Majdee Majed Nassar D/B/A in and Out v. Texas Alcoholic Beverage Commission

NUMBER 13-14-00187-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MAJDEE MAJED NASSAR
D/B/A IN AND OUT, Appellant,
v.
TEXAS ALCOHOLIC
BEVERAGE COMMISSION, Appellee.
On appeal from the 172nd District Court
of Jefferson County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Rodriguez
This case is an appeal of an administrative decision to cancel a wine-only package
store permit and an off-premise retailer’s license for a business in Port Arthur, Texas.1
By one issue, appellant Majdee Majed Nassar d/b/a In and Out (Nassar) contends that
the trial court’s determination that the permit and license for his business be cancelled
was not supported by substantial evidence. We affirm.
I. BACKGROUND
Nassar held a package store permit and retailer’s license for the business known
as the In and Out. On November 30, 2011, Nassar’s brother, who was employed as a
clerk at the In and Out, sold a Port Arthur Police Department informant a substance
believed to be synthetic marijuana. 2 Shortly after the sale, Nassar’s brother consented
to a search of the premises by Port Arthur Police Department officers. During the
search, the officers found 429 bags of a substance labeled “Space Cadet” tobacco above
the ceiling tiles in Nassar’s business office. The Jefferson County Crime Laboratory later
identified the substance as MPPP, a penalty group 2 controlled narcotic.3
Following an administrative hearing, the Administrative Law Judge (ALJ) made
and filed a proposal for decision containing findings of fact and conclusions of law. The
ALJ recommended cancellation of Nassar’s permit and license. Appellee, the Texas
Alcoholic Beverage Commission (TABC), adopted the ALJ’s findings and conclusions.
1 This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw
through 2013 3d C.S.).
2 At the substantial evidence hearing before the district court, Nassar’s counsel referred to the
substance as “Kush.”
3 It is the Administrative Law Judge’s admission of the report from the Jefferson County Crime
Laboratory that forms the basis of this appeal.
2
Following the TABC’s cancellation of Nassar’s permit and license, Nassar appealed to
the Jefferson County District Court. The district court affirmed the TABC’s administrative
decision, and Nassar appealed to this Court.
II. STANDARD OF REVIEW AND APPLICABLE LAW
Administrative decisions are reviewed de novo under the substantial evidence test.
TEX. ALCO. BEV. CODE A N N . § 11.67(b) (West, Westlaw through 2013 3d C.S.); Tex.
Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam) (noting
that an ALJ's findings are entitled to deference but that “whether there is substantial
evidence to support an administrative decision is a question of law,” and as such, neither
a trial court nor an ALJ's determination of this issue is entitled to deference on appeal);
see Tex. Alco. Bev. Comm’n v. Sanchez, 96 S.W.3d 483, 489 (Tex. App.—Austin 2002,
no pet.). The appropriate test is whether the evidence as a whole is such that
reasonable minds could have reached the same conclusion that the ALJ reached to
support his decision. Tex. Alco. Bev. Comm'n v. Sierra, 784 S.W.2d 359, 360 (Tex.
1990) (per curiam). Substantial evidence need only be more than a scintilla. Tex.
Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984).
The Texas Alcoholic Beverage Code prohibits possession of a narcotic on
licensed premises. TEX. ALCO. BEV. CODE ANN. § 104.01(9) (West, Westlaw through
2013 3d C.S.). TABC enforcement regulations define “narcotic” as any substance
defined in section 481.002(5), (6), (7), or (26)4 of the health and safety code (the Texas
4 These subdivisions address, respectively, “controlled substance,” “controlled substance
analogue,” “counterfeit substance” and “marihuana.” TEX. HEALTH & SAFETY CODE ANN. § 481.002(5), (6),
(7), (26) (West, Westlaw through 2013 3d C.S.).
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Controlled Substances Act). 16 TEX. ADMIN. CODE § 35.41 (West 2014) (Tex. Alco.
Bev. Comm’n Enforcement Terms Defined). TABC is authorized to suspend or
cancel licenses for any violation of the alcoholic beverage code, including any narcotics
violations on the licensed business premises. TEX. ALCO. BEV. CODE § 11.61(b)(2)
(West, Westlaw through 2013 3d C.S.). A violation sufficient to trigger a license
cancellation is, by statute, sufficient to trigger cancellation of a wine-only package store
permit for the same business premises. Id. § 24.06 (West, Westlaw through 2013 3d
C.S.). Nassar does not dispute the TABC’s authority to cancel his wine-only package
store permit and his beer retailer’s off-premise license. Instead, he attacks the
sufficiency of the evidence to support the decision to cancel his permit and license.
