Jeff Alan Rollins v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00098-CR
JEFF ALAN ROLLINS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 249th District Court
Johnson County, Texas
Trial Court No. F35919
MEMORANDUM OPINION
Appellant, Jeff Alan Rollins, appeals the revocation of his probation. In his sole
issue, Rollins argues that the trial court abused its discretion in revoking his probation
because the evidence supporting revocation is insufficient. We affirm.
I. BACKGROUND
On December 16, 2002, Rollins entered a plea of guilty to felony driving while
intoxicated, his third offense. See TEX. PENAL CODE ANN. § 49.04 (West 2011). The trial
court sentenced Rollins to ten years’ incarceration; however, the sentence imposed was
suspended, and Rollins was placed on probation for a term of ten years.
Subsequently, on June 25, 2010, the State filed a motion to revoke Rollins’s
probation, alleging that, on May 25, 2010, he violated several terms and conditions of
his probation. The State filed its first amended motion to revoke on February 21, 2011.
In its first amended motion, the State alleged that Rollins violated his probation by: (1)
operating a motor vehicle in a public place while he “was intoxicated by not having the
normal use of his mental and physical faculties by reason of the introduction of
alcohol . . .”; and (2) failing “to totally abstain from the illegal use of alcoholic
beverages, to wit: on or about May 25, 2010, a blood test was administered on
Defendant which tested positive for the use of alcohol and indicated a blood level of
.15.” The State noted at the revocation hearing that a blood sample was taken from
Rollins, but it was done by a paramedic student. The State did not “feel comfortable
presenting this in evidence” and also stated that it believed the evidence was
inadmissible.
The trial court conducted a hearing on the State’s motion to revoke at which
several witnesses testified on behalf of the State. Prior to the hearing, the State
abandoned the second count—the allegation pertaining to Rollins’s blood alcohol
level—contained in its motion to revoke. Rollins pleaded “not true” to the remaining
allegation contained in the State’s motion to revoke. At the conclusion of the hearing,
the trial court determined that the evidence supported a finding that Rollins operated a
motor vehicle while intoxicated. As a result of this finding, the trial court revoked
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Rollins’s probation and sentenced him to ten years’ incarceration in the Institutional
Division of the Texas Department of Criminal Justice. This appeal followed.
II. STANDARD OF REVIEW
We review a trial court’s decision to revoke a defendant’s probation under an
abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006). The State’s burden of proof is by a preponderance of the evidence, and proof of a
single violation of probation is sufficient to support revocation. Id. at 763-64; see Smith v.
State, 286 S.W.3d 333,342 (Tex. Crim. App. 2009). The state meets its burden when the
greater weight of the credible evidence creates a reasonable belief that the defendant
violated a condition of probation as alleged. See Rickels, 202 S.W.3d at 764; see also
Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983). In a hearing on a motion to
revoke probation, the trial court is the sole trier of fact and is also the judge of the
credibility of the witnesses and the weight to be given their testimony. Taylor v. State,
604 S.W.2d 175, 179 (Tex. Crim. App. 1980); see Trevino v. State, 218 S.W.3d 234, 240 (Tex.
App.—Houston [14th Dist.] 2007, no pet.). Moreover, on appeal, we examine the
evidence in the light most favorable to the trial court’s ruling. See Cantu v. State, 253
S.W.3d 273, 282 (Tex. Crim. App. 2008) (stating that the reviewing court is to defer to
the trial court’s resolution of disputed facts and reasonable inferences that can be drawn
from those facts); Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.]
1981); Duncan v. State, 321 S.W.3d 53, 57 (Tex. App.—Houston [1st Dist.] 2010, pet.
ref’d); see also Pinon v. State, No. 12-10-00400-CR, 2011 Tex. App. LEXIS 7332, at *3 (Tex.
App.—Tyler Sept. 7, 2011, no pet.) (mem. op., not designated for publication).
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III. ANALYSIS
In his sole issue, Rollins argues that the State did not prove, by a preponderance
of the evidence, that he committed “the new offense of driving while intoxicated.”
Specifically, Rollins asserts that the evidence is insufficient to show that: (1) he was
intoxicated; and (2) he operated his motorcycle while intoxicated. Rollins also contends
that there is no evidence to suggest that the accident which occurred on May 25, 2010
was caused by his intoxication rather than an alternative reasonable hypothesis,
including excessive speed, slippery road conditions, and a curved roadway.
A. Applicable Law
Section 49.04(a) of the penal code provides that: “A person commits an offense if
the person is intoxicated while operating a motor vehicle in a public place.” TEX. PENAL
CODE ANN. § 49.04(a) (West 2011). The penal code defines “intoxicated” as: “not having
the normal use of mental or physical faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a combination of two or more of those substances, or any
other substance into the body” or “having an alcohol concentration of 0.08 or more.” Id.
§ 49.01(2) (West 2011). A “motor vehicle” is “a device in, on, or by which a person or
property is or may be transported or drawn on a highway, except a device used
exclusively on stationary rails or tracks.” Id. § 32.34(a)(2) (West 2011); see id. § 49.01(3).
B. Discussion
As a basis for revocation, the State proceeded solely on the ground that:
Appellant violated his Condition Number One of his probation by
committing a new offense, to wit: on or about May 25, 2010, in Johnson
County, Texas, he did operate a motor vehicle in a public place while
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Appellant was intoxicated by not having the normal use of his mental or
physical faculties by reason of the introduction of alcohol . . . into his
body.
See id. § 49.04(a).
