Gonzalez, Cipriano ( 2015 )

PD-0920-15 PD-0920-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/21/2015 8:28:28 PM
Accepted 7/22/2015 5:01:42 PM
COURT OF CRIMINAL APPEALS ABEL ACOSTA
CLERK
OF TEXAS
CORPUS CHRISTI, TEXAS
_______________________________________________________
CIPRIANO GONZALEZ APPELLANT
V.
THE STATE OF TEXAS APPELLEE
Petition in Cause No.13-14-00308-CR
Tr. Ct. No. 10-CR-2815-F
214TH District Court of Nueces County, Texas,
and the 13th Court of Appeals,
Corpus Christi, Texas
_______________________________________________________
PETITION FOR DISCRETIONARY REVIEW
_______________________________________________________
RANDALL E. PRETZER
State Bar No. 16279300 July 22, 2015
P.O. Box 18993
Corpus Christi, Texas 78480
BUS: (361) 883-0499
FAX: (361) 883-2290
E-Mail: repretzer@gmail.com
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
JUDGE PRESIDING
THE HONORABLE JOSE LONGORIA
214ST JUDICIAL DISTRICT COURT
901 LEOPARD STREET
CORPUS CHRISTI, TEXAS 78401
COUNSEL FOR THE STATE
MS. ASHLEY EARL
ASSISTANT DISTRICT ATTORNEY
901 LEOPARD STREET
CORPUS CHRISTI, TEXAS 78401
APPELLANT
MR. CIPRIANO GONZALEZ
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
STATE JAIL DIVISION
APPELLANT'S COUNSEL
MR. RANDALL E. PRETZER, PLLC
ATTORNEY FOR APPELLANT
P.O. BOX 18993
CORPUS CHRISTI, TEXAS 78480
i
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . ii-iii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . iv-v
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . vi
PROCEDURAL HISTORY . . . . . . . . . . . . . . . 1-2
STATEMENT OF THE CASE . . . . . . . . . . . . . . 2-3
STATEMENT OF FACTS (MTR HEARING ON THE MERITS). . 3-6
FIRST GROUND FOR REVIEW . . . . . . . . . . . . . 6
FIRST GROUND FOR REVIEW
THE COURT OF APPEALS ERRED WHEN IT FAILED TO FIND THAT
THE EVIDENCE INTRODUCED DURING THE MTR HEARING
REGARDING THE ALLEGATION OF ASSAULT CAUSING BODILY
INJURY WAS FACTUALLY INSUFFICIENT TO SUPPORT THE
COURT’S FINDING BY A PREPONDERANCE OF THE EVIDENCE THAT
SUCH ALLEGATION WAS TRUE.
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 6
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . 6-7
SECOND GROUND FOR REVIEW . . . . . . . . . . . . 7-8
ii
SECOND GROUND FOR REVIEW
THE COURT OF APPEALS ERRED WHEN IT FAILED TO FIND THAT
THE PUNISHMENT ASSESSED BY THE JUDGE DURING SENTENCING
PHASE OF THE MTR WAS DISPROPORTIONATE TO THE
SERIOUSNESS OF THE ALLEGED OFFENSE, ALL IN VIOLATION OF
THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED
STATES CONSTITUTION.
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 8
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . 8-17
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . 17-18
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 18
CERTIFICATE OF COMPLIANCE, RULE 9.4(i), TRAP . . 19
APPENDIX . . . . . . . . . . . . . . . . . . . . 20
iii
INDEX OF AUTHORITIES
Cases: Page
Harris v. State, 656 S.W.2d 481, 486(Tex.Crim. App.
1983) . . . . . . . . . . . . . . . . . . . . . . . 9
Combs v. State, 652 S.W.2d 804, 806 (Tex. App.—
Houston [1st Dist.] 1983, no pet.) . . . . . . . . 9
Swenney v. State, 828 S.W.2d 254, 258 (Tex.
App.—Houston [1st Dist.] 1992) . . . . . . . . . . 9
Lovejoy v. Lillie, 569 S.W.2d 501, 503 (Tex. Civ.
