Reply: No, it did not.

3 STATEMENT OF FACTS

The Department has accurately depicted the documentation and

testimony from the ALR proceeding, and the subsequent appeal to the

trial court from that proceeding. The Department’s statement of facts

provides an accurate backdrop for consideration of the issues being

presented to the Court. With few exceptions3, to be noted infra, Mr.

Saintes does not contest the Department’s factual statement.

Four evidentiary exhibits were introduced in the ALR proceeding

by the Department (TR-037) and admitted before the ALJ to varying

degrees. (TR-038 [“I am reviewing Exhibit No. 4.”]; -039). The exhibits at

issue in this proceeding are Exhibits Nos.1 and 4: Exhibit No. 1

comprised of Trooper Bretel’s DIC-23 (TR-044), and Exhibit No. 4

comprised of his offense report. (TR-048-062). Exhibits Nos. 1 and 4 were

not accompanied by a business records affidavit. (Id.). The DIC-23,

however, is self-authenticating.

Trooper Brechtel was present at the ALR proceeding. (TR-040).

The four evidentiary exhibits were not introduced through the trooper.

3 “[T]he Appellant’s brief need not include … a statement of facts, unless the

Mr. Saintes is dissatisfied with that portion of the appellant’s brief[.]” Tex. R. App. P. 38.2(a)(1)(B).

4 (TR-037). The trooper did not testify at the ALR proceeding. (TR-040).

The trooper did not adopt or incorporate his offense report into either the

DIC-23 (TR-044) or at the hearing. (TR-40).

SUMMARY OF RESPONSIVE ARGUMENT

The lower court was correct in finding and concluding there was an

insufficient evidentiary basis for admission of Exhibit No. 4.

Police offense reports are not unqualifiedly admissible in their

entirety under Texas Rule of Evidence and Rules governing ALR

proceedings. When, as here, there is no evidentiary predicate or

foundation before the ALJ for admission of the offense report, the trial

court was within its province in excluding the report from the ALJ’s

consideration in determining its affirmative findings.

5 RESPONSIVE ARGUMENT The trial court did not abuse its discretion and err in excluding

Trooper Brechtel’s offense report from the ALJ’s consideration when the

Department failed to lay the proper predicate or foundation for its

admission into the ALR proceeding under both the procedures adopted

by the SOAH and under the relevant Rules of Evidence.

Standard of Review.

“To reverse an agency decision, the reviewing court must conclude

(1) that the agency's decision was erroneous for one of the reasons

enumerated in subsections (A) through (F), and (2) that substantial

rights of the appellant have thereby been prejudiced.” See Texas Dep't of

Pub. Safety v. Cantu, 944 S.W.2d 493, 495 (Tex. App. – Houston [14th

Dist.] 1997).

This Court reviews an ALJ’s ruling on the admission or exclusion

of evidence under the abuse of discretion standard applied to trial courts.

Tex. Dep't of Pub. Safety v. Struve, 79 S.W.3d 796, 802-03 (Tex. App.—

Corpus Christi 2002, pet. denied) (citing City of Brownsville v. Alvarado,

897 S.W.2d 750, 753 (Tex. 1995); Tex. Dep't of Pub. Safety v. Silva, 988

S.W.2d 873, 876 (Tex. App. – San Antonio 1999, pet. denied); (citing Tex.

6 Dep't of Pub. Safety v. Mendoza, 956 S.W.2d 808, 810 (Tex. App. –

Houston [14th Dist.] 1997, no pet.)).

Evidentiary rulings are committed to the trial court's sound

discretion. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231,

234 (Tex. 2007). This Court will review a trial court decision to admit or

exclude evidence for an abuse of that discretion. In re J.P.B., 180 S.W.3d

570, 575 (Tex. 2005). A trial court abuses its discretion when it acts

without reference to any guiding rules and principles. Garcia v. Martinez,

988 S.W.2d 219, 222 (Tex. 1999).

This Court will uphold the trial court's evidentiary ruling if there

is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v.

Malone, 972 S.W.2d 35, 43 (Tex. 1998); Oyster Creek Fin. Corp. v.

Richwood Invs. II, Inc., 176 S.W.3d 307, 317 (Tex. App.-Houston [1st

Dist.] 2004, pet. denied).

