Baron Allen Ray v. State

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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