Summary
abating case and directing trial court to sign corrected judgment of conviction that contained all of the statutorily mandated information
Summary of this case from Shumate v. StateOpinion
No. 05-16-00644-CR
06-14-2017
JOHNNIE RAY GREENWOOD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F12-60579-V
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Brown
Opinion by Justice Myers
Appellant Johnnie Ray Greenwood appeals his conviction following the revocation of his community supervision. In one issue, he argues the evidence is insufficient to show he was intoxicated in violation of the conditions of his community supervision. We affirm the trial court's judgment.
BACKGROUND AND PROCEDURAL HISTORY
Appellant was indicted for burglary of a building enhanced by two prior state jail felony convictions. He pleaded guilty to the charged offense and pleaded true to the enhancement paragraphs. In accordance with the plea agreement, the trial court found appellant guilty, found the enhancement paragraphs true, and sentenced appellant to ten years' imprisonment. The court suspended imposition of sentence and placed appellant on ten years' community supervision. The State subsequently filed a motion to revoke in which it alleged appellant violated ten conditions of his supervision. The motion alleged appellant's commission of two new offenses (credit card abuse and driving while intoxicated (DWI)); his failure to pay various fees and fines; his failure to complete his community service hours; and his failure to participate in psychological/psychiatric treatment as directed. At the revocation hearing, appellant pleaded "not true" to each of the ten alleged violations. The State called three witnesses: Leticia Davis, the complainant in the credit card abuse case; Dallas Police Officer Ilse Casas, the officer who arrested appellant on the DWI charge; and Carolyn Sanders, the probation officer assigned to the 292nd Judicial District Court.
Officer Casas testified that at approximately 2:00 a.m. on January 24, 2016, she was driving in her patrol car on Harry Hines Boulevard when she observed a red truck in front of her swerving left to right and failing to maintain a single lane. Casas turned on her emergency lights in an attempt to initiate a traffic stop and the truck sped away in what the officer believed was an apparent attempt to evade the police. The Dallas Police Department has a "no-chase" policy, so Casas turned off her lights and continued in the direction the truck had travelled. Casas believed the driver might be intoxicated and that he could possibly cause an accident or injure someone. Within a minute of losing sight of the red truck, two witnesses flagged down Officer Casas and told her they saw a truck drive onto the sidewalk, hit a fence, and hit two parked vehicles. Casas exited her patrol car and saw that the truck was the same one she had attempted to pull over earlier. The driver's side door was open, the engine was still running, and no one was inside. Appellant was laying on the ground approximately twenty feet away from the vehicle. A witness to the accident approached Casas, pointed at appellant, and told her appellant was "the guy that was driving the red truck."
Casas walked over to appellant, asked him if was okay, and asked him to stand up. Appellant "struggled a little bit, but he stood up." When Casas asked appellant a second time if he was okay, appellant responded, "Fuck you. I didn't do anything wrong." Casas felt appellant was being aggressive, so she placed him in handcuffs and walked him to her patrol car. Casas testified that she smelled alcohol on appellant's breath. His eyes were bloodshot. He was swaying back and forth and unable to stand up without Casas's support.
Appellant remained in Casas's patrol car until paramedics arrived. Appellant told the paramedics he suffered from diabetes and had some pain in his knee. The paramedics checked appellant's blood pressure and diabetes levels; both were normal. The paramedics transported appellant to Parkland Hospital, where he refused to perform standard field sobriety tests and refused to consent to a blood draw. Casas obtained a warrant for a sample of appellant's blood. Casas testified appellant told her he had not consumed any alcohol whatsoever. It was her belief that appellant was operating a motor vehicle in a public place while intoxicated on January 24, 2016.
At the conclusion of the testimony, the State withdrew the credit card abuse allegation. The trial court found the DWI allegation "true" and found the eight nonpayment and failure to attend violations "not true." The court sentenced appellant to ten years' imprisonment.
Because the State abandoned the credit card abuse allegations and the trial court found the eight nonpayment and failure to attend violations "not true," we will not discuss the testimony of Leticia Davis and Carolyn Sanders.