At the hearing on the State’s motion to revoke, Bryan Joseph Woods, Rollins’s
friend, testified that, on May 25, 2010, he hung out with Rollins and several others at a
property owned by a friend of Rollins’s grandparents. Woods recalled that the group
was “drinking some beer and scrapping for metal.” Woods arrived late to the gathering
and noticed that everyone was drinking beer when he arrived. The group hung out
together for two hours. During that time, Woods saw Rollins drink four or five beers.
When the group decided to disburse after hanging out for two hours, several people,
including Woods, offered to give Rollins a ride home. Woods also offered to put
Rollins’s motorcycle in the back of his pick-up truck and deliver it to Rollins’s house.
Woods believed that Rollins was intoxicated and should not have been driving.
Nevertheless, Rollins declined the offers for a ride home.
Rollins left the property riding his motorcycle. Woods followed Rollins in his
pick-up truck. About an eighth of a mile from the property, the road curved in the
shape of an “S-corner.”1 Rather than reduce his speed going around the curves in the
road, Rollins accelerated. Cal Renick, a nearby resident, observed Rollins drive along
the “S-corner” on the road. Renick estimated that Rollins must have been traveling at
1 The road is paved but has gravel on both sides of the asphalt. Further, the record reflected that:
(1) the weather was “nice” on the day of the incident; (2) the accident occurred during daylight hours; (3)
Rollins was familiar with the road and had driven on it several times before; and (4) there were no
obstacles in the road. These conditions undermine Rollins’s argument with respect to alternative
reasonable hypotheses.
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least ten miles faster than the posted speed limit of thirty miles per hour. As he
attempted to navigate the curves in the road, Rollins lost control of his motorcycle and
ended up in a ditch directly in front of Renick’s house.
Both Woods and Renick observed the accident, and Renick immediately ran
outside to assist Rollins. Renick noticed that Rollins “was in bad shape.” Rollins had
lacerations all over his body and a fractured leg. Renick recounted that Rollins was
drifting in and out of consciousness and that Rollins had urinated on himself. Renick
smelled a strong odor of alcohol on Rollins’s breath and concluded that Rollins was
intoxicated. Renick provided blankets and towels to combat the bleeding, and Woods
called 911.
Shortly thereafter, Wesley Williams, a paramedic for CareFlite, arrived. Williams
noticed that Rollins “had no helmet. He had a severely broken leg; had some injuries to
his face, his left eye, [and] a lot of lacerations . . . .” Williams testified that a lot of
people were present at the scene of the accident and that many of them were talking
about alcohol. Like Renick, Williams also detected a strong odor of alcohol on Rollins’s
breath. Williams then asked Rollins how much alcohol he had consumed, and Rollins
responded, “a lot.” Rollins was then transported to Harris Methodist Hospital in Fort
Worth, Texas, for treatment.
Richard Zaborowski, a trooper with the Texas Department of Public Safety,
testified that he also responded to the 911 call. When he arrived, Trooper Zaborowski
observed medical personnel treating Rollins. As he stood near Rollins, Trooper
Zaborowski also “could smell the odor of an alcoholic beverage emitting from his
Rollins v. State Page 6
[Rollins’s] person.” Trooper Zaborowski recalled that Rollins had soiled his pants, an
act that the State argues is often associated with the consumption of alcoholic
beverages, and that Rollins’s speech was slurred. Based on his investigation, Trooper
Zaborowski concluded that, at the time of the accident, Rollins was “intoxicated due to
the introduction of alcohol.”
Finally, Brandy Nelson, Rollins’s supervising probation officer, stated that, at a
July 2010 office visit, Rollins signed “an admission for drinking alcohol on the day of
the accident.” This document was admitted into evidence.
On appeal, Rollins argues that the State did not adequately prove he was
intoxicated by showing “the type of beer, how quickly the beer was consumed, when
the first beer was consumed, when the last beer was consumed, whether or not
Appellant had eaten a meal while consuming any beer, or exactly what circumstances
existed at the time Appellant consumed the beer” and did not link his driving of the
motorcycle and the alleged intoxication. However, viewing the evidence in the light
most favorable to the trial court’s ruling and keeping in mind the lesser preponderance
of the evidence standard, we conclude that the evidence is sufficient to show that
Rollins did not have the “normal use of mental or physical faculties by reason of the
introduction of alcohol” and was, thus, intoxicated while operating a motor vehicle—
his motorcycle. See TEX. PENAL CODE ANN. §§ 32.34(a)(2), 49.01(2), 49.04(a); see also
Smith, 286 S.W.3d at 342; Rickels, 202 S.W.3d at 763-64; Jenkins, 740 S.W.2d at 437. Our
conclusion is supported by witness testimony indicating that: (1) Rollins drank several
beers prior to operating his motorcycle; (2) Rollins accelerated through a curve in the
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road and ultimately crashed, even though he was familiar with the road and the road
and weather conditions were not dangerous on that day; (3) the smell of alcohol on
Rollins’s breath after the accident; (4) Rollins’s slurred speech; and (5) Rollins’s
admissions that he had drank “a lot” of alcohol on the day of the accident. Because we
are to defer to the trial court’s resolution of the evidence and the reasonable inferences
made from the evidence, we cannot say that the trial court abused its discretion in
revoking Rollins’s probation. See Cantu, 253 S.W.3d at 282; see also Rickels, 202 S.W.3d at
763. Rollins’s sole issue is overruled.
IV. CONCLUSION
Having overruled Rollins’s sole issue on appeal, we affirm the judgment of the
trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed November 9, 2011
Do not publish
[CR25]
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