### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00889- CR

Jam es Clayton Sorre lls, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2007 -35 8, H ONO RAB LE GARY L. STEEL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant J ames Clay

ton Sorrells pleade d g uilty to the offe n s e of possession of a controlled substance. See Tex. He al t h & Safety Code Ann. § 481.115 (West 2010). Punishm ent

wa s assessed at two y ear s in state jail, but the district court suspended imposit ion of the sentence and place d Sorrells on probation fo r fo u r y ear s. Subsequently , the State filed a motion to revoke probation, alleg ing that Sorrells had violated the terms and conditions of h is p r o b a ti o n by committing the offe nse of driving while intox icated and consuming an alcoholic bever ag e. Following a hear ing, the district court found the alleg ations to be true, r evoked Sorr ells’s probation, and se ntence d him to two y ear s in state jail. I n a single point of err or on appe al, Sorrells asse rts that the district c ourt abused its discre tion in revoking his probation beca use the evidenc e was insuffic ient to prove that he violated his probation. W e will aff irm the judg ment of the district cour t.STANDARD OF REVIEW We revie w a trial court’s decision to revoke probation for abuse of discretion. Ricke ls

v. Sta t e , 202 S.W .3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State , 665 S.W .2d 492, 493 (Tex. Crim. App

. 1 9 8 4 ). Ab use of discretion occur s “only when the trial judge ’s decision was

so clea rly wrong as to lie outside the zone within whic h rea sonable minds mig ht disa g ree .” Cantu

v. State , 842 S.W .2d 667, 682 (Tex. Crim. App. 1992). I n pro b at i o n re v ocation proce eding s, the State has the burden of proving a violation of the terms of probation by a preponde ranc e of the evidenc e. Ricke ls , 202 S.W .3d at 763-64; Cobb v. State , 8 5 1 S

. W .2d 871, 873 (Tex. Crim. App. 1993). The State satisfies this burden when the g reater weig ht of the cre dible evidenc e befor e the court cre ates a rea sonable belief that a condition of probation has been v i o l at ed as all eg ed. Ricke ls , 202 S.W .3d at 764; Jenk ins v

. State , 740 S.W .2d 435, 437 (Tex. Crim. App. 1983). I f the State fails to meet its burden of proof, the trial court abuses its discretion in revoking community supervision. Cardona , 665 S.W .2d at 493-94.

We view the ev i d en ce prese nted in a revoc ation proce eding in the light most favor able to the trial court’s ruling

. Garrett v. State , 619 S.W .2d 172, 174 (Tex. Crim. App. 1981); Mauney v. State , 107 S.W .3 d 693, 695 (Tex. App.—Austin 2003, no pet.). We defe r to the trial court’s assessment of the cre dibilit y of the witnesses and the weig ht to be g iven their testimony

. Ga r r et t , 6 1 9 S.W .2d at 174; Mauney , 107 S.W .3d at 695. When more than one violation of t h e

co n d i t ions of community supervision is found by the trial court, proof by a preponde ran ce of the evidenc e of any one of the alleg ed violations is sufficie nt to sup p o rt re vocation. Moore

v. S t a t e , 6 05 S.W .2d 924, 926 (Tex. Crim. App. 1980); Atchison v. State , 124 S.W .3d 755, 758 (Tex. App.—Austin 2003, pet. ref ’d). Thus, the trial court’s judgme nt will be upheld if the evidenc e

2is sufficie nt under any g round alleg ed. See Dunavi n v. State , 611 S.W .2d 91, 101 (Tex. Crim.

App. 1981).

ANALYSIS

A person commits the offe nse of driving while intox icated if the person is intox icated while opera

ting a motor v eh icle in a public place

. Tex. Penal Code Ann. § 49.04(a) (West Supp. 2011). Sorrells as serts that the evidenc e is insufficient to prove that he committed the offe nse of dr iving while intoxicated bec ause the State “did not offe r any evidenc e establishing at what time Appellant operated a motor vehicle.” Sorrells further claims that t h e evidenc e is insufficient to prove that he consumed an alcoholic bever ag e on a cer tain date beca

use the S t at e failed to pre sent evidenc e of the time when he ha d consumed a lcohol.