App. — Tyler 1978, writ ref'd n.r.e.) . . . . . . 9
Houston Chronicle Publishing Co. v. City of Houston,
531 S.W.2d 177 (Tex. Civ. App. — Houston [14thDist.]
1975), writ ref'd n.r.e.,536 S.W.2d 559 (Tex.1976). 9
Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417,
8 L.Ed.2nd 758 (1962) . . . . . . . . . . . . . . . 10
Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (1803). 10
Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct.
2909, 2925, 49 L. Ed. 2d 859 (1976) . . . . . . . . . 11
Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct
2861, 2866, 53 L. Ed. 2d 982 (1977) . . . . . . . . . 11
iv
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77
L. Ed. 2d 637 (1983) . . . . . . . . . . . . . . . . 11
Harmelin v. Michigan, 111 S. Ct. 2680 (1991),
115 L. Ed. 2d 836 (1991) . . . . . . . . . . . . . . 12
v
STATEMENT REGARDING ORAL ARGUMENT
Appellant waives oral argument.
vi
COURT OF CRIMINAL APPEALS
OF TEXAS
CORPUS CHRISTI, TEXAS
_______________________________________________________
CIPRIANO GONZALEZ APPELLANT
V.
THE STATE OF TEXAS APPELLEE
Petition in Cause No.13-14-00308-CR
Tr. Ct. No. 10-CR-2815-F
214TH District Court of Nueces County, Texas,
and the 13th Court of Appeals,
Corpus Christi, Texas
_______________________________________________________
PETITION FOR DISCRETIONARY REVIEW
_____________________________________________________________________________________________
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
PROCEDURAL HISTORY
CIPRIANO GONZALEZ, hereinafter referred to as
Appellant, respectfully petitions the Court of Criminal
Appeals to review the judgment of the 13th Court of
Appeals which had affirmed his conviction as per that
judgment in Cause No. 13-14-00308-CR as set forth in the
1
Appendix, attached hereto and incorporated by reference
herein for any purpose.
STATEMENT OF THE CASE
On May 15, 2014, the court held a hearing on the
state’s Motion to Revoke Community Supervision, (MTR),
in this case. On the same day the Appellant pled NOT
TRUE to an allegation that on December 3, 2013, he had
committed the offense of assault causing bodily injury.
Appellant pled TRUE to the remaining allegations, with
the exception of the first allegation which the state
abandoned. (RR, Vol. 1, pp. 7-10). Then the state and the
Appellant presented testimony to the court regarding the
allegation of assault causing bodily injury. At the
conclusion of the presentation of the evidence, the court
found that all allegations were TRUE, (excluding the
abandoned allegation), and sentenced Appellant to two (2)
years in state jail. (RR, Vol. 1, page 40).
Appellant perfected his appeal by filing with the
District Clerk of Nueces County, Texas, in writing his
2
Notice of Appeal, on May 23, 2014. (CR, Vol. 1, pp. 121-
123).
STATEMENT OF FACTS
(MTR HEARING ON THE MERITS)
Again, on May 15, 2014, the court held a hearing on
the state’s Motion to Revoke Community Supervision, in
this case. On the same day the Appellant pled NOT TRUE
to an allegation that on December 3, 2013 he had committed
the offense of assault causing bodily injury. Appellant
pled TRUE to the remaining allegations, with the
exception of the first allegation which the state
abandoned.
During the MTR hearing in this case, the state called
several witnesses in an effort to prove the allegation
of assault causing bodily injury.