We review an ALJ’s decision regarding the admissibility of evidence under an
abuse of discretion standard. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638
(Tex. 2009); Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 528 (Tex. 2000) (op. on
reh’g). A trial court abuses its discretion only when its rulings are made without regard
to guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 389 (Tex. 2004). An
appellate court reviews an administrative agency’s rulings regarding the admissibility
of evidence under the same abuse of discretion standard that it applies to trial courts.
Sanchez v. Tex. State Bd. of Med. Exam’rs, 229 S.W.3d 498, 508 (Tex. App.—Austin
2007, no pet.).
Texas Rule of Evidence 803 provides, in relevant part, the following:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
....
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(6) Records of Regularly Conducted Activity. A memorandum, report,
record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum,
report, record, or data compilation, all as shown by the testimony of
the custodian or other qualified witness, or by affidavit that complies
with Rule 902(10), unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness.
“Business” as used in this paragraph includes any and every kind of
regular organized activity whether conducted for profit or not.
....
(8) Public Records and Reports. Records, reports, statements, or data
compilations, in any form, of public offices or agencies setting forth:
(A) the activities of the office or agency;
(B) matters observed pursuant to duty imposed by law as to which
matters there was a duty to report, excluding in criminal cases
matters observed by police officers and other law enforcement
personnel; or
(C) in civil cases as to any party and in criminal cases as against the
state, 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. EVID. 803(6) & (8). Rule 803(8) creates a presumption of admissibility and places
the burden of demonstrating untrustworthiness on the party opposing admission.
Beavers v. Northrop Worldwide Aircraft Servs., Inc., 821 S.W.2d 669, 675 (Tex. App.—
Amarillo 1991, writ denied).
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III. DISCUSSION
By his single issue on appeal, Nassar contends that there is no evidence that the
substance obtained by law enforcement at his business was illegal or that it was a
controlled substance in violation of the health and safety code and the alcoholic beverage
code. He asserts that the ALJ improperly admitted the lab report from the Jefferson
County Regional Crime Laboratory. Nassar claims that without this evidence— the only
evidence admitted to establish the identity of the substance found by the officers—there
is no evidence that the substance at issue was a penalty group 2 controlled substance,
and the petition for enforcement against him should have been denied.
A. Lab Report Properly Admitted
1. Authentication if Admitted Under Texas Rule of Evidence 803(6)
Nassar first contends that the ALJ erred if it admitted the lab report under Texas
Rule of Evidence 803(6) as a business record because the report was not
authenticated.5 See TEX. R. EVID. 803(6). The TABC asserts that the report was not
offered under rule 803(6), but was offered and admitted as a public record under rule of
evidence 803(8) as a public record, which has no separate authentication
requirement for the document’s admission. See id. at R. 803(8). Nonetheless,
the document was supported by an affidavit from the chemist, also referred to as a
5 Nassar also argues that nothing introduced by the TABC was filed with the Hearing Office
fourteen days prior to the hearing in violation of Texas Rule of Evidence 902(10). See TEX. R. EVID.
902(10). Without more, specifically without record citations to facts regarding the filing of the report and
Nassar’s specific 902(10) objection and without citations to authority, we conclude that this argument is
inadequately briefed. See TEX. R. APP. P. 38.1(i).
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forensic scientist, the lab technician, or the analyst, who performed the analysis.6 The
affidavit arguably complied with the provisions of rule of evidence 902(10). See id. at
R. 902(10) (setting out the form of the affidavit to prove up business records). And the
ALJ admitted the affidavit with the lab report. Without deciding whether the admission
was proper under the business record exception, we conclude that the lab report was
authenticated. So this argument fails.
2. Admission Under Texas Rule of Evidence 803(8)
Nassar next contends that if the ALJ admitted the lab report as a public record, it
did so in error because a law enforcement agency created the report. Nassar posits
that reports by law enforcers are less reliable than reports by other public officials
because of law enforcers’ adversarial relation to a defendant against whom the records
are sought to be used. Yet neither the language of the rule nor case law interpreting it
supports Nassar’s position.
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 resulting from an investigation made pursuant to
6 The affidavit, titled “Certificate of Analysis” and officially certified by a notary under her seal,
described the authorization of the Jefferson County Regional Crime Laboratory to conduct the analysis,
the chemist’s educational background, her training and experience, the custodial chain of the evidence,
and the tests she performed on the evidence, the results of which she stated were indicated on the official
lab report. See TEX. R. EVID. 902(10) (setting out the form of the affidavit to prove up business records);
see also TEX. GOV’T CODE ANN. § 312.011(1) (West, Westlaw through 2013 3d C.S.) (“‘Affidavit’ means a
statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to
administer oaths, and officially certified to by the officer under his seal of office.”). The chemist signed and
dated the affidavit. And the ALJ admitted the affidavit and lab report as TABC’s Exhibit 6.
