David Garcia v. State

No. 04-99-00346-CR

David GARCIA,

Appellant

v.

The STATE of Texas,

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 95-CR-2030

Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: November 8, 2000

AFFIRMED

David Garcia ("Garcia") was convicted of felony driving while intoxicated in September of 1995. In February of 1999, the State moved to revoke Garcia's probation, alleging that he had violated four conditions of his probation. The trial court found that Garcia had violated each of the conditions as alleged and revoked Garcia's probation. Garcia challenges the legal sufficiency of the evidence to support the trial court's findings that Garcia violated the conditions of his probation. We affirm the trial court's judgment.

Standard of Review

An order revoking probation must be supported by a preponderance of the evidence. See Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App.1974); Rodriguez v. State, 2 S.W.3d 744, 746 (Tex. App.--Houston [14th Dist.] 1999, no pet.). In applying this standard, the greater weight of the credible evidence must create a reasonable belief that the defendant violated a condition of his probation. See Scamardo, 517 S.W.2d at 298; Rodriguez, 2 S.W.3d at 746. When the sufficiency of the evidence is challenged, the evidence is viewed in a light most favorable to the trial court's findings. See Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Rodriguez, 2 S.W.3d at 746. The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Naquin v. State, 607 S.W.2d 583, 586 (Tex. Crim. App. [Panel Op.] 1980); Rodriguez, 2 S.W.3d at 746. Appellate review of an order revoking probation is limited to a determination of whether the trial court abused its discretion. See Flournoy v. State, 589 S.W.2d 705, 709 (Tex. Crim. App. [Panel Op.] 1979); Rodriguez, 2 S.W.3d at 746.

Proof by preponderance of the evidence on any one of the alleged violations of the conditions of probation is sufficient to support the order of revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); Rodriguez, 2 S.W.3d at 746. When several violations are found by the court, the order revoking probation will be affirmed if the proof of any allegation is sufficient. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Rodriguez, 2 S.W.3d at 746.

Discussion

In his first point of error, Garcia challenges the sufficiency of the evidence to support the trial court's finding that he violated the first condition of his probation by committing the offense of driving while intoxicated on February 17, 1999. Deputy John Valadez testified at the revocation hearing. Deputy Valadez stated that he had been assigned to the DWI Traffic Unit for two years and had specialized training in HGN. On February 17, 1999, Deputy Valadez observed a truck make a left turn onto the road on which Deputy Valadez was traveling. Deputy Valadez testified that the driver made a wide turn that carried the truck onto the shoulder of the road. The driver continued to drive halfway on the shoulder and halfway on the road and "kind of weaved or snaked down the road." As the driver approached a school zone, which required vehicles to reduce their speed during school hours, the driver braked to 35 miles an hour even though it was 10:30 at night, and the driver continued "the weaving/drifting thing." Deputy Valadez activated his lights and pulled the driver over. Garcia identified himself as the driver. Deputy Valadez asked Garcia to step to the rear of the vehicle. Deputy Valadez smelled the odor of intoxicants and noticed that Garcia staggered as he walked toward the rear of the vehicle. Garcia was swaying back and forth as he stood by Deputy Valadez. Deputy Valadez performed an HGN test and observed all six clues of HGN in Garcia's eyes. Deputy Valadez asked Garcia to perform the walk-and-turn test and observed that Garcia was unable to stand heel to toe without losing his balance and staggered when he attempted to walk. Deputy Valadez also asked Garcia to perform the one-leg-stand test. Although Deputy Valadez asked Garcia to wait until he told him to begin, Garcia began trying to perform the test before he was instructed to do so. In addition, Garcia continually lost his balance. Deputy Valadez arrested Garcia for driving while intoxicated. After Garcia was transported to jail, he refused to submit a breath test and refused to perform the sobriety tests while being videotaped. Deputy Valadez also testified that Garcia was confused or lost because the location to which he said he was traveling was not in the vicinity in which he was stopped. Deputy Valadez stated that in his opinion Garcia has lost the normal use of his mental and physical faculties to operate a motor vehicle. During cross-examination, Deputy Valadez stated that Garcia's clothes appeared orderly, Garcia was polite, and Garcia's speech was not slurred. However, Deputy Valadez did not agree that based on those facts Garcia was not intoxicated.

Garcia contends that the evidence was insufficient because Deputy Valadez never testified that he was certified to administer the HGN or field sobriety tests. However, Deputy Valadez did testify regarding his training, and Garcia did not challenge Deputy Valadez's qualifications as an expert at the hearing. Garcia also contends that the evidence is insufficient to prove that the offense he committed was a third driving while intoxicated offense. However, the judgment placing Garcia on probation in the cause before the court reflects that Garcia's original conviction was for a third offense; therefore, evidence was before the court that Garcia violated the conditions of his probations by committing a felony offense of driving while intoxicated, which is the only relevance in alleging a third offense.

The evidence was sufficient to support the trial court's finding that Garcia violated the first condition of his probation by committing a felony offense of driving while intoxicated. Because proof of one of the violations is sufficient to support the order of revocation, we do not reach Garcia's other points of error.

Conclusion

The trial court's judgment is affirmed.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH