                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-103-CR


NAOMI GARCIA                                                    APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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                                I. Introduction

     In two points, Appellant Naomi Garcia appeals her sentence of two years’

confinement, contesting the revocation of her community supervision on a

Driving While Intoxicated (DWI) case. We affirm.




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         … See Tex. R. App. P. 47.4.
                        II. Factual and Procedural History

      In December 2003, Garcia pleaded guilty to burglary of a habitation, and

the trial court sentenced her to three years’ community supervision. In January

2005, Garcia violated the terms and conditions of her community supervision

by failing to report, and the trial court sentenced her to ten years’ confinement

and placed her in the alternative incarceration program—the Texas Department

of Corrections boot camp. In April 2005, the trial court suspended Garcia’s

sentence and placed her on five years’ community supervision. In September

2007, the State filed a motion to revoke Garcia’s community supervision,

alleging that Garcia had violated the terms and conditions of her community

supervision by driving while intoxicated. At the close of trial, the trial court

granted the State’s motion and sentenced Garcia to two years’ confinement.

This appeal followed.

                                 III. Discussion

      In her first point, Garcia argues that the evidence was factually

insufficient to support the trial court’s order revoking her community

supervision. In her second point, Garcia argues that the trial court abused its

discretion by revoking her community supervision on the ground that she

committed the offense of DWI.




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      A. Standard of Review

      We review an order revoking community supervision under an abuse of

discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.

1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983);

Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet.

ref’d). In a revocation proceeding, the State must prove by a preponderance

of the evidence that the defendant violated the terms and conditions of

community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.

1993); Cherry, 215 S.W.3d at 919. The trial court is the sole judge of the

credibility of the witnesses and the weight to be given their testimony, and we

review the evidence in the light most favorable to the trial court’s ruling.

Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex.

Crim. App. [Panel Op.] 1981); Cherry, 215 S.W.3d at 919. If the State fails

to meet its burden of proof, the trial court abuses its discretion in revoking the

community supervision. Cardona, 665 S.W.2d at 493–94.

      B. Analysis

      In her first point, Garcia acknowledges the prevailing standard in

revocation proceedings is abuse of discretion but nevertheless asks this court

to conduct a factual sufficiency analysis in the hope that the Texas Court of

Criminal Appeals will consider the issue and reverse the prevailing standard.

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Several courts of appeals, including this court, have held that a factual

sufficiency review is inapplicable to revocation proceedings. See Allbright v.

State, 13 S.W.3d 817, 818 (Tex. App.—Fort Worth 2000, pet. ref’d); Antwine

v. State, 268 S.W.3d 634, 637 (Tex. App.—Eastland 2008, pet. ref’d); Becker

v. State, 33 S.W .3d 64, 66 (Tex. App.—El Paso 2000, no pet.); Joseph v.

State, 3 S.W.3d 627, 642 (Tex. App.—Houston [14th Dist.] 1999, no pet.);

Liggett v. State, 998 S.W.2d 733, 735–36 (Tex. App.—Beaumont 1999, no

pet.); Johnson v. State, 943 S.W.2d 83, 85 (Tex. App.—Houston [1st Dist.]

1997, no pet.); Brumbalow v. State, 933 S.W.2d 298, 300 (Tex. App.—Waco

1996, pet. ref’d). Any other type of review would attenuate the trial judge’s

discretion. Allbright, 13 S.W.3d at 818. Therefore, we decline to revisit this

issue, and accordingly we overrule Garcia’s first point.

      In her second point, Garcia argues that the trial court abused its discretion

by revoking her community supervision on the ground that she committed the

offense of DWI. Specifically, Garcia argues that the evidence was too weak to

support the trial court’s conclusion that she was intoxicated.

      During the trial, Officer T.C. Dunn of the Fort Worth Police Department

testified to the following. On August 24, 2007, he observed Garcia’s vehicle,

which was heading northbound, drive through a barricade into southbound

lanes and come within ten feet of several police officers in the middle of the

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road. Upon approaching Garcia’s vehicle, he noticed that she had bloodshot

eyes and an “almost just lost” gaze.        He detected the odor of alcohol and

observed Garcia place her hand on her car to steady herself as she exited the

vehicle. Officers at the scene administered a field sobriety test and concluded

that Garcia was intoxicated.

      The trial court also heard two of Garcia’s friends testify that they had

been with Garcia the entire evening and that she was not intoxicated, nor did

she exhibit signs of intoxication.   Furthermore, Garcia testified on her own

behalf that she had not had anything intoxicating to drink, nor did she smell of

alcohol.

      Viewed in the light most favorable to the trial court’s ruling and deferring

to the trial court’s determination concerning credibility and the weight to be

given to testimony, and recalling that the State’s burden of proof is by a

preponderance of the evidence, we hold that the trial court did not abuse its

discretion by granting the State’s motion to revoke Garcia’s community

supervision. See Cherry, 215 S.W.3d at 920 (deferring to the trial court’s

determination on conflicting testimony regarding defendant’s identity).

Accordingly, we overrule Garcia’s second point.




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                             IV. Conclusion

     Having overruled both of Garcia’s points, we affirm the trial court’s

judgment.




                                        PER CURIAM


PANEL: MCCOY, J.; CAYCE, C.J.; and MEIER, J.

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

DELIVERED: April 2, 2009




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