Carlos Herrerra Cumpian v. State

Carlos Herrerra Cumpian v. State IN THE TENTH COURT OF APPEALS No. 10-02-294-CR CARLOS HERRERRA CUMPIAN, Appellant v. THE STATE OF TEXAS, Appellee From the 249th District Court Somervell County, Texas Trial Court # 304 MEMORANDUM OPINION In 1998, Carlos Herrera Cumpian pled guilty to “Felony Driving While Intoxicated” and was sentenced to ten years in the Texas Department of Criminal Justice-Institutional Division. This sentence was suspended, and Cumpian was placed on community supervision. In 2002, the State filed a motion to revoke Cumpian’s community supervision alleging five violations of the conditions of that order. After a hearing, the trial judge revoked his community supervision. Cumpian complains that the trial court erred by abusing its discretion because the evidence presented was factually insufficient. We affirm. We review a revocation order under an abuse-of-discretion standard. Brumbalow v. State, 933 S.W.2d 298, 300 (Tex. App.—Waco 1996, pet. ref’d). Community supervision, once granted, should not be arbitrarily withdrawn by the trial court; the court is not authorized to revoke community supervision absent a showing that the probationer has violated a condition imposed by the court. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987) (en banc); Quisenberry v. State, 88 S.W.3d 745, 749 (Tex. App.—Waco 2002, pet. ref’d). The State must prove by a preponderance of the evidence that the defendant violated a condition of his community supervision. Quisenberry 88 S.W.3d at 749; Brumbalow, 933 S.W.2d at 300. In a revocation proceeding the judge is the trier of fact. Story v. State, 614 S.W.2d 162, 164 (Tex. Crim. App. [Panel Op.] 1981). The court may accept or reject any or all testimony of any witness. McGuire v. State, 537 S.W.2d 26, 28 (Tex. Crim. App. 1976). To sustain a revocation order, it is necessary to find sufficient evidence which supports a finding that the appellant violated one condition of his probation. Richardson v. State, 622 S.W.2d 852, 855 (Tex. Crim. App. [Panel Op.] 1981). One of the conditions of Cumpian’s probation was that he “[c]ommit no offense against the laws of this State . . . .” In its motion to revoke probation, the State alleged, inter alia, that on or about August 25, 2001, Cumpian violated this condition by driving while “intoxicated by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol into his body.” See Tex. Pen. Code Ann. §§ 49.01(2)(A), 49.04(a) (Vernon 2003). To support this allegation, Officer Kenneth Pearce testified that, on August 25, after observing Cumpian “weaving back and forth” in a white Mercury, Officer Pearce pulled Cumpian over for a traffic stop. Officer Pearce testified that Cumpian fell backwards and almost lost his balance as he stepped out of his vehicle, that Cumpian’s eyes were bloodshot and watery, his speech was slurred, he was swaying and unsteady, and his breath smelled of alcohol. Because of these observations, Officer Pearce administered three field sobriety tests to Cumpian: the Horizontal Gaze Nystagmus test; the walk-and-turn test; and the one-legged-stand test. After describing each test and how he administered it, Officer Pearce explained that Cumpian failed all three of the tests. As a result, Officer Pearce arrested Cumpian for driving while intoxicated. Cumpian contends that because 1) he did not drive in an unsafe manner the entire time that Officer Pearce was observing him; 2) no police report or video was entered into evidence; and 3) there were no intoxilizer breath test results; the State did not meet its burden of proving that he had committed the offense of driving while intoxicated beyond a preponderance of the evidence. Cumpian does not cite any case law to support his theory that these factors are dispositive in this case. We find that the State met its burden. Because we find factually sufficient evidence to support a finding that Cumpian violated a condition of his community supervision by driving while under the influence of alcohol, we do not find it necessary to discuss Cumpian’s contentions regarding the factual sufficiency of the evidence supporting the trial court’s findings of other violations of the conditions of his community supervision. See Richardson, 622 S.W.2d at 855. We affirm the order revoking Cumpian’s community supervision. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Judge Strother (Sitting by Assignment) Affirmed Opinion delivered and filed December 31, 2003 Do not publish [CR25]