Balkum v. Texas Dept. of Public Safety

• Decision Date: 10 August 2000
• Docket Number: No. 08-99-00127-CV,08-99-00127-CV
• Citation: 33 S.W.3d 263
• Parties: (Tex.App.-El Paso 2000) WILEY EUGENE BALKUM, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
• Court: Texas Court of Appeals

Page 263

33 S.W.3d 263 (Tex.App.-El Paso 2000)

WILEY EUGENE BALKUM, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.

No. 08-99-00127-CV

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS, EL PASO.

August 10, 2000

Appeal from County Court at Law of Midland County, Texas (TC# CC09235) Before Panel No. 1 Larsen, McClure, and Chew, JJ.

O P I N I O N

ANN CRAWFORD McCLURE, Justice.

Wiley Eugene Balkum appeals from an order of the County Court at Law of Midland County, affirming the administrative suspension of Balkum's driver's license for a period of ninety days. We affirm.

FACTUAL SUMMARY

During the evening hours of November 14, 1997, Officer Gary Kennedy of the Midland Police Department received a call from Detective McLane who stated that he had avoided an accident with a white Ford extended-cab truck only by taking evasive action. McLane expressed his belief that the driver might be intoxicated. At a nearby intersection, Kennedy met with McLane and Officer Rackow to discuss the situation. As they talked, the white truck turned left at the intersection and Kennedy activated his emergency lights and began following the truck. When the vehicle did not immediately stop, Kennedy activated his "quick" siren to alert the driver. The driver, subsequently identified as Balkum, eventually pulled over after being followed for approximately half a mile. Kennedy approached the truck and Balkum opened his door after the officer knocked on the glass. Kennedy immediately noticed an extremely strong odor of alcohol when Balkum opened the door. Because Balkum would not look up at Kennedy, he knelt down beside him and noticed that Balkum could not focus his eyes and that his eyes appeared quite glazed. Balkum stumbled when getting out of the vehicle and while walking to the back of the vehicle. He also had to use the vehicle for support to hold himself upright. Kennedy found a half-empty bottle of Canadian Mist whiskey in the floorboard of Balkum's truck. Due to Balkum's unsteadiness and apparent degree of intoxication, Kennedy did not require him to perform the field sobriety tests. Kennedy arrested Balkum for driving while intoxicated and transported him to the county jail where he provided him with the DWI statutory warning and requested that he submit a specimen of his breath to be analyzed by an intoxilyzer. When Balkum refused, Kennedy served him with a notice of suspension of his driver's license pursuant to the Texas Transportation Code and he filed a sworn report with the Texas Department of Public Safety (DPS) concerning Balkum's refusal to submit to the breath test. See Tex.Transp.Code Ann. §§ 724.031-.035 (Vernon 1999).

Based upon Balkum's timely request for a hearing before the State Office of Administrative Hearings (SOAH),¹ DPS notified Balkum that the hearing would be held on January 7, 1998, fifty-four days after Balkum received the notice of suspension from Kennedy. Prior to the hearing, Balkum requested that subpoenas be issued for Kennedy, McLane, Rackow, and Rick Yadon, a private citizen who was participating in a ride-along program with Kennedy that evening.² Following a telephone conference, the administrative law judge (ALJ) denied Balkum's request to subpoena any of the witnesses except Kennedy on the ground that good cause did not exist. With regard to Yadon, however, the ALJ expressly permitted Balkum to renew his request after he further investigated the relevance of the testimony. According to the ALJ, Balkum did not make another request for a subpoena of Yadon.

Balkum also filed a motion to dismiss the license suspension proceeding based upon the failure to conduct the administrative hearing within forty days of the issuance of the notice of suspension as required by the Transportation Code. The ALJ denied the motion. At the conclusion of the hearing, the ALJ found that DPS had established that reasonable suspicion existed to stop Balkum, that probable cause existed to believe that Balkum was operating a motor vehicle in a public place while intoxicated, that the officer had properly asked Balkum to submit a specimen of his breath for analysis, and that Balkum had refused. Accordingly, the ALJ entered an order authorizing DPS to suspend Balkum's license for ninety days. Balkum appealed this decision to the County Court at Law No. 2 of Midland County, complaining of the restriction on his ability to subpoena witnesses and the denial of his motion to dismiss. The County Court at Law affirmed the decision of the administrative law judge. Balkum raises the same two issues in his appeal to this Court.