The first witness called by the state was Noel Perez,
who testified as follows: that on December 3, 2013 at
about 8:30 P.M. he was gathering up tools from his work
site, when suddenly (and it appears from out of the blue)
he was surrounded by Appellant and several other men;
that next he recalled his “crawling on the floor trying
3
to get up” after the alleged assailants surrounded him
and allegedly struck him; that in his testimony (and
after some prompting by the state) he suddenly recalled
Appellant being one of the men “kicking” him, though
according to his testimony, Appellant was not the first
person to hit him; that it was his opinion though that
Appellant had hit him; that all these men apparently hit
and kicked him; that they finally stopped assaulting him
and left him on the ground; that this assault had caused
him pain; that he had worked on this job under Appellant;
that he had made an additional and separate agreement
with the contractor (which excluded Appellant) for extra
pay since it would then take longer to complete the job
than anticipated under the original agreement; that this
extra money would go to him and another person he had
hired to help him complete the job, and not to Appellant;
and, that he was a tall man of six feet, five inches.
(RR, Vol. 1, pp. 10-26).
Finally, the state called its second and last
witness, Lucy Rodriguez, who testified as follows: that
she witnessed the assault on Noel Perez; and, that she
4
saw four men kicking him, including the Appellant. (RR,
Vol. 1, pp. 27-30).
The state rested.
Thereafter, the Appellant called Pedro Gonzalez, who
testified as follows: that he was Appellant’s brother;
that he was at the scene of the altercation; that the
Appellant was there to recover the keys to the building
they were repairing; that it was Noel Perez himself, (six
feet, five inches tall), who came charging at the
Appellant with a five (5) foot scraper; that a person by
the first name of “Jerry” appeared and attempted to stop
Mr. Perez from injuring Appellant; that the fight was
actually between “Jerry” and Noel; and, that neither he
nor Appellant struck Mr. Perez. (RR, Vol. 1, pp. 31-39).
The Appellant rested.
FIRST GROUND FOR REVIEW
THE COURT OF APPEALS ERRED WHEN IT FAILED TO FIND THAT
THE EVIDENCE INTRODUCED DURING THE MTR HEARING
REGARDING THE ALLEGATION OF ASSAULT CAUSING BODILY
INJURY WAS FACTUALLY INSUFFICIENT TO SUPPORT THE
5
COURT’S FINDING BY A PREPONDERANCE OF THE EVIDENCE THAT
SUCH ALLEGATION WAS TRUE.
SUMMARY OF THE ARGUMENT
There was insufficient evidence presented at the MTR
hearing to sustain a finding by a preponderance of the
evidence by the trial judge that Appellant did, in fact,
commit the offense of assault causing bodily injury since
there was conflicting testimony regarding the true
initiator and etiology of this confrontation.
ARGUMENT AND AUTHORITIES
In this particular case, this Court Criminal of
Appeals will note that there was contradicting evidence
that Appellant committed the alleged assault against Noel
Perez. The victim’s testimony itself was confusing since
he recalled only “crawling on the floor” after the
alleged assailants came from out of the blue and
surrounded him and allegedly assaulted him. Then
suddenly, (after being prompted by the state), he
recalled Appellant being one of the men “kicking” him.
6
It would appear from Mr. Perez’s testimony that he was
anxious to deflect any blame for the assault from
himself! Furthermore, Appellant’s brother related to the
court that a man named “Jerry” intervened in an effort
to fend off an initial assault perpetrated by the Mr.
Perez, during the assault in question. These conflicting
versions of who became the aggressor were sufficient in
and of themselves to rebut the trial court’s conclusion
that Appellant was a party to this confrontation.
Accordingly, Appellant contends that the state failed to
prove by a preponderance of the evidence, that the
offense of assault causing bodily injury was TRUE and
that such conflicting evidence should have caused a
reasonable person, including the judge, to hesitate in
concluding that Appellant was the aggressor and initiator
of the assault.
SECOND GROUND FOR REVIEW
THE COURT OF APPEALS ERRED WHEN IT FAILED TO
FIND THAT THE PUNISHMENT ASSESSED BY THE JUDGE
DURING SENTENCING PHASE OF THE MTR WAS
7
DISPROPORTIONATE TO THE SERIOUSNESS OF THE
ALLEGED OFFENSE, ALL IN VIOLATION OF THE EIGHTH
AND FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION.