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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. And it is well-
established that administrative proceedings are civil in nature. Tex. Dep’t of Pub. Safety
v. Caruana, 363 S.W.3d 558, 564 (Tex. 2012). In Caruana, the Texas Supreme Court
clearly set out that
[r]ule 803(8) excludes investigative reports when offered against the
defendant in a criminal case, not because law enforcement officers are
disinclined to be truthful, but because a criminal case pits law enforcement
and defendants as adversaries, and conviction should not be based on an
officer's testimony offered in absentia. ALR proceedings are civil, not
criminal. Law enforcement investigation reports are commonly admitted in
civil cases—car wrecks, for example.
Id. (holding that unsworn police reports are admissible in ALR hearings under rule
803(8)); see Tex. Dep’t of Pub. Safety v. Struve, 79 S.W.3d 796, 803–04 (Tex. App.—
Corpus Christi 2002, pet. denied) (concluding that a peace officer's report is admissible
as an exception to hearsay in an ALR hearing).
The decision of the ALJ, therefore, was consistent with established application of
rule 803(8). Nassar did not meet his burden of showing that the public record bore an
indicia of untrustworthiness. See Beavers, 821 S.W.2d at 675. Instead, rule 803(8)
expressly allowed for the admission of the public agency’s investigative factual findings
in this civil case as to any party. See TEX. R. EVID. 803(8)(C) (providing that “in civil
cases as to any party . . . , factual findings resulting from an investigation made
pursuant to authority granted by law”). We are not persuaded by this argument.
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3. No Right to Confront Chemist Who Prepared Admitted Lab Report
Finally, Nassar contends that the chemist’s absence from the administrative
hearing deprived him of the right of confrontation.7 However, by its express terms, the
Sixth Amendment right to confrontation applies to criminal actions, not civil actions. U.S.
CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him”) (emphasis added); see
TEX. CONST. art. I, § 10 (“In all criminal prosecutions the accused . . . shall be confronted
by the witnesses against him. . . .”) (emphasis added). Application of the Sixth
Amendment invariably arises in the context of evidentiary rulings in criminal cases.
See, e.g., Melendez-Diaz v. Mass., 557 U.S. 305, 309–11 (2009); Crawford v. Wash.,
541 U.S. 36, 50–51 (2004). Because the license revocation proceeding Nassar
challenges is civil rather than criminal in nature, see Caruana, 363 S.W.3d at 564,
Nassar enjoyed no Sixth Amendment right to confront witnesses in this administrative
proceeding, and this argument is meritless.
4. Admission of the Lab Report Was Not an Abuse of Discretion
Based on the above, we conclude that the ALJ did not abuse its discretion when it
admitted the lab report as a public record. See Camacho, 298 S.W.3d a t 638; Allen,
7 Nassar also generally sets out that “[t]he Lab Technician was both properly and timely
subpoenaed by the [TABC]. She refused to come to the Hearing. The Lab Report along with the Affidavit
were introduced and accepted without a Supporting Witness to introduce it with.” As record support for
this statement, Nassar refers us to an argument made by his counsel to the district court. Nassar provides
no additional citations to the record, and we find none. To the extent this argument could be construed as
a due-process complaint that Nassar was denied the right to confront and the right to cross-examination an
adverse witness, we conclude that it is inadequately briefed. See TEX. R. APP. P. 38.1(i).
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15 S.W.3d at 528; Sanchez, 229 S.W.3d at 508. It made its rulings with regard to guiding
rules or principles and properly admitted the lab report. See Cire, 134 S.W.3d at 389.
B. Substantial Evidence Supports Cancellation
Having concluded the ALJ properly admitted the lab report, we further conclude
that, based on our de novo review, see TEX. ALCO. BEV. CODE A N N . § 11.67(b); Alford,
209 S.W.3d a t 103, the report provided substantial evidence—more than a scintilla—to
support the TABC’s decision to cancel Nassar’s wine-only package store permit and off-
premise beer retailer’s license for the In and Out in Port Arthur, Texas, and the district
court’s order affirming the TABC’s decision. See Tex. Health Facilities Comm’n, 665
S.W.2d at 452. Reasonable minds could have reached the same conclusion. See
Sierra, 784 S.W.2d at 360. We overrule Nassar’s sole issue on appeal.
IV. CONCLUSION
We affirm the trial court’s order affirming the Texas Alcoholic Beverage
Commission’s administrative order.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the 20th
day of November, 2014.
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