“A person seeking to reverse a judgment based on evidentiary error

need not prove that but for the error a different judgment would

necessarily have been rendered, but only that the error probably resulted

in an improper judgment.” City of Brownsville v. Alvarado, 897 S.W.2d

at 753.

7 The Rules of Evidence and Administrative Proceedings.

The Texas Rules of Evidence “as applied in a nonjury civil case in a

district court of this state” apply to contested administrative license

suspension hearings with certain statutory exceptions. See Tex. Gov’t

Code Ann. § 2001.081; 1 Tex. Admin. Code § 159.211(b).

A. Texas Rule of Evidence 803.

Texas Rule of Evidence 803, applicable in ALR proceedings, states

that a “record or statement of a public office” is not excluded by the

hearsay rule if it sets out: (1) “the office’s activities”; (2) “a matter

observed while under a legal duty to report, but not including, in a

criminal case, a matter observed by law enforcement personal”; or (3) “in

a civil case or against the government in a criminal case, factual findings

from a legally authorized investigation” when the party opposing

admission “fails to demonstrate that the source of information or other

circumstances indicate a lack of trustworthiness.” Tex. R. Evid. 803(8).

While rule 803(8) excludes public records from the hearsay rule, it

does not exclude from the hearsay rule the following two categories of

public documents: (1) “matters [in criminal cases] observed by police

officers and other law enforcement personnel”; and (2) “factual findings 8 resulting from an investigation made pursuant to authority granted by

law [in criminal cases as against the defendant and others but not the

state].” Id. at R. 803(8)(B & C). In other words, these categories of public

records remain hearsay in criminal cases, but not in civil cases. See Id.

Additionally, Rule of Evidence 805 provides that a hearsay

statement included in another hearsay statement is not excluded if either

statement is otherwise admissible. See Clement v. Texas Dep’t of Pub.

Safety, 726 S.W.2d 579, 581 (Tex. App. – Fort Worth 1986, no writ). In

other words, hearsay within hearsay is not excluded by the rule against

hearsay if each part of the combined statement is independently

admissible Tex. R. Evid. 805.

Analysis.

Evidence heard by the agency is not per se admissible in the trial

court. Mary Lee Foundation v. Texas Employment Com'n, 817 S.W.2d

725, 727 (Tex. App. – Texarkana 1991, writ denied). Whether the

evidence is admissible depends upon its own merits under the general

rules of evidence. 817 S.W.2d at 727. The public records exception to the

hearsay rule does not mean that ex parte statements, hearsay,

conclusions, and opinions contained within such records are

9 automatically admissible. Mary Lee Foundation, 817 S.W.2d at 728,

citing Wright v. Lewis, 777 S.W.2d 520 (Tex.App. – Corpus Christi 1989,

writ denied).

Here Trooper Brechtel did not incorporate his offense report into

his DIC-23. The trooper did not identify nor adopt his offense report at

the hearing before the ALJ. The Department did not confirm or connect

the proffered exhibits as the written reporting of the trooper. (TR-037)

(“The Department offers the following public records as exhibits: Exhibit

1, the DIC-23; Exhibit 2, DIC-24; Exhibit 3, DIC-25; and Exhibit 4, the

Offense Report.”). There is nothing that connects the trooper to the

offense report or the report to the hearing.

The DIC-23 is self-authenticating. Dep’t of Pub. Safety v. Mitchell,

2003 Tex. App. LEXIS 3407, at *11 (Tex. App. —Fort Worth 2003, no

pet.) (mem. op.) (unpublished). The offense report, on the other hand is

not.

Further, Rule of Evidence 1005 provides that “the contents of an

official record or of a document authorized to be recorded or filed and

actually recorded or filed, including data compilations in any form, if

otherwise admissible, may be proved by copy, certified as correct in

10 accordance with Rule 902 ....” Tex R. Evid. 1005. Rule of Evidence 902(4)

provides that extrinsic evidence of authenticity is not required with

respect to “[a] copy of an official record or report or entry therein, or of a

document authorized by law to be recorded or filed and actually recorded

or filed in a public office, including data compilations in any form certified

as correct by the custodian or other person authorized to make the

certification, by certificate complying with paragraph (1), (2) or (3) of this

rule or complying with any statute or other rule prescribed pursuant to

statutory authority.” Tex. R. Evid. 902(4). The offense report comprising

Exhibit No. 4 was not accompanied by a business records affidavit.