SUMMARY OF THE ARGUMENT
It is Appellant’s position that the evidence
presented at the MTR hearing did not justify the
trial judge’s revoking his community supervision
and assessing the maximum punishment for a state
jail felony since the court should not have found
the assault allegation true, and since the
remaining allegations (to which he had pled
TRUE), were “technical” in nature and therefore
did not justify revoking Appellant’s community
supervision and sentencing him to two (2) years
in a state jail.
ARGUMENT AND AUTHORITIES
Appellant notes that under the previous rulings of
the Texas Court of Criminal Appeals, an appeal prefaced
8
on the grounds of disproportionate punishment may be
frivolous. Harris v. State, 656 S.W.2d 481, 486
(Tex.Crim.App.1983); Combs v. State, 652 S.W.2d 804, 806
(Tex. App. -- Houston [1st Dist.] 1983, no pet.).
However, Appellant raised this specific issue to ensure
there was no waiver of an anticipatory claim of
disproportionate punishment in Federal Court. See
Swenney v. State, 828 S.W.2d 254, 258 (Tex. App.—Houston
[1st Dist.] 1992). Clearly, it was within a court's
power to review a sentence imposed by judge or jury and
to determine whether such sentence passed constitutional
muster, even if no objections were made during trial.
Lovejoy v. Lillie, 569 S.W.2d 501, 503 (Tex. Civ. App. —
Tyler 1978, writ ref'd n.r.e.); Houston Chronicle
Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex.
Civ. App. — Houston [14th Dist.] 1975), writ ref'd n.r.e.,
536 S.W.2d 559 (Tex. 1976). Accordingly, the issue was
one of PROPORTIONALITY.
The Eighth Amendment to the Constitution of the
United States provides as follows: "Excessive bail shall
not be required, nor excessive fines imposed, nor cruel
9
and unusual punishment inflicted." Robinson v.
California, 370 U.S. 660, 82 S. Ct. 1417, 8 L.Ed.2nd 758
(1962), held that the Eighth Amendment was applicable
to punishments imposed by state courts through the Due
Process Clause of the Fourteenth Amendment of the United
States Constitution. Marbury v. Madison, 1 Cranch 137,
2 L. Ed. 60 (1803), concluded that it was within the powers
and duties of the judicial branch of our government to
determine what was the law and whether or not a law was
constitutional. Clearly, it was within a court's power
to review a sentence imposed by judge or jury and to
determine whether such sentence passed constitutional
muster. Though the judge assessed punishment at two (2)
years in a state jail facility, this did not mean ipso
facto that any sentence within the range of punishment
was exempt from constitutional scrutiny simply because
that was what a legislative body authorized courts and
juries to impose -– obviously such an argument is
circular in its construction. And if such were the case,
then any state legislature could with complete impunity
pass Draconian laws, for example, that made overtime
10
parking an offense punishable by life imprisonment.
In previous decisions the United States Supreme Court
concluded that the Eighth Amendment's bar to cruel and
unusual punishments was an evolving standard which
proscribed needless or barbaric infliction of pain and
sanctions which were disproportionate to the severity of
a crime. Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct.
2909, 2925, 49 L. Ed. 2d 859 (1976); Coker v. Georgia, 433
U.S. 584, 592, 97 S. Ct. 2861, 2866, 53 L. Ed. 2d 982 (1977).
Accordingly, in a 1983 U.S. Supreme Court decision, the
justices set forth certain standards by which appellate
courts might objectively review court or jury assessed
punishments to determine if they violated the
proscriptions of the Eighth Amendment. Solem v. Helm, 463
U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). The
objective standards set forth in Solem were as follows:
1. "the gravity of the offense and the harshness
of the penalty," 463 U.S., at 290-291, 103 S.Ct.,
at 3009-3010;
11
2. "the sentences imposed on other criminals in
the same jurisdiction," id., at 291, 103 S.Ct.,
at 3010; and,
3. "the sentences imposed for commission of the
same crime in other jurisdictions," id. at 219-
292, 103 S. Ct., at 3010.