The evidenc e tends to show that at approximately 1:40 a.m. on November 21, 2010, Offic er Kenda ll Wells o f t h e Ba ndera Police Depa

rtment observe d a motorcy cle ly ing on its side outside the drivewa

y of a motel. Wells testified that he pulled into the motel parking lot and spoke to a man standing next to the motorcy cle, later identified as Sorrells, who told him that the motorcy cle had stalled and that he was try ing to push it into the parking lot. Acc ording to Wells, as he spoke with S o rr el ls, he “dete cted the odor of alcohol about his person and his breath” and “a slurred, mumbled speec h.” Wells also testified that during their conver sation, Sorrells had admitted to having “a few drinks,” and W ells noted t hat t here was a bar “within about 500 y ards” of where Sorrells had be en found.

Wells proce eded to conduct a DWI investigation. Wells administered the horizontal g aze ny stag mus (HGN ) test, the walk-a nd-turn test, and the one-le g -stand test. Wells testified that

3on the HGN test, he observe d the maxi mum of six intox ication clues; that on the walk-a nd-turn test, Sorrells “per formed poorly ” by “stepping offline,” “missing heel to toe,” “ra ising his arms,” “doing the wrong number of steps,” and “doing an improper turn”; an d t h at o n the one-le g -stand test, Sorrells was “swa

y ing while balanc ing,” “used his arms for b al an ce , ” and “put his foot down during the test.” Ba sed on the results of the field sobriety tests and his training and education, Wells “dete rmined that [Sorrells] was impaire d and under the influenc e of a lcohol.” Wells place d Sorrells under arr est for driving while intox icated, advised him of his r ights, and reque sted a breath spe cimen. Sorrells ref used, and Wells obtained a sear ch war rant to draw Sorrells’s blood. Subsequen t an aly sis of the blood specimen reve aled that Sorrells had a b l o o d alcohol level of 0.25 g rams of alcohol per 100/mL of blood, which was slightly more t h an three times the leg al limit.

Sorrells claims that beca use Wells did not actua lly observe him dri ving the motorcy cle, ther e is no evidenc e tending to show that Sorrells was ope rating the motorcy cle at the time h e wa s i n t o x icated. See Sinast v. State , 688 S.W .2d 631, 632 (Tex. App.—Corpus Christi 1985), pet. r ef’d per curiam , 698 S.W .2d 153 (Tex. Crim. App. 1985) (holding that evidenc e was insufficient to sustain DWI conviction where there was no evidenc e tending to show at what time vehicle was operated). We disag ree . Wells testified that during their conver sation, Sorrells had told him “that he was coming i n to the parking lot and hit loose g rave l and it cause d the motorcy cle to fall.” And during that same conver sation, Wells had smelled alcohol on Sorrells’s breath and person and had hear d Sorrells mumbling and slurring his speec h. Shortly there aft er, W ells had observed Sorrells exhibi t sig ns of intox ication during the field sobriety tests. From this and other evidenc e, the district court could have reasonably inferr ed that Sorrells had operated the motorcycle during 4t h e time he was intox icated. Viewing the above evidenc e in the light most favorab l e t o t h e

district court’s ruling , we conclude that it is sufficie nt to prove by a preponde ranc e of the evidenc e that Sorrells had violated his probation by committing the off

ense of driving while intox icated. Alternatively , the evidenc e is also sufficie nt to show that Sorrells had violated his probation by consuming an alcoholic bever ag e. Wells testified that Sorrells had told him that he had had “a fe w drinks” and that Sorrells had been found within 500 y ards of a bar, and an analy sis of Sorrells’s blood reve aled his blood alcohol level to be .25, over three times the leg al limit

. Fr om this and other evidenc e, the district court could have rea sonably inferr ed that Sorrells had consumed alcohol on the nig ht in question.

We cannot conclude on this rec ord that the d i s t ri ct court abused its discretion in revokingSorrells’s probation. W e over rule Sorre lls’s sole point of error

. CONCLUSION We affir m the judgme nt of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: Jul y

11, 2012 Do Not Publish

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