Affirmed and Memorandum Opinion filed July 30, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00311-CR

                      ROBERT VILLARREAL, Appellant
                                          V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 122nd District Court
                           Galveston County, Texas
                       Trial Court Cause No. 07CR2810

                  MEMORANDUM OPINION
      Appellant Robert Villarreal appeals the trial court’s order adjudicating his
guilt, asserting that the trial court abused its discretion by finding that he violated
at least one of the terms and conditions of his community supervision. We affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND

      Appellant was charged by indictment with the felony offense of failure to
stop and render aid. Appellant pleaded guilty to the offense, and the trial court
deferred adjudication of guilt, placing appellant on community supervision for four
years.

         The State, in February 2012, moved to adjudicate appellant’s guilt, alleging
in a third amended motion to adjudicate guilt that appellant had violated various
terms and conditions of community supervision.          The trial court conducted a
hearing on the motion. Appellant pleaded ―not true‖ to all of the violations alleged
in the State’s motion to adjudicate. After an evidentiary hearing, the trial court
found eight violations by appellant of the terms and conditions of community
supervision.      The trial court revoked appellant’s community supervision,
adjudicated appellant’s guilt, and sentenced appellant to three years’ confinement.
On appeal, appellant asserts that the trial court abused its discretion in revoking
appellant’s community supervision because the evidence at the hearing was
insufficient to prove by a preponderance of the evidence that appellant committed
any of the eight violations found by the trial court.

                                ISSUES AND ANALYSIS

         In eight issues, appellant asserts that the evidence at the hearing was
insufficient to prove by a preponderance of the evidence that appellant committed
each of the eight violations found by the trial court. We review the trial court’s
order revoking community supervision for an abuse of discretion. See Bryant v.
State, 391 S.W.3d 86, 93 (Tex. Crim. App. 2012); Rickels v. State, 202 S.W.3d
759, 763 (Tex. Crim. App. 2006). When a trial court finds several violations of the
terms and conditions of community supervision, the trial court does not abuse its
discretion by revoking community supervision if there is proof by a preponderance
of the evidence that appellant committed at least one of the violations. See Bryant,
391 S.W.3d at 93; Rickels, 202 S.W.3d at 763. A finding of such a violation is
supported by a preponderance of the evidence if the greater weight of the credible

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evidence before the trial court creates a reasonable belief that the defendant has
violated one of the terms and conditions of community supervision. See Rickels,
202 S.W.3d 763–64.

                             Driving While Intoxicated

      In his first issue, appellant asserts that the evidence did not prove by a
preponderance of evidence that he violated the terms and conditions of community
supervision by committing the offense of driving while intoxicated on or about
January 13, 2011 in Galveston County, Texas. A person commits the offense of
driving while intoxicated if the person is intoxicated while operating a motor
vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (West 2013). The term
―intoxicated‖ means (1) not having the normal use of mental or physical faculties
by reason of the introduction of alcohol, a controlled substance, a drug, a
dangerous drug, a combination of those substances, or any substance into the body,
or (2) having an alcohol concentration of 0.08 or more. Id. at § 49.01(2) (West
2013). Appellant complains that the State did not present any evidence that
appellant was intoxicated.

      The record reflects that a state trooper, on routine patrol, observed a vehicle
traveling at a high rate of speed. According to the officer’s radar device, the
vehicle was traveling at 96 miles-per-hour in a zone with a posted speed limit of 65
miles-per-hour. The officer also observed the vehicle weave both out of its lane,
crossing the center line of the road, and within its lane as it traveled. The officer
initiated a traffic stop of the vehicle along the roadway. The officer identified
appellant in court as the driver of the vehicle.

      According to the officer, although he asked several times for a driver’s
license, appellant appeared confused about the requests and asked, ―Huh?‖
Appellant did not produce a driver’s license and offered a ―confused‖ response
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about why he could not furnish his driver’s license, stating, ―They took it from
me,‖ in an apparent reference to appellant’s attorney who took appellant’s
suspended driver’s license.      Appellant was able to recite his driver’s license
number for the officer without difficulty. The officer testified that appellant’s
speech was slurred and slow. The officer observed appellant had red, glassy eyes
and detected the strong odor of alcohol coming from within the vehicle. The
officer believed that further investigation and a roadside interview were necessary.

      The officer stated that he twice asked appellant to exit the vehicle, and
appellant complied on the second request, staggering slightly as he exited the
vehicle. According to the officer, appellant appeared to sway a little when he
stood behind the vehicle to perform field-sobriety tests. In conducting a horizontal
gaze nystagmus (HGN) sobriety test, the officer testified that appellant exhibited
six clues of intoxication.