In the absence of the above, the trooper’s offense report was

admissible only if it satisfied Rule 159.23’s requirement that it be sworn

or if the officer swears in court to its contents, which it did not.4 The

courts construe administrative rules, which have the same force as

statutes, in the same manner as statutes. See Lewis v. Jacksonville Bldg.

& Loan Ass'n, 540 S.W.2d 307, 310 (Tex. 1976). Unless the rule is

ambiguous, the reviewing court will follow the rule’s clear language. See

4 “An officer's sworn report of relevant information shall be admissible as a

public record”. 1 Tex. Admin. Code § 159.211(c)(2) (emphasis added); see also Tex. Transp. Code §§ 524.002, 724.003 (granting SOAH rulemaking authority over license suspension hearings). 11 Republicbank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.

1985).

For the offense report and any subsumed hearsay content to be

admissible, it must have fit into a hearsay exception. See Tex. R. Evid.

802. “Under Rule 803(8), certain written statements, which would

normally be excluded as hearsay, may be admitted into evidence if they

qualify as public records and reports, even though the declarant is

available to testify.” Rodriguez v. Pro Star Logistics, Inc., 2002 Tex. App.

LEXIS 5058 (Tex. App. — San Antonio 2002). If the proponent complies

with the rules of evidence, the business records themselves are

admissible.

This exception does not allow the admission of information in the

business records from outside sources who have no business duty to

report accurately. Those statements must independently qualify for

admission under their own hearsay exception. see also Rule 805

(“Hearsay within hearsay is not excluded by the rule against hearsay if

each part of the combined statements conforms with an exception to the

rule.”).

12 Here, the ticket to admission of the trooper’s offense report was the

DIC-23. The record reflects the Department failed to provide the ALJ

with an adequate foundation for admission of the offense report. Because

the predicate for admission of the report was not met in the ALR

proceeding, and because this is a legitimate basis for its ruling, the trial

court was within its discretion in withdrawing the exhibit ALJ’s

consideration in making it affirmative finding.

PRAYER

It is respectfully submitted that all things are regular, the trial

court’s findings and conclusions are correct and supported by the record,

and the lower court’s order should be affirmed.

Dated March 10, 2025.

13 Respectfully submitted,

LAW OFFICE OF DAVID A. BRESTON

/s/ David A. Breston David A. Breston Texas State Bar Number: 90001478 1820 West Bell Street Houston, Texas 77019 Telephone: (713) 224-4040

COUNSEL OF RECORD FOR MR. SAINTES BRYAN JASON SAINTE

14 CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of Mr.

Saintes’s Brief has been duly served upon counsel representing the

Department of Public Safety in this matter via hand-delivery, email, fax

and/or the electronic case filing system on March 10, 2025.

LAW OFFICE OF DAVID A. BRESTON

/s/ David A. Breston David A. Breston Texas State Bar Number: 90001478

COUNSEL OF RECORD FOR MR. SAINTES BRYAN JASON SAINTE

15 CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that Mr. Saintes’s Brief complies

with the typed volume limitations of TEX. R. APP. P. 9.4(i)(2)(B) in that it

contains, including the exempt portions under the Rule, no more

than 2,368 words in Century Schoolbook 14 for the body of the brief and

Century Schoolbook 12 for the footnotes based upon a word count using

the Microsoft Word software.

LAW OFFICE OF DAVID A. BRESTON

/s/ David A. Breston David A. Breston Texas State Bar Number: 90001478

COUNSEL OF RECORD FOR MR. SAINTES BRYAN JASON SAINTE

16 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Chris Bingham on behalf of David Breston Bar No. 90001478 houstoncontractparalegalservices@yahoo.com Envelope ID: 98291378 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: Brief Not Requesting Oral Argument Status as of 3/11/2025 7:05 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

D'na Collins 24087326 dna.collins@dps.texas.gov 3/10/2025 9:29:44 PM SENT

David Breston 90001478 david@davidbreston.com 3/10/2025 9:29:44 PM SENT

Chris Bingham houstoncontractparalegalservices@yahoo.com 3/10/2025 9:29:44 PM SENT

Elizabeth AnneDupuy elizabeth.dupuy@dps.texas.gov 3/10/2025 9:29:44 PM SENT

LaKisha SeldonMcKay lakisha.mckay@dps.texas.gov 3/10/2025 9:29:44 PM ERROR