COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-103-CR
NAOMI GARCIA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In two points, Appellant Naomi Garcia appeals her sentence of two years’
confinement, contesting the revocation of her community supervision on a
Driving While Intoxicated (DWI) case. We affirm.
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… See Tex. R. App. P. 47.4.
II. Factual and Procedural History
In December 2003, Garcia pleaded guilty to burglary of a habitation, and
the trial court sentenced her to three years’ community supervision. In January
2005, Garcia violated the terms and conditions of her community supervision
by failing to report, and the trial court sentenced her to ten years’ confinement
and placed her in the alternative incarceration program—the Texas Department
of Corrections boot camp. In April 2005, the trial court suspended Garcia’s
sentence and placed her on five years’ community supervision. In September
2007, the State filed a motion to revoke Garcia’s community supervision,
alleging that Garcia had violated the terms and conditions of her community
supervision by driving while intoxicated. At the close of trial, the trial court
granted the State’s motion and sentenced Garcia to two years’ confinement.
This appeal followed.
III. Discussion
In her first point, Garcia argues that the evidence was factually
insufficient to support the trial court’s order revoking her community
supervision. In her second point, Garcia argues that the trial court abused its
discretion by revoking her community supervision on the ground that she
committed the offense of DWI.
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A. Standard of Review
We review an order revoking community supervision under an abuse of
discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.
1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983);
Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet.
ref’d). In a revocation proceeding, the State must prove by a preponderance
of the evidence that the defendant violated the terms and conditions of
community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.
1993); Cherry, 215 S.W.3d at 919. The trial court is the sole judge of the
credibility of the witnesses and the weight to be given their testimony, and we
review the evidence in the light most favorable to the trial court’s ruling.
Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex.
Crim. App. [Panel Op.] 1981); Cherry, 215 S.W.3d at 919. If the State fails
to meet its burden of proof, the trial court abuses its discretion in revoking the
community supervision. Cardona, 665 S.W.2d at 493–94.
B. Analysis
In her first point, Garcia acknowledges the prevailing standard in
revocation proceedings is abuse of discretion but nevertheless asks this court
to conduct a factual sufficiency analysis in the hope that the Texas Court of
Criminal Appeals will consider the issue and reverse the prevailing standard.
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Several courts of appeals, including this court, have held that a factual
sufficiency review is inapplicable to revocation proceedings. See Allbright v.
State, 13 S.W.3d 817, 818 (Tex. App.—Fort Worth 2000, pet. ref’d); Antwine
v. State, 268 S.W.3d 634, 637 (Tex. App.—Eastland 2008, pet. ref’d); Becker
v. State, 33 S.W .3d 64, 66 (Tex. App.—El Paso 2000, no pet.); Joseph v.
State, 3 S.W.3d 627, 642 (Tex. App.—Houston [14th Dist.] 1999, no pet.);
Liggett v. State, 998 S.W.2d 733, 735–36 (Tex. App.—Beaumont 1999, no
pet.); Johnson v. State, 943 S.W.2d 83, 85 (Tex. App.—Houston [1st Dist.]
1997, no pet.); Brumbalow v. State, 933 S.W.2d 298, 300 (Tex. App.—Waco
1996, pet. ref’d). Any other type of review would attenuate the trial judge’s
discretion. Allbright, 13 S.W.3d at 818. Therefore, we decline to revisit this
issue, and accordingly we overrule Garcia’s first point.
In her second point, Garcia argues that the trial court abused its discretion
by revoking her community supervision on the ground that she committed the
offense of DWI. Specifically, Garcia argues that the evidence was too weak to
support the trial court’s conclusion that she was intoxicated.
During the trial, Officer T.C. Dunn of the Fort Worth Police Department
testified to the following. On August 24, 2007, he observed Garcia’s vehicle,
which was heading northbound, drive through a barricade into southbound
lanes and come within ten feet of several police officers in the middle of the
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road. Upon approaching Garcia’s vehicle, he noticed that she had bloodshot
eyes and an “almost just lost” gaze. He detected the odor of alcohol and
observed Garcia place her hand on her car to steady herself as she exited the
vehicle. Officers at the scene administered a field sobriety test and concluded
that Garcia was intoxicated.
The trial court also heard two of Garcia’s friends testify that they had
been with Garcia the entire evening and that she was not intoxicated, nor did
she exhibit signs of intoxication. Furthermore, Garcia testified on her own
behalf that she had not had anything intoxicating to drink, nor did she smell of
alcohol.
Viewed in the light most favorable to the trial court’s ruling and deferring
to the trial court’s determination concerning credibility and the weight to be
given to testimony, and recalling that the State’s burden of proof is by a
preponderance of the evidence, we hold that the trial court did not abuse its
discretion by granting the State’s motion to revoke Garcia’s community
supervision. See Cherry, 215 S.W.3d at 920 (deferring to the trial court’s
determination on conflicting testimony regarding defendant’s identity).
Accordingly, we overrule Garcia’s second point.
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IV. Conclusion
Having overruled both of Garcia’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MCCOY, J.; CAYCE, C.J.; and MEIER, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 2, 2009
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