Nos. 10-04-00214-CR, 10-04-00215-CR
Opinion delivered and filed August 24, 2005. DO NOT PUBLISH.
Appeal fromthe 163rd District Court, Orange County, Texas, Trial Court Nos. B-010065-R, B-010370-R. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
BILL VANCE, Justice.
In these two appeals of his probation revocation, Appellant Terry Carrington asserts in one issue that the evidence was insufficient to revoke his probation for felony driving while intoxicated. We will affirm.
Background
Carrington was charged with two separate felony DWI offenses (occurring on September 1, 2000 and October 3, 2000, respectively). On September 5, 2001, Carrington pled guilty to both offenses, and the trial court sentenced him to ten years in prison for each offense. The sentences were suspended and Carrington was placed on community supervision (probation) for eight years. On the evening of February 8, 2004, Carrington was arrested for DWI. The State moved to revoke his probation in each case. After a hearing, the trial court revoked his probation and sentenced Carrington to ten years in prison. Carrington appeals, asserting that the evidence was insufficient to revoke his probation. Standard of Review
Once granted, probation should not be arbitrarily withdrawn by the trial court; the trial court is not authorized to revoke probation absent a showing that the probationer has violated a condition imposed by the court. DeGay v. State, 741 S.W.2d 445, 449 (Tex.Crim.App. 1987). 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). The trial judge is the sole trier of the facts, the credibility of the witnesses, and the weight to be given their testimony. Ex parte Tarver, 725 S.W.2d 195, 198 (Tex.Crim.App. 1986); Diaz v. State, 516 S.W.2d 154, 156 (Tex.Crim.App. 1974). When 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, 493-94 (Tex.Crim.App. 1984). We review an order revoking probation by determining whether the court abused its discretion. Id. We have previously held that sufficiency points are not independent grounds of review in an appeal of a probation revocation order, but are incorporated into a determination of whether the trial court abused its discretion. Brumbalow v. State, 933 S.W.2d 298, 300 (Tex.App.-Waco 1996, pet. ref'd). When 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. Id.The Evidence
District Attorney Investigator Wade Robinson testified that on the afternoon of February 8, 2004, he was driving to the Orange County Airport on Highway 105, a two-way road. Carrington's truck was two cars in front of him. The car in front of Robinson tried to pass Carrington, and while doing so, Carrington veered into the lane of oncoming traffic, which caused the car to make a wide pass to get around Carrington. Robinson then began to try to pass Carrington, whom Robinson said was driving slowly, but Carrington ran off the highway to the right, came back on the highway, and completely crossed into the lane of oncoming traffic. Robinson said that he feared Carrington was going to have a head-on collision, so he stopped Carrington by activating his emergency lights. Robinson testified that Carrington stopped quickly and that he asked Carrington for his driver's license and insurance information. Robinson said that Carrington "was very slow" to answer his questions and had a hard time getting his license out of his wallet. Robinson asked Carrington why he was running off the road, and Carrington told him he had been working seven days straight. Robinson asked Carrington to step to the rear of his truck, and he noticed that Carrington was unsteady on his feet while they were talking. He said that Carrington had slurred speech and had to lean on his truck. Robinson asked Carrington if he had taken anything because he felt that Carrington was intoxicated, and Carrington said that he had taken a certain number of "Somas" and some other prescription medication. Because Robinson was in a hurry to catch a flight at the Orange County Airport, he initially decided not to arrest Carrington and instead called Carrington's wife and told her to come get him or he would be taken to jail. But before Carrington's wife arrived, Robinson had changed his mind. Robinson testified that Carrington revealed that he was on probation for DWI and that he could prove that he was not intoxicated by blowing in his car's interlock ignition device. Robinson determined at that point that Carrington was intoxicated by taking prescription drugs, that he did not have the normal use of his mental or physical faculties, and that he should be arrested for DWI or further investigated for DWI. State Trooper Robert Arnold was called to the scene, and when Arnold arrived, Robinson went on to the airport. Arnold testified that when he arrived at the scene of the stop, he spoke with Robinson about the reason for the stop and what Robinson had found. Arnold said that when he arrived, Carrington was leaning against his truck, and when he asked Carrington to come toward him, Carrington had to catch his balance as he walked toward Arnold. Arnold said that Carrington was unsteady on his feet. Arnold noticed Carrington "lift his shoulder," which he said was a sign of being intoxicated or impaired. Arnold also noticed that Carrington's eyes were "half shut" and that he had slurred speech. Arnold said that he did not smell alcohol on Carrington's breath and that Carrington said that he had not been drinking. Carrington told Arnold that he was on his way to work and that, right before being stopped by Robinson, he had just run off the road and realized that he was in no condition to be driving to work and that he was about to turn around when he was stopped. Arnold also said that Carrington told him that he felt like he could not make it to work safely. Arnold asked Carrington whether he had taken any drugs, and Carrington responded that he was on medication. Arnold then asked Carrington if he had the medication with him, and Carrington reached into a pocket to try to retrieve a pill bottle, but Arnold said that Carrington had such trouble that he had to get the bottle out for Carrington. Arnold said there were two different medications in the bottle, and that one was Soma. Carrington told Arnold that he was actually on three medications but that he only had two of them with him, and Carrington told him that he had taken four Soma pills and four "Vicodin" pills that day. A nurse later confirmed to Arnold that the two medications were Soma and Vicodin. Carrington told Arnold that he had taken the medications that day for injuries he had received in car and work accidents. At the scene, Arnold performed a horizontal gaze nystagmus test on Carrington to detect alcohol intoxication, and he said that Carrington did not exhibit any clues of alcohol