James Martin Wells v. State

James Martin Wells v. State

IN THE

TENTH COURT OF APPEALS

No. 10-99-005-CR

     JAMES MARTIN WELLS,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 220th District Court

Hamilton County, Texas

Trial Court # 6645

                                                                                                                                                                                                                          

O P I N I O N

                                                                                                                

      On July 23, 1993, James Martin Wells pled guilty to felony driving while intoxicated. See Tex. Pen. Code Ann. § 49.04 (Vernon 1994 & Supp. 1999). He was sentenced to five years’ imprisonment, probated. Shortly thereafter, Wells was convicted of another DWI in Dallas County. The court modified the conditions of probation to include treatment for alcohol abuse. On September 29, 1998, the court revoked Wells’ community supervision probation and sentenced him to five years in prison. He appeals, asserting five issues for review. We will affirm the judgment.

DOES THE EVIDENCE SUPPORT REVOCATION?

      Wells asserts that the evidence is insufficient to support the revocation of his probation. We have previously held that sufficiency points are not independent grounds of error, but are incorporated into the determination of whether the court abused its discretion. Brumbalow v. State, 933 S.W.2d 298, 300-01 (Tex. App.—Waco 1996, pet. ref’d); Ashcraft v. State, 918 S.W.2d 648, 655 (Tex. App.—Waco 1996, pet. ref'd); Thomas v. Thomas, 895 S.W.2d 895, 896 (Tex. App.—Waco 1995, writ denied). The State's burden of proof in a revocation proceeding is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). Where the State has failed to meet its burden of proof, the trial court abuses its discretion in issuing an order to revoke probation. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).

      It is well established that, where the sufficiency of the evidence to support the trial court's order is challenged, we review the evidence in the light most favorable to the trial court's findings. Freeman v. State, 917 S.W.2d 512, 514 (Tex. App.—Fort Worth 1996, no pet.).    The State filed a motion to revoke probation on July 10, 1998. A hearing was held on three allegations: 1) DWI committed in 1993; 2) public intoxication committed in 1997; and 3) DWI committed in 1998. In closing arguments, the State urged that Wells had committed the two DWI offenses, but did not urge that he was guilty of public intoxication. The court found these two allegations true. Thus, we will not consider the public intoxication allegation.

The 1998 DWI Offense

      Viewed in the light most favorable to the trial court’s finding, the record shows that on April 4, 1998, Officer Doug McClammy was patrolling on Highway 281 when Wells drove up behind him. Because McClammy was driving slower than the posted speed limit, he pulled over to the shoulder to allow Wells to pass. Although he slowed to approximately twenty miles per hour, Wells would not pass him. Eventually, Wells did pass McClammy and then drove through a red light without stopping. McClammy activated his overhead lights in an attempt to stop Wells for running the red light, but Wells refused to stop. Wells drove approximately forty-five miles per hour in a thirty mile-per-hour zone until he pulled into a driveway. McClammy testified that he pulled into the driveway behind Wells and could not see anyone in the car. Not believing that Wells could have exited the car without being seen, McClammy approached Wells’ car and saw him lying across the front seat. McClammy then took out his gun and ordered Wells to get out of the car. McClammy ordered Wells to get out of the car three times before Wells acknowledged his request. McClammy then told Wells that he was being detained for running a red light and asked him to have a seat in the passenger side of the patrol car.

      McClammy did a driver’s license check and discovered that Wells has a history of driving while intoxicated. McClammy stated that he could smell “an intoxicating beverage” on Wells’ breath. McClammy told Wells that he wanted to back the patrol car out of the driveway and onto the road so that Wells could perform a field sobriety test on a flat surface. Wells got out of the car and headed for the house. McClammy went after him, grabbed him, and called for backup. While on the porch, McClammy told Wells that he was under arrest, and Wells stated that he was not going to jail. While they were struggling, Wells opened the door to the house, and they both went in, falling over a couch. They continued to fight until other officers arrived. No sobriety tests were ever performed. The officers decided to treat Wells’ behavior as a refusal to perform the sobriety tests. McClammy testified that Wells admitted to drinking “a few beers.” He believed that Wells was intoxicated.

      Officer Jim Clifton testified that he responded to McClammy’s call for backup. He testified that “Mr. Wells was intoxicated, extremely intoxicated, [and had] a strong smell of alcohol on his person and his breath smelled like alcoholic beverage.” Clifton observed that Wells had red, watery eyes and that his speech was slurred. Clifton further testified that Wells “went berserk” at the jail, beating on the windows and breaking things. He believed that Wells was intoxicated.

      Wells does not dispute that he drove a motor vehicle on a public highway. The opinion testimony of an officer, standing alone, is legally sufficient to prove intoxication. Fierro v. State, 969 S.W.2d 51, 59 (Tex. App.—Austin 1998, no pet.). Proof of a single violation is sufficient to support revocation. See Stevens v. State, 900 S.W.2d 348, 350 (Tex. App.—Texarkana 1995, pet. ref'd); Rains v. State, 678 S.W.2d 308, 309-10 (Tex. App.—Fort Worth 1984, pet. ref’d). Based on the record, the court did not abuse its discretion in finding sufficient evidence to revoke Wells’ probation.

