                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00463-CR


BARON ALLEN RAY                                                     APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                       MEMORANDUM OPINION 1

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     Appellant Baron Allen Ray appeals the revocation of his community

supervision and subsequent twenty-four month sentence. We affirm.




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      See Tex. R. App. P. 47.4.
                                 I. Background

      On November 13, 2007, Ray pleaded guilty to possession of less than one

gram of a controlled substance. In accordance with a plea-bargain agreement,

the trial court deferred adjudicating Ray’s guilt and placed him on community

supervision for four years. On January 28, 2008, the State filed a motion to

proceed with an adjudication of Ray’s guilt, alleging that Ray had violated the

terms and conditions of his community supervision.         Under a plea-bargain

agreement, Ray pleaded true to the allegations in the motion to adjudicate. The

trial court adjudicated his guilt but suspended imposition of the twenty-four month

sentence and placed him on four years’ community supervision.

      On October 13, 2009, the State moved to revoke Ray’s community

supervision, alleging that he had tested positive for marijuana. Ray pleaded true

to the allegation and agreed to a continuation of his community supervision under

the condition that he complete a drug-treatment program.         Ray successfully

completed this program.

      On June 7, 2011, Ray was in the parking lot of a public swimming pool and

appeared to have been drinking because, according to pool attendant Madonna

Baker, “[h]e wasn’t talking right” and his behavior was “off the wall.” Baker saw

that Ray was holding a beer can and believed Ray was “highly intoxicated” based

on his behavior. Because alcohol was prohibited at the pool and because he did

not have a pass to be in the pool area, Baker told him he could not swim when

he tried to get in the pool. Ray became irritated, began loudly using profanity,


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and threw his beer can at the door of the pool office. Ray denied that he was

drinking alcohol and denied cursing, stating that he only expressed his general

displeasure with “stupid, silly rules.” Several families with children left the pool

area when this began, and Baker felt “uncomfortable.” Ray left, and Baker called

the police.

      Deputy Roland Smith arrived at the pool, and Baker gave him Ray’s

license plate, which led Deputy Smith to Ray’s house. Deputy Smith knocked on

the front door, but there was no response. He walked to the back of the house,

where he saw Ray inside and “passed out” in a chair. Deputy Smith “beat on the

door and hollered through the [open] window, and finally . . . got him to wake up.”

Ray allowed Deputy Smith to come into the house. Deputy Smith smelled the

“odor of burnt marijuana” and saw, in plain view, several packages of synthetic

marijuana, pipes, and rolling papers. Further, Ray “had a strong odor of alcohol

on his breath.” Deputy Smith determined Ray was intoxicated and placed him

under arrest.

      On July 8, 2011, the State filed a motion to revoke Ray’s community

supervision, alleging that Ray possessed drug paraphernalia, committed a

breach of the peace, and consumed alcohol, all of which violated the terms and

conditions of his community supervision. 2        Ray pleaded not true to the


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       The State also alleged that Ray possessed synthetic marijuana, but it
waived that allegation before the hearing because “the status of [synthetic
marijuana] as a controlled substance was somewhat ambiguous.”


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allegations.   At the revocation hearing, Ray’s probation officer, Bobby Ross

Hayworth, testified that Ray tested negative for alcohol and controlled

substances the day after the arrest, but he also explained that such a test would

not detect synthetic marijuana and that alcohol metabolizes quickly.

      The trial court found that Ray violated the terms and conditions of his

community supervision, revoked his community supervision, and sentenced him

to twenty-four months’ confinement. Ray now appeals and argues that the trial

court abused its discretion by revoking his community supervision because the

State failed to prove the violations by a preponderance of the evidence.

                             II. Standard Of Review

      We review an order revoking community supervision under an abuse of

discretion standard. See Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort

Worth 2007, pet. ref’d).     To justify revocation, the State must prove by a

preponderance of the evidence that the defendant violated the terms and

conditions of community supervision. See Hacker v. State, 389 S.W.3d 860,

864–65 (Tex. Crim. App. 2013); Cherry, 215 S.W.3d at 919. This burden is

satisfied if the greater weight of the credible evidence creates a reasonable belief

that it is more probable than not that the defendant violated the condition. See

Miles v. State, 343 S.W.3d 908, 912 (Tex. App.—Fort Worth 2011, no pet.).

      If the State fails to produce a preponderance of the evidence to support

revocation, the trial court abuses its discretion in revoking the community

supervision. See Cardona v. State, 665 S.W.2d 492, 493–94 (Tex. Crim. App.


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1984).   However, proof by a preponderance of any one alleged violation is

sufficient to affirm a revocation order. See Bryant v State, 391 S.W.3d 86, 93

(Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort

Worth 2012, no pet.). The trial court is the sole judge of the credibility of the

witnesses and the weight to be given their testimony; thus, we review the

evidence in the light most favorable to the trial court’s ruling. See Hacker, 389

S.W.3d at 865; Cherry, 215 S.W.3d at 919.

                                 III. Application

      Here, the preponderance of the evidence supports the trial court’s

conclusion that Ray consumed alcohol in violation of the terms and conditions of

his community supervision. Baker testified that Ray acted “highly intoxicated” at

the pool, that he was carrying a beer can, and that he acted “off the wall” and

threw the beer can at the office door.      Deputy Smith testified that Ray was

“passed out,” was difficult to rouse, and he smelled strongly of alcohol. Deputy

Smith concluded Ray was intoxicated. The testimony of a police officer or a lay

witness that an individual is intoxicated is probative evidence of intoxication.

McCown v. State, 192 S.W.3d 158, 164 (Tex. App.—Fort Worth 2006, pet. ref’d).

      Even though Ray tested negative for alcohol the next day, the evidence

shows that the metabolism rate of alcohol allows for a finding that Ray was

indeed intoxicated the day before. Although Ray denied he had been drinking,

this was a credibility determination that the trial court was in a position to make

and that we must defer to. The great weight of the credible evidence offered


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before the trial court created a reasonable belief that it was more probable than

not that Ray consumed alcohol, which was a violation of the terms and conditions

of his community supervision. See, e.g., Palafox v. State, 509 S.W.2d 846, 848

(Tex. Crim. App. 1974) (upholding revocation of community supervision on

officer’s testimony that defendant was intoxicated based on strong smell of

alcohol and slurred speech).     We need not address the other grounds for

revocation.

                                IV. Conclusion

      Because the preponderance of the evidence supported the trial court’s

revocation order, we overrule Ray’s sole issue and affirm the trial court’s

judgment. See Tex. R. App. P. 43.2(a).



                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 30, 2013




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