intoxication. Because of the location of the stop (near a blind curve) and because there was no flat surface, Arnold did not conduct any other field-sobriety tests on Carrington. Arnold believed that Carrington had lost his normal mental and physical faculties, based on Carrington's leaning on his truck, having trouble standing, slurred speech, and half-closed eyes. Arnold spent about twenty minutes at the scene with Carrington, and it took another ten or fifteen minutes to take him to the Orange County Jail. At the jail, Arnold took Carrington to the DWI video room for further testing for intoxication and possibly to charge him with DWI. The videotape shows Carrington performing a variety of sobriety tests. On the videotape, Carrington stated that he had taken four pills of each medication. He testified that he meant that he had taken them over the day and the previous night. He explained that he had slept about three hours Saturday evening, had stayed up all of Saturday, and had started taking his medication on Saturday evening around 3:00 or 4:00 p.m. Carrington added that he had not worked that night; he had stayed up playing video games with his kids. He had been working nights seven days a week since early January, and this Saturday night was the first night he had taken off. On the walk-and-turn test, Arnold noted that Carrington used his arms to balance and that he took the wrong number of steps, which Arnold said were clues of intoxication. Arnold also said that Carrington walked with a stiff gait and appeared unsteady. Carrington satisfactorily performed the nose-touch test and was cooperative throughout the testing, according to Arnold. Arnold said that while he thought Carrington's speech was still slurred on the videotape, it was not as slurred as it had been at the roadside stop. Because Arnold thought that Carrington was intoxicated by prescription medication and not alcohol, he offered him a blood test, rather than a breath test, which Carrington had agreed to take. Arnold said that at the jail, Carrington was offered a blood test, but he refused to take it. Carrington testified that he refused because he thought it would be taken at the jail instead of at a hospital. He said that he did not agree to a blood test at the jail because he had had a previous bad experience with blood being drawn by jail personnel. He also claimed that he had agreed to a blood test at the roadside stop and thought that he would be taken to a hospital for it. Robinson denied that Carrington had agreed to a blood test at the stop scene. After watching the videotape, Arnold said that it was Lorcet, not Vicodin, that Carrington had said he had taken. Katherine Morgan, Carrington's probation officer, testified that Soma was a muscle relaxer and that Vicodin and Lorcet are opiate narcotic pain medications. Carrington testified in his defense. He said that in the five weeks before his arrest, he had been working seven days a week and ten- and twelve-hour night shifts, usually from 7:00 p.m. to 5:30 a.m. As a result, he said that his days and nights were backwards and that he would sleep as much as he could during the day, which he said was three to five hours at the most. Carrington testified that the day of his arrest was a Sunday and that he had not slept Saturday night (on which he had a day off from work) or on Sunday, except for a one-hour nap between approximately 4:00 and 5:00 p.m. on Sunday. Carrington had his two children with him that weekend, and he had spent the weekend visiting with them. Carrington explained that the three prescription medications that he was taking at the time were Soma, Lorcet, and Xanax. He said that he had been in a car wreck several years ago, that he had a pinched nerve, and that he had been on the medications since October 2003. He was unsure of how many pills he had taken on the day of the arrest, but he said that he took them every "four hours or so," as they were prescribed, and that he had taken three, four, or five of the pills that day. Carrington said that he did not abuse his medication and only took them as prescribed. Carrington said that on the day of his arrest, he had last taken one of each medication around 1:00 p.m. and that he had left his house for work around 6:15 p.m. When he was pulled over, he was about ten minutes away from his house. Carrington admitted that he had driven off the road, and he explained that he drove off the road because he was "very tired, sleepy, physically and mentally exhausted." He further said that to work so many hours on so little sleep, he would drink energy drinks, but he had not had any drinks that day. Carrington testified that he was cooperative with the officers because he was not intoxicated; he said that on previous DWI arrests he had not cooperated on the sobriety tests. Carrington admitted that he told the officers that he was too tired to be driving and that he had decided that he was going to return home and not drive to work. He later added that his plan was to return home and try to get a ride to work, despite his being so tired, because he would drink his energy and caffeine drinks to be able to do his job. Carrington denied being intoxicated; he said that he was only physically and mentally exhausted and that the medications had no role in his condition. He testified that he had worked "forever" while taking the medications and had never had a problem, and that the medications did not cause him to lose the normal use of his mental faculties. As for the problem identified by Arnold in the heel-toe walking test, Carrington said that he attributed it to his tiredness and to what he was wearing: steel-toed boots and two pairs of socks, a Nomex suit and multiple layers of clothing underneath to stay warm while working outside. Analysis and Conclusion
Viewing the evidence in the light most favorable to the trial court's findings, and deferring to the trial court's role as the sole trier of the facts, the credibility of the witnesses, and the weight to be given their testimony, we find that the trial court did not abuse its discretion in finding sufficient evidence of a violation of Carrington's conditions of community supervision. Cf. Davy v. State, 67 S.W.3d 382, 396 (Tex.App.-Waco 2001, no pet.) ("Davy does not dispute that he performed poorly on the sobriety tests both at the side of the road and at the jail. He does not dispute that he had ingested prescription medications on the date in question. The jury was free to disbelieve his testimony that his performance on the sobriety tests was due to his lack of sleep and his "bad leg" rather than the medications. Accordingly, we conclude that the evidence is legally and factually sufficient to support the verdict."). The trial court's revocation orders are affirmed.