                                   NO. 07-03-0535-CR
                                   NO. 07-03-0536-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                SEPTEMBER 6, 2005
                          ______________________________

                                    JAMES POYNER,

                                                                Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

        FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

  NOS. 99-464,012 and 2000-468,536; HON. LARRY B. “RUSTY” LADD, PRESIDING
                     ________________________________

                               Memorandum Opinion
                         ________________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Appellant, James Poyner, appeals from two orders revoking his community

supervision granted in two separate prosecutions. He had originally been convicted for

driving while intoxicated in each case. His sole issue on appeal involves the sufficiency of

the evidence establishing that he violated a condition of his probation. We affirm the orders

of the trial court.
         To remain on community supervision, appellant had to forego engaging in criminal

conduct, among other things. Believing that he violated that condition by again driving a

motor vehicle while drunk, the State moved to revoke his community supervision.

Furthermore, the violation occurred when he left the scene of a house fire after drinking six

to seven beers. The house in question was his own. Furthermore, according to appellant,

he left at the direction of Miguel Castillo, one of the firefighters. Having acted pursuant to

the directive of a firefighter, appellant claimed below and here that his conduct was

somehow authorized.1 And, being authorized, it did not constitute a criminal act.

         At the revocation hearing, Castillo testified that he 1) “told [appellant] that if he would

like to . . . if he didn’t have a place to stay that he could stay at my house and that way he

could take the kids over to my house”, 2) “asked [appellant] to go to my house,” 3) was not

commanding him “as a law enforcement agent” to go to his house, and 4) was doing

appellant a favor “[s]omewhat as a friend . . . .” (Emphasis added). Assuming arguendo

that one can assert a claim of justification in a revocation proceeding, see TEX . PEN . CODE

ANN . §9.21(d) (Vernon 2003) (stating that the “justification afforded by this section is

available if the actor reasonably believes . . . his conduct is required or authorized to assist

a public servant in the performance of his official duty . . . .”), Castillo’s testimony could

reasonably be interpreted as less than mandatory. Indeed, words such as “asked” and “if



         1
          W e note that appellant does not question whether he was intoxicated wh ile he drove his vehicle.
Rath er, he sim ply says that his actions were involuntary because he was following the orders o f a firefighter,
and to igno re them w ould be criminal in an d of itself. See T E X . P E N . C O D E A N N . §38.15(a)(3) (Vernon 2003)
(stating that a person comm its an offense if with criminal negligence he interrupts, disrupts, impedes, or
otherwise interferes with a firefighter while the firefighter is fighting a fire or investigating the cause of a fire).
Thus, there is no n eed for this court to determin e wheth er sufficient evidence illustrates that 1) he was
intoxicated at the time o r 2) he operated a motor vehicle w hile intoxicated. Again, those issue s are
und isputed.

                                                           2
you would like to” fall short of requiring action, or so a factfinder could have legitimately

concluded. At the very least, they and the context in which they were uttered create a fact

question regarding whether Castillo stripped appellant of his free will.            And, as the

factfinder, the trial court was free to interpret them and their context in the manner it

selected. See Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980) (stating that

at a revocation hearing, the trial court is the trier of fact and the sole judge of the credibility

of the witnesses and the weight to be accorded the evidence). So, given the tenor of the

words uttered by Castillo, the trial court had reasonable basis to conclude that appellant’s

decision to operate his truck while intoxicated was quite voluntary on his part.

       We overrule appellant’s only issue and affirm the orders of revocation.



                                                     Brian Quinn
                                                     Chief Justice

Do not publish.




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