However, in a U.S. Supreme Court decision, the Justices,
by a 5-4 majority, chose to limit the application of the
standards in Solem and stated that there was no
proportionality guarantee (possibly with the exception
of death penalty cases) in the Eight Amendment. Harmelin
v. Michigan, 111 S. Ct. 2680 (1991), 115 L. Ed. 2d 836
(1991). Regardless, it was Appellant's position that the
majority in Harmelin recognized that indeed the Eighth
Amendment provided a limited proportionality component
when Justice Scalia stated as follows:
"We think it enough that those who framed
and approved the Federal Constitution chose, for
whatever reason, not to include within it the
guarantee against disproportionate sentences
that some State Constitutions contained. It is
12
worth noting, however, that there was good
reason for that choice -- a reason that
reinforces the necessity of overruling Solem.
While there are relatively clear historical
guidelines and accepted practices that enable
judges to determine which modes (emphasis added)
of punishment are "cruel and unusual,"
proportionality (emphasis added) does not lend
itself to such analysis. Neither congress nor
any state legislature has ever set out with the
objective of crafting a penalty that is
"disproportionate," yet as some of the examples
mentioned above indicate, many enacted
dispositions seem to be so -- because they were
made for other times or other places, with
different social attitudes, different criminal
epidemics, different public fears, and different
prevailing theories of penology. That is not to
say that there are no absolutes; one can
imagine extreme examples that no rational
person, in any time or place could accept. But
13
for the same reason these examples are easy to
decide, they are certain never to occur
(emphasis added). Harmelin, at 111 S. Ct., at
2696-2697.
Appellant concedes that Harmelin, may have narrowed,
though not necessarily eliminated, the proportionality
component of the Eighth Amendment. However, Harmelin did
not provide any new objective standards by which to
review and reverse those "examples" which "are easy to
decide" other than Justice Kennedy's conclusion that the
first objective standard in Solem (the gravity of the
offense and the harshness of the penalty) shall be the
initial hurdle that a reviewing court must overcome
before ever considering the remaining standards two and
three in Solem. Harmelin, 111 S. Ct., at 2707.
Accordingly, Appellant contends that in reality Harmelin
has no language prohibiting appellate courts from
reviewing the constitutionality of a particular
punishment in the light of concepts of proportionality
set forth in Solem. To contend now that proportionality
was now so narrow that it was without meaning (with the
14
exception of death penalty cases, Harmelin at 111 S. Ct.
at 2701), that lawmakers may run amok enacting
reactionary legislation, and that judges or juries may
impose sentences with absolute immunity from judicial
review, was difficult to comprehend when you consider our
national and historical deference to fundamental
governmental concepts of separation of powers, and checks
and balances.
The concept of proportionality was ancient and
fundamental to the jurisprudence of emerging world
civilizations. The concept of limiting the penal sanction
through proportionality predates Magna Carta or English
Common Law and can be found in the Code of Hammurabi
which placed limits on punishment by proscribing an eye
for an eye, a tooth for a tooth, or more concisely: no
more than an eye for an eye, and no more than a tooth for
a tooth. Accordingly, Appellant contends that despite
the 5-4 decision in Harmelin, the appellate courts should
examine case law that attempted to provide rational
standards for reviewing particular punishments in
determining whether particular penal sanctions were
15
disproportionate to the severity of a particular crime.
As previously mentioned, the United States Supreme
Court in Solem established three major factors for
consideration and application in determining whether a
punishment violated the Eighth Amendment's "cruel and
unusual" proscriptions. In Appellant's particular case,
the punishment assessed by the judge at two (2) years in
a state jail facility, was excessive and clearly should
be reserved for more heinous offenders so that such a
sanction was meaningful under concepts of retribution and
deterrence.
If this Honorable Court of Criminal Appeals applied
the facts of Appellant's case to those three standards
set forth in Solem it could move through the first
threshold standard (the gravity of the offense and the
harshness of the penalty -- now required by Harmelin);
find that proportionality was an issue; conclude that
statistically intrastate sentences, from judges or
juries, would not be as harsh; and, further conclude that
the same intrastate statistics would apply to interstate
sentences.