DISCUSSION
In his issue, appellant contends the evidence in the record is insufficient to show he was intoxicated in violation of the conditions of his community supervision. He points out that he did not take a field sobriety test, the State did not offer the results of his blood alcohol test, and there is no evidence alcohol was found in his vehicle. Appellant also points out that while the officer said that appellant smelled like alcohol, "smell alone is not specifically indicative of intoxication as defined by statute," and that the smell of alcohol could have resulted from a person having one or two drinks just before the accident without being intoxicated. Appellant further argues that the State failed to rule out alternative explanations for his actions, such as poor health or accident-related injury.
The trial court's decision to revoke a defendant's community supervision is reviewed for an abuse of discretion. Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012). "[T]he trial court has discretion to revoke community supervision when a preponderance of the evidence supports one of State's allegations that the defendant violated a condition of his community supervision." Id.; Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). Under the "preponderance of the evidence" standard, the State must prove that the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of his community supervision. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013) (quoting Rickels, 202 S.W.3d at 764).
When, as in this case, a defendant challenges the sufficiency of the evidence to support the trial court's order revoking supervision, the appellate court views the evidence in the light most favorable to the trial court's ruling. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The trial court in the community supervision revocation proceeding is the trier of fact and the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Hacker, 389 S.W.3d at 865. Evidence sufficient to prove a single contested violation is sufficient to support a trial court's decision to revoke supervision. See Garcia v. State, 387 S.W.3d 20, 27 (Tex. Crim. App. 2012) ("proof of a single violation will support revocation"). Where, however, the State fails to meet its burden of proof on at least one alleged violation, the trial court abuses its discretion by revoking the defendant's community supervision. See Cardona, 665 S.W.2d at 493-94.
The problem with appellant's argument is it ignores the evidence presented by the State and, in particular, overlooks the trial court's role as the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See Hacker, 389 S.W.3d at 865. The State's evidence showed appellant was weaving and unable to maintain a single lane of traffic, an action that supported a traffic stop. Appellant sped up in an attempt to evade arrest when Officer Casas turned on her emergency lights to initiate a traffic stop, actions evidencing appellant's consciousness of guilt. Less than a minute later, appellant drove onto a sidewalk, hit a fence, and hit two cars--actions evidencing that appellant did not have the normal use of his mental and/or physical faculties. Appellant was on the ground twenty feet from his truck with the driver's side door open and the truck running when Casas arrived on the scene, evidence from which the trial court could have believed appellant tried to flee the scene but was too intoxicated to run away. When Casas asked him if he was okay, appellant answered with an expletive and said he "didn't do anything wrong." The trial court could have reasonably concluded appellant's belligerence was the result of intoxication, and that his declaration of innocence was indicative of his awareness that he was driving while intoxicated in violation of the conditions of his community supervision. The evidence in this case, including the evidence that appellant's breath smelled of alcohol, that his eyes were bloodshot, that he could not maintain his balance without assistance, and Officer Casas's testimony that she believed appellant was operating a motor vehicle in a public place while intoxicated, is sufficient for the trial court to have rationally concluded the essential elements of driving while intoxicated were established by a preponderance of the evidence. Accordingly, the trial court did not abuse its discretion by revoking appellant's community supervision. We overrule appellant's issue.
One additional issue concerns the State's two cross-points arguing the wrong judgment form was used when preparing the judgment revoking appellant's community supervision, thereby creating clerical errors in the judgment--e.g., the judgment incorrectly reflected that appellant pleaded "true" to the violations alleged in the State's motion and that appellant was sentenced in accordance with a plea bargain agreement. The State argued the trial court's judgment should either be modified to correctly reflect what happened in this case, or this case should be abated and remanded to the trial court for substitution of the judgment with a judgment prepared on the correct judgment form with accurate information. On May 8, 2017, we issued an order abating this case and directing the trial court to enter a corrected judgment of conviction that contains all of the statutorily mandated information. The trial court has sent us a supplemental clerk's record containing a corrected judgment of conviction. Accordingly, we deny the State's two cross-points as moot.
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160644F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F12-60579-V.
Opinion delivered by Justice Myers. Justices Bridges and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 14th day of June, 2017.