Jerry Dale Morgan v. Texas Department of Public Safety ( 2007 )

NO. 07-05-0433-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JULY 3, 2007
______________________________
JERRY DALE MORGAN, APPELLANT
V.
TEXAS DEPARTMENT OF PUBLIC SAFETY, APPELLEE
_________________________________
FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;
NO. 05-07-20083; HONORABLE HAROLD PHELAN, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Jerry Dale Morgan appeals the district court’s judgment affirming the
suspension of his driver’s license by the Texas Department of Public Safety. We will affirm
the district court.
The events leading to the suspension were largely undisputed. Trooper Jose
Barrientes was notified of a one-vehicle accident in the parking lot of a liquor store in
Hockley County, Texas. The manager of the liquor store reported that a white Dodge
pickup struck a pole in the parking lot. The manager indicated he spoke to the driver, the
driver appeared to be intoxicated, and the driver left the scene. Approximately twenty
minutes later, a vehicle matching the description provided by the manager1 was located at
a residence in Levelland, Texas.
The truck was parked, unoccupied, and Trooper Barrientes saw damage to its front
that was consistent with striking a fixed object. Barrientes noted that the engine
compartment was warm. Morgan, who was inside the residence, affirmed the vehicle was
his.
While speaking with Morgan, Barrientes detected the odor of alcohol. Morgan’s
eyes were red and glassy and his speech was slurred. The trooper noted Morgan was
unsteady on his feet. Morgan said he had been home for about an hour, and denied
knowledge of any damage to the vehicle. He consented to inspecting the truck with the
trooper and staggered as he walked. Trooper Barrientes reported he then read Morgan
the Miranda warnings and asked him when he last drove the truck. Morgan responded he
had not driven the truck in a week. When asked when he last consumed alcohol, Morgan
stated that he was drinking in the house. When asked whether he had been to the liquor
store, he responded “not today.”
Morgan refused the trooper’s request that he submit to sobriety tests. After the
manager of the liquor store came to the residence and identified the truck as the vehicle
that struck the pole, and identified Morgan as its driver, Morgan was arrested. At the jail,
1
The vehicle that was located matched the description with the exception that its
Texas license plate bore the number 78M-XH1 rather than the number 78M-HX1 reported
by the liquor store manager.
2
Morgan refused to provide a breath sample.2 Because of his refusal, the Department
suspended his driver’s license. See Tex. Transp. Code Ann. § 724.035 (Vernon Supp.
2006) (permitting the suspension or denial of a person’s driver’s license if he refuses the
request of a peace officer to submit to the taking of a specimen).
Morgan requested a hearing pursuant to Transportation Code section 724.041. Tex.
Transp. Code Ann. §724.041(a), (d) (Vernon Supp. 2006). At the hearing, the Department
offered four exhibits, including a supplemental form DIC-23 that contained the trooper’s
offense report.3 The exhibits were admitted without objection.4 After the hearing, the State
Office of Administrative Hearings administrative law judge (ALJ) found in the Department’s
favor on the pertinent issues listed in section 724.042, and entered an order authorizing
the license suspension.5 Tex. Transp. Code Ann. §§ 724.042, 724.043 (Vernon Supp.
2
The record includes the Department’s form DIC-24, signed by Morgan,
documenting his refusal to give the breath specimen. See Tex. Transp. Code Ann. §
724.032 (Vernon Supp. 2006) (providing for a written “refusal report”).
3
The offense report contains the facts surrounding Morgan’s arrest that we have
recited, detailing the trooper’s actions and the events that led to his arrest of Morgan.
Morgan does not deny on appeal that the facts recited in the report gave the trooper
probable cause to believe Morgan was operating a motor vehicle in a public place while
intoxicated.
4
The hearing record reflects Morgan’s counsel’s statement of “no objection” when
the Department offered its exhibits.
5
The issues at the administrative hearing included whether: (1) reasonable
suspicion or probable cause existed to stop or arrest Morgan; (2) probable cause existed
to believe that he was operating a motor vehicle in a public place while intoxicated; (3) he
was placed under arrest by the officer and was requested to submit to the taking of a
specimen; and (4) he refused to submit to the taking of a specimen on request of the
officer. Tex. Transp. Code Ann. § 724.042 (Vernon Supp. 2006).
3
2006). Morgan’s appeal of the ALJ’s decision was heard in the district court. He now
appeals the district court’s judgment approving the suspension of his license.
Review of the ALJ’s decision by the trial court is based on the substantial evidence
rule. Tex. Transp. Code Ann. §§ 724.047, 524.041; Mireles v. Texas Dep’t of Public
Safety, 9 S.W.3d 128, 131 (Tex. 1999).
Morgan raises two issues in his brief on appeal. By his first issue, he contends his
arrest was unlawful because Trooper Barrientes’ testimony at the license suspension
hearing demonstrates he arrested Morgan without a warrant and that none of the
circumstances authorizing a warrantless arrest under Chapter 14 of the Code of Criminal
Procedure were present. Through his second issue Morgan posits that evidence of the
unlawful arrest and his subsequent refusal to provide a breath specimen was inadmissible
in the license suspension hearing, preventing the Department from meeting its burden
under section 724.042.
The Department responds initially that Morgan’s appellate contentions were not
preserved for review, and we agree. Via his second issue, Morgan urges the applicability
of the exclusionary rule incorporated in article 38.23 of the Code of Criminal Procedure.
Tex. Code Crim. Proc. Ann. art. 38.23. Citing that statutory provision and Mapp v. Ohio,
367 U.S. 643, 655, 81 S. Ct. 1684 (1961), he contends evidence of his refusal to provide
the breath specimen is inadmissible and cannot be used against him to support the
findings required under section 724.042. Morgan acknowledges that the license
suspension hearing is a civil matter. See Tex. Transp. Code Ann. § 724.048(a)(1) (Vernon
4
1999) (so stating). Nevertheless, he argues the hearing is “quasi-criminal” in nature, and
subject to the Code of Criminal Procedure. He cites no authority for this proposition, and
we need not address it in this case. Assuming, arguendo, that Morgan’s warrantless arrest
contravened the requirements of Chapter 14 of the Code of Criminal Procedure,6 and
assuming further that fact would have precluded admission at the license suspension
hearing of evidence of his arrest and subsequent refusal to provide the specimen, the
record of the hearing reflects no objection to admission of such evidence. As noted,
Morgan’s counsel affirmatively stated he had no objection to the Department’s exhibits.
Under our state’s criminal jurisprudence, Morgan therefore may not complain on appeal
about admission of the evidence. Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App.
1992); Reed v. State, 487 S.W.2d 78, 80 (Tex.Crim.App. 1972) (complaint of admission
of fruit of warrantless search not preserved). See also Texas Dep’t of Public Safety v.
Pruitt, 75 S.W.3d 634, 639 (Tex.App.–San Antonio 2002, no pet.) (addressing objection
to admission of similar DPS report); Tex. R. App. P. 33.1 (error preservation generally
requires timely request, objection or motion in trial court); Tex. R. Evid. 103(a)(1) (timely
objection to admission of evidence, or motion to strike, required).
Accordingly, we overrule Morgan’s second issue, and find it unnecessary to address
his first. The district court’s judgment is affirmed.
James T. Campbell
Justice
6
Neither the administrative law judge nor the district court expressly decided this
issue.
5