REFUSAL TO ISSUE SUBPOENAS

In Point of Error No. One, Balkum contends that the ALJ abused its discretion by refusing to issue subpoenas for McLane, Rackow, and Yadon. He also maintains that the denial of the subpoenas violated his right to confrontation guaranteed by the Sixth Amendment to the United States Constitution. The general procedure for obtaining a subpoena in an administrative hearing is set forth in section 2001.089 of the Texas Government Code:

On its own motion or on the written request of a party to a contested case pending before it, a state agency shall issue a subpoena addressed to the sheriff or to a constable to require the attendance of a witness or the production of books, records, papers, or other objects that may be necessary and proper for the purposes of a proceeding if:

(1) good cause is shown; and

(2) an amount is deposited that will reasonably ensure payment of the amounts estimated to accrue under Section 2001.103.

Tex.Gov't Code Ann. § 2001.089 (Vernon 2000).

This case is also governed by the SOAH Rules of Practice and Procedure for Administrative License Revocation cases. The relevant portions of Rule 159.17 provide as follows:

(a) A request for the issuance of a subpoena to require attendance of witnesses or the production of documents shall be in writing and must be received by the Office at least five days prior to the scheduled hearing, with a copy sent to the department, and shall contain:

. . .

(7) A short statement indicating good cause why the expected testimony or evidence to be obtained through the witness and/or documents is relevant and necessary to the issues involved in the hearing;

. . .

(e) The decision to issue a subpoena shall be in the sound discretion of the Judge assigned to the case. The Judge shall refuse issuance of a subpoena if the testimony or evidence to be offered:

(1) is immaterial or irrelevant; or

(2) good cause has not been shown that the witness or documents pertain to a genuine issue in the contested case.

. . .

(g) If a subpoena is requested and the Judge requires additional evidence or arguments to support its issuance, the Judge may arrange a telephone conference hearing in order to resolve the matter prior to the hearing. If a prehearing decision is not possible, the Judge may defer the decision on the request until the hearing is held and then may take the testimony and receive evidence to determine if the request should be granted. The Judge may entertain an offer from the requestor or his attorney as to the nature of the witness' testimony. . . .

1 Tex.Admin.Code 159.17 (West 1998).

DPS concedes that Balkum timely made his requests, but urges that the ALJ did not abuse his discretion in finding that Balkum had failed to establish good cause for issuance of the subpoenas. In alleging that good cause existed to obtain the testimony of McLane, Rackow, and Yadon, Balkum made the same statement in each application for the issuance of the subpoena:

Defendant believes examination of the witness is essential to challenge the existence of probable cause as set forth in the Department's Notice of Hearing as this officer is alleged to have been a witness concerning the captioned investigation and arrest of the Defendant.

The record before us does not contain a transcription of the pre-hearing telephone conference between counsel for the parties and the ALJ. Instead, we only have the discussion which took place at the beginning of the administrative hearing when Balkum raised the issue regarding the denied subpoenas. Balkum's counsel stated that he determined from reading the reports contained within the prosecutor's file in the DWI case that the three witnesses would have relevant testimony pertaining to the probable cause issue because they had observed Balkum's condition at the time of arrest. However, he did not explain the substance of their testimony in more detail. Counsel told the ALJ that Balkum had spoken with Yadon but counsel did not know this in time to meet a deadline for resubmission of his subpoena request. Disagreeing that he had set a "hard and fast" deadline to resubmit his subpoena request, the ALJ asked whether counsel had specific information that Yadon's testimony would be of assistance to him. When counsel replied that he did not know because he did not personally speak with Yadon, the ALJ then proceeded with the hearing. The ALJ also told Balkum that, if necessary, he would continue the case after hearing Kennedy's testimony and subpoena additional witnesses. At the conclusion of the hearing, Balkum did not ask the ALJ to continue the hearing nor did he ask to subpoena additional witnesses.

We first find that Balkum waived any complaint pertaining to the Sixth Amendment's right of confrontation because he did not raise it in the administrative hearing. See Tex.R.App.P. 33.1(a)(1); Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990)(defendant waived alleged violation of rights to confrontation and due process by failing to object at trial); Serrano v. State, 936 S.W.2d 387, 390 (Tex.App.--Houston [14th Dist.] 1996 pet. ref'd)(defendant waived review of issue of whether admission of blood test in prosecution for driving while intoxicated deprived him of his constitutional right of confrontation, where defendant failed to object on that ground). Even constitutional errors may be...