The 1993 DWI Offense

      Wells also complains that the court erred in considering the 1993 DWI conviction in revoking his probation. We have found that the court had sufficient evidence of the 1998 DWI, and one violation of probation is sufficient to support revocation. See id. We overrule issues one and two.

LEGALITY OF THE ARREST

      In his third, fourth, and fifth issues, Wells asserts that the arrest for the 1998 DWI was illegal and that all evidence of that violation should have been disregarded for purposes of revocation. He specifically asserts that the arrest was illegal because McClammy “forced his way into his home without a warrant and without permission on a mere Class C misdemeanor charge.” Wells made no objection to the admission of this evidence and, thus, did not give the trial court an opportunity to rule on this complaint. Therefore, these issues are not preserved for our review. See Tex. R. App. P. 33.1(a). Issues three, four, and five are overruled.

      Having overruled all issues presented, we affirm the judgment.

 

                                                                       BILL VANCE

                                                                       Justice

Before Chief Justice Davis,

          Justice Vance, and

          Justice Gray

Affirmed

Opinion delivered and filed September 22, 1999

Do not publish

Normal style='text-align:justify;line-height:200%'>   As to Delgado’s work record and length of residency, I see no evidence in the record.

        As to Delgado’s family ties, the evidence was that either Delgado’s mother and sister were not at the telephone numbers that Delgado had given for them or that they were not able to contact Delgado.  The record does not show that Delgado’s sister resided in the trial court’s jurisdiction.

        As to Delgado’s prior criminal record, his application for community supervision disclosed three convictions: two for assault and one for driving while intoxicated.  See Tex. Penal Code Ann. § 22.01(a) (Vernon Supp. 2007), 49.04(a) (Vernon 2003).  The record does not disclose whether those convictions were for felony or misdemeanor offenses, but, in either case, they weigh against Delgado.

        As to Delgado’s conformity with previous conditions of release, it was unfavorable.  Delgado appeared for his plea hearing.  But Delgado repeatedly failed to appear for the presentence investigation interview and psychological evaluations that constituted part of the presentence investigation ordered by the trial court.  Delgado also failed to appear timely for his sentencing, so that the trial court revoked Delgado’s bond and ordered it forfeited.  Delgado, in custody, appeared for his reset sentencing. 

        As to any other outstanding bonds, I see no evidence in the record.

        I consider the fact that we have overturned Delgado’s conviction, but here that consideration does not have the import that it usually does.  We held that the trial court erred in not allowing Delgado to withdraw his plea of guilty after the trial court decided not to accept Delgado’s plea-bargain agreement.  That error does not, for example, hold evidence inadmissible, or otherwise affect the State’s ability to continue to prosecute Delgado for the offenses charged.  Nor do I believe it likely that our decision in Delgado’s appeal will be overturned.  Cf. Delgado, 2008 Tex. App. LEXIS 2827.

        The majority considers only the pretrial bond set by the trial court.  But the trial court made that determination in November, 2006, before the trial court received evidence of Delgado’s offense, before Delgado failed to appear as ordered, before Delgado failed to participate in the court-ordered presentence investigation, before the trial court received evidence that Delgado did not reside at the address he gave the court and could not be contacted at the telephone number he gave the court, before the trial court received evidence that the contacts Delgado gave could not contact him, and before the trial court found Delgado guilty and sentenced him to ten years’ imprisonment.  While the majority’s approach is easier—it simply relies on what was done before, notwithstanding that even that bond was subsequently revoked—it does not rely on even the currently available evidence to set Delgado’s reasonable bail, in accordance with the constitutions and statutes, sufficient to give reasonable assurance that he will appear for further proceedings.  Our alternative, perhaps, is to deny the motion for bail without prejudice to the filing of another motion that could include additional relevant evidence.  Failing that, and failing our setting the motion for live hearing before us, and failing our remanding to the trial court for hearing, our best course is to request the briefing on affidavits and evidence as stated above.

        The majority sets bail without regard to constitution, statute, or controlling case law; and, to the extent that evidence of the factors stated in the constitution, statutes, and cases is in the record, that evidence weighs against setting a low bail--bail no higher than that set in the trial court, which was subsequently revoked for the failure to comply with the conditions of bond.[3]  Accordingly, I dissent.

TOM GRAY

Chief Justice

Dissent issued and filed June 11, 2008

Publish

[CR25]

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          [1] The State agreed to waive one count in the plea-bargain agreement.  Delgado pleaded guilty to the remaining count.  The trial court rejected the plea agreement but refused to allow Delgado to withdraw his plea.  It was this refusal that resulted in the reversal.

          [2] We have requested a supplemental record containing the evidence against Delgado admitted at his plea of guilty, but we have not received the evidence before the majority issues its order.  That evidence could only further weigh against Delgado.

          [3] I do not herein address the reasonable terms and conditions that should be imposed on Delgado’s bond, such as no contact with the victim or her family members, avoiding the use of illegal drugs and consumption of alcoholic beverages, and abiding by the laws of the United States and Texas.