      The officer attempted to conduct a walk-and-turn sobriety test, and
explained the instructions of the test to appellant. But appellant did not appear to
understand the instructions. According to the officer, appellant began performing
the test and stepped off of the line, failing to maintain his balance, before he
refused to continue the test. The officer testified that when he asked appellant how
much alcohol appellant had consumed, appellant asked the officer to call
appellant’s father, who was the officer’s colleague and personal friend, and
referred to an attorney. The officer placed appellant under arrest and transported
appellant to a police station.    Evidence in the record reflects that the officer
requested a specimen of appellant’s breath but that appellant refused to allow the
taking of a specimen.

      A video, showing appellant’s vehicle weaving out of its lane and the traffic
stop, was admitted into evidence and played in open court. When the State asked

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whether the officer, based on his training and experience, had formed the opinion
that appellant was intoxicated, the officer agreed, stating that he had ―formed the
opinion that [appellant] was impaired.‖                 The officer noted the following
circumstances which led to his conclusion: appellant’s weaving, the road-side
interview, the results of the standard field-sobriety test attempts, the odor of
alcohol emitted from appellant’s breath, appellant’s slurred speech, appellant’s
driving, the way appellant swayed when he walked, and appellant’s bloodshot,
glassy eyes.        The officer, on cross-examination, characterized appellant’s
stumbling, swaying, glassy and bloodshot eyes, refusal to submit a breath test, and
failure to cooperate in performing field-sobriety tests as signs weighing in favor of
intoxication.

       The record shows that the State proved by a preponderance of the evidence
that appellant violated the terms and conditions of community supervision by
committing the offense of driving while intoxicated on or about January 13, 2011
in Galveston County, Texas.1 See Bartlett v. State, 270 S.W.3d 147, 153 (Tex.
Crim. App. 2008) (noting that a defendant’s refusal to submit to a breath test is
admissible under Texas Transportation Code section 724.061 as tending to show
the defendant’s consciousness of guilt); Cotton v. State, 686 S.W.2d 140, 142 n.3
(Tex. Crim. App. 1985) (enumerating nonexclusive list of signs recognized as
evidence of intoxication, including slurred speech, bloodshot eyes, odor of alcohol
on the person, unsteady balance, and staggered gait); Annis v. State, 578 S.W.2d
406, 407 (Tex. Crim. App. 1979) (reasoning that an officer’s testimony that a


1
  Appellant complains that, although the record reflects that he exhibited six clues of intoxication
when submitting to the HGN test, the evidence does not reflect what those six clues were. But,
even ignoring the evidence regarding the HGN test, the remaining evidence in the record still
shows that the State proved this violation by a preponderance of the evidence.


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person was intoxicated provided sufficient evidence to establish element of
intoxication); Paschall v. State, 285 S.W.3d 166, 177–78 (Tex. App.—Fort Worth
2009, pet. ref’d) (holding evidence sufficient based, in part, on officer’s testimony
regarding defendant's performance on field-sobriety tests, videotape of field
sobriety tests, and officer’s opinion that defendant had lost normal use of his
mental and physical faculties, indicating his intoxication); Compton v. State, 120
S.W.3d 375, 380 (Tex. App.—Texarkana 2003, pet. ref’d) (concluding that
evidence was sufficient to support DWI conviction when jury heard officer’s
testimony surrounding stop and viewed video-recording of defendant’s
performance of field-sobriety tests); Henderson v. State, 29 S.W.3d 616, 622 (Tex.
App.—Houston [1st Dist.] 2000, pet. ref’d) (concluding that officer’s testimony
―that an individual is intoxicated is probative evidence of intoxication‖). See also
Tex. Transp. Code Ann. § 724.061 (West 2013) (―A person’s refusal of a request
by an officer to submit to the taking of a specimen of breath or blood, whether the
refusal was express or the result of an intentional failure to give the specimen, may
be introduced into evidence at the person’s trial.‖). Thus, the trial court did not
abuse its discretion in finding that appellant committed this violation and revoking
appellant’s community supervision. See Bryant, 391 S.W.3d at 93; Rickels, 202
S.W.3d at 763. Accordingly, we overrule appellant’s first issue, and we need not
address appellant’s other appellate issues.




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      We affirm the trial court’s judgment.


                                      /s/       Kem Thompson Frost
                                                Justice

Panel consists of Justices Frost, Brown, and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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