16
The punishment assessed by the judge at two (2) years
in a state jail facility, violated the punishment
proscriptions of the Eighth Amendment of the United
States Constitution as applied to the various States by
the Fourteenth Amendment, and warrants at least a new
punishment hearing for Appellant in the trial Court.
PRAYER FOR RELIEF
For ALL the reasons stated above, Appellant
respectfully requests that this honorable Court Criminal
of Appeals reverse the trial court’s judgment, set aside
the sentence of Appellant, and remand the case back to
the trial court for a new MTR hearing; or, in the
alternative, remand the case back to the same trial court
for a new sentencing hearing on the MTR; or, reverse the
sentencing portion of the trial and render a judgment
ordering Appellant returned to community supervision
under those terms and conditions to be set forth by the
trial court.
17
RESPECTFULLY SUBMITTED:
/S/ Randall E. Pretzer_
Randall E. Pretzer, PLLC
Attorney for Appellant
State Bar No. 16279300
P.O. Box 18993
Corpus Christi, Texas 78480
BUS: (361) 883-0499
FAX: (361) 883-2290
E-MAIL: repretzer@gmail.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of
Appellant's Brief was delivered to the Nueces County
District Attorney’s Office, ATTN: Appellate Division, 901
Leopard Street, Corpus Christi, Texas 78401, by hand-
delivery, and to The State Prosecuting Attorney, P.O. Box
13046, Austin, Texas 78711-3046, on July 22, 2015, by
first class mail.
/S/ Randall E. Pretzer
Randall E. Pretzer, PLLC
Attorney for Appellant
18
CERTIFICAT OF COMPLIANCE
UNDER RULE 9.4 (i), TRAP
Please be advised that in compliance with Texas Rule
of Appellate Procedure 9.4(i)(3), as amended, I certify
that the number of words in this brief, excluding those
matters listed in Rule 94 (i)(1), is 2,591 as per the
computer count.
/S/ Randall E. Pretzer_______
Randall E. Pretzer, PLLC
Attorney for Appellant
19
APPENDIX
20
NUMBERS 13-14-00308-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CIPRIANO GONZALEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th
District Court of
Nueces County, Texas
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Perkes
Pursuant to a plea bargain agreement, appellant Cipriano Gonzalez pleaded guilty to burglary of a building,
a state jail felony. See TEX. PENAL CODE ANN. § 30.02 (West, Westlaw through Ch. 46, 2015 R.S.). The trial
court assessed appellant’s punishment at two years’ imprisonment, suspended sentence of confinement, and placed
appellant on community supervision for a period of four years. 1 The State subsequently moved to revoke appellant’s
community supervision, alleging four violations. Following an evidentiary hearing, the trial court found the
allegations true, revoked appellant’s community supervision, and sentenced him to two years' imprisonment. By two
issues, appellant argues: (1) the evidence was insufficient to support the trial court’s finding that he committed the
offense of assault causing bodily injury; and (2) the punishment assessed was disproportionate to the seriousness of
the offense in violation of the Eighth and Fourteenth Amendments to the United States Constitution. See U.S.
CONST.
1 During the term, the trial court extended the period of community supervision to five years.
21
amend. VIII, XIV. We affirm.
BACKGROUND
The State filed a motion to revoke appellant’s community supervision alleging the following violations: (1)
committing the offense of assault causing bodily injury; (2) failing to report to his probation officer; (3) failing to pay
restitution and supervisory fees; and (4) failing to pay for and complete the Felony Impact Panel program. At the
revocation hearing, appellant pleaded true to the second, third, and fourth allegations and “not true” to the first
allegation.
During the hearing, victim Noel Perez testified concerning the alleged assault. Perez stated that he worked with
appellant on an apartment remodeling project. Perez recalled gathering his tools at the end of a work-day, when he
was suddenly surrounded by appellant and three other men. He remembered being struck by one of the men and then
“crawling on the floor trying to get up,” while all four of the individuals stomped and kicked him repeatedly. Perez
testified appellant kicked him in the face while he was on the ground. Perez suffered bumps to his head, scrapes on
his knees, and injuries to his feet. Another witness testified she saw appellant kick Perez while he was on the ground.
