David Martin Holloman v. The State of Texas--Appeal from County Court of Lampasas County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00036-CR
David Martin Holloman, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT OF LAMPASAS COUNTY
NO. 9469, HONORABLE NORRIS MONROE, JUDGE PRESIDING

PER CURIAM

 

This is an appeal from an order revoking probation. Appellant was placed on probation following his conviction for driving while intoxicated. Act of May 27, 1983, 68th Leg. R.S., ch. 303, 3, 1983 Tex. Gen. Laws 1568, 1574 (Tex. Rev. Civ. Stat. Ann. art. 6701l-1(b), (c), since amended and codified at Tex. Penal Code Ann. 49.04). The punishment is incarceration for ninety days.

Appellant first contends that the State failed to identify him as the person placed on probation in this cause. B.J. Thomas, unit supervisor for the Lampasas County probation department, identified appellant and testified that he was present in court on the day appellant was placed on probation in this cause. Thomas testified that he took appellant to the probation department at the conclusion of trial. Billie Joe Evans, a Lampasas County probation officer, identified appellant and testified that he met appellant when he was brought to the probation department after being placed on probation. Evans stated that he was appellant's probation officer at all times.

Appellant argues that Thomas's testimony was impeached by his admission during cross-examination that he had been "in and out" of court on the day in question. Appellant asserts that Evans's testimony has no weight because he admitted not being present in the courtroom when appellant was placed on probation.

The burden of proof at a probation revocation hearing is by a preponderance of the evidence. Ortega v. State, 860 S.W.2d 561, 564 (Tex. App.--Austin 1993, no pet.). The trial court is the trier of fact at the revocation hearing and the judge of the credibility of the witnesses and the weight of the testimony. Id. An appellate court reviews the evidence in the light most favorable to the trial court's findings. Id. Applying these principles to the testimony in this cause, we find the evidence sufficient to support the finding that appellant was the person placed on probation. Point of error one is overruled.

Next, appellant urges that the evidence does not support the finding that he violated the conditions of probation by committing the offense of driving while intoxicated. Copperas Cove police officer Charles Clayton testified that he stopped a car driven by appellant for observed traffic offenses. When the officer approached appellant, who remained seated in his car, he noticed the odor of alcoholic beverage. Appellant's eyes were glassy, his motions were slow and distinct, and his speech was slurred. Appellant had difficulty finding his driver's license. The officer instructed appellant to exit his car and asked him to perform various field sobriety tests. Based on appellant's performance of these tests and the other evidence, Clayton concluded that appellant was intoxicated and placed him under arrest.

Appellant points to what he asserts are inconsistencies and weaknesses in Clayton's testimony and, in essence, argues that the officer's testimony should not have been believed. But, as previously noted, the credibility of the witness was a question for the county court. Viewed in the light most favorable to the court's finding, Clayton's testimony is sufficient to establish by a preponderance of the evidence that appellant violated the conditions of probation by committing the offense of driving while intoxicated. Point of error two is overruled.

Points of error three and four challenge the sufficiency of the evidence with respect to the other two violations of probation found by the county court. Because there is sufficient evidence to sustain the first violation found by the court, we need not address these points. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).

The order revoking probation is affirmed.

 

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: October 18, 1995

Do Not Publish

BLE NORRIS MONROE, JUDGE PRESIDING

PER CURIAM

 

This is an appeal from an order revoking probation. Appellant was placed on probation following his conviction for driving while intoxicated. Act of May 27, 1983, 68th Leg. R.S., ch. 303, 3, 1983 Tex. Gen. Laws 1568, 1574 (Tex. Rev. Civ. Stat. Ann. art. 6701l-1(b), (c), since amended and codified at Tex. Penal Code Ann. 49.04). The punishment is incarceration for ninety days.

Appellant first contends that the State failed to identify him as the person placed on probation in this cause. B.J. Thomas, unit supervisor for the Lampasas County probation department, identified appellant and testified that he was present in court on the day appellant was placed on probation in this cause. Thomas testified that he took appellant to the probation department at the conclusion of trial. Billie Joe Evans, a Lampasas County probation officer, identified appellant and testified that he met appellant when he was brought to the probation department after being placed on probation. Evans stated that he was appellant's probation officer at all times.

Appellant argues that Thomas's testimony was impeached by his admission during cross-examination that he had been "in and out" of court on the day in question. Appellant asserts that Evans's testimony has no weight because he admitted not being present in the courtroom when appellant was placed on probation.

The burden of proof at a probation revocation hearing is by a preponderance of the evidence. Ortega v. State, 860 S.W.2d 561, 564 (Tex. App.--Austin 1993, no pet.). The trial court is the trier of fact at the revocation hearing and the judge of the credibility of the witnesses and the weight of the testimony. Id. An appellate court reviews the evidence in the light most favorable to the trial court's findings. Id. Applying these principles to the testimony in this cause, we find the evidence sufficient to support the finding that appellant was the person placed on probation. Point of error one is overruled.

Next, appellant urges that the evidence does not support the finding that he violated the conditions of probation by committing the offense of driving while intoxicated. Copperas Cove police officer Charles Clayton testified that he stopped a car driven by appellant for observed traffic offenses. When the officer approached appellant, who remained seated in his car, he noticed the odor of alcoholic beverage. Appellant's eyes were glassy, his motions were slow and distinct, and his speech was slurred. Appellant had difficulty finding his driver's license. The officer instructed appellant to exit his car and asked him to perform various field sobriety tests. Based on appellant's performance of these tests and the other evidence, Clayton concluded that appellant was intoxicated and placed him under arrest.

Appellant points to what he asserts are inconsistencies and weaknesses in Clayton's testimony and, in essence, argues that the officer's testimony should not have been believed. But, as previously noted, the credibility of the wit