Appellant’s brother testified that he was present during the altercation, but that it was another individual—not
appellant—who fought with Perez. At the conclusion of the hearing, the trial court found the alleged violations true,
revoked appellant’s community supervision, and sentenced appellant to two years’ imprisonment. This appeal
followed.
SUFFICIENCY OF EVIDENCE
By his first issue, appellant argues that the evidence was insufficient concerning the allegation of assault
causing bodily injury. Appellant maintains that there was conflicting evidence whether appellant was the aggressor
and initiator of the assault.
A. Standard of Review
We review a trial court’s order revoking community supervision for an abuse of discretion. Rickels v. State,
202 S.W.3d 759, 763 (Tex. Crim. App. 2006). At a probation revocation proceeding, the State bears the burden of
showing by a preponderance of the evidence that the defendant committed a violation of his community supervision
conditions. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993) (en banc); Jones v. State, 112 S.W.3d
266, 268 (Tex. App.—Corpus Christi 2003, no pet.). If the State does not meet its burden of proof, the trial court
abuses its discretion in revoking the community supervision. Cardona v. State, 665 S.W.2d 492, 493–94 (Tex.
Crim. App. 1984).
Proof by a preponderance of the evidence of any one of the alleged violations of the community supervision
conditions is sufficient to support a revocation order. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App.
[Panel Op.] 1980); Herrera v. State, 951 S.W.2d 197, 199 (Tex. App.—Corpus Christi 1997, no pet.). Further, a
plea of true alone is sufficient to support revocation of community supervision. See Cole v.
State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979); Perry v. State, 367 S.W.3d 690, 693 (Tex. App.—Texarkana
2012, no pet.); Jones, 112 S.W.3d at 268. When multiple violations are found by the trial court, we will affirm the
order revoking community supervision if the State proved any violation by a preponderance of the evidence. Smith
v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009) (“We have long held that ‘one sufficient ground for revocation
would support the trial court's order revoking’ community supervision.”).
B. Analysis
Appellant pleaded true to the allegations of: failing to report to his probation officer; failing to pay restitution
and supervisory fees; and failing to pay for and complete the Felony Impact Panel program. A failure to report
violation provides a sufficient basis for the trial court's decision to revoke community supervision. See, e.g.,
Flournoy v. State, 589 S.W.2d 705, 707, 709–10 (Tex. Crim. App. [Panel Op.] 1979) (no abuse of discretion to
revoke for failing to report for nine months over a period of about four years); Greer v. State, 999 S.W.2d 484, 489
(Tex. App.—Houston [14th Dist.] 1999, pet. denied) (no abuse of discretion to revoke for failing to report for a single
month); Guerra v. State, 664 S.W.2d 412, 413 (Tex. App.—Corpus Christi 1983, no pet.) (no abuse of discretion to
revoke for failing to report for three consecutive months). Although appellant argues the violations—other than assault
22
causing bodily injury—are minor, a trial court may revoke community supervision for a violation of any condition,
including any single “technical” condition. See Nurridin v. State, 154 S.W.3d 920, 924 (Tex. App.—Dallas 2005,
no pet.). Because appellant’s plea of true to failing to report is sufficient to support revocation, we need not address
appellant’s contentions concerning the assault causing bodily injury allegation. See Smith, 286 S.W.3d at 342. We
overrule appellant's first issue.
SENTENCING
By his second issue, appellant argues that the sentence is disproportionate to the seriousness of the offense
in violation of the Eighth and Fourteenth Amendments to the United States Constitution. See U.S. CONST. amend.
VIII, XIV. To preserve a complaint of disproportionate sentencing, the defendant must make a timely, specific
objection in the trial court or raise the issue in a motion for new trial. T EX. R. APP. P. 33.1; Heidelberg v. State,
144 S.W.3d 535, 542–43 (Tex. Crim. App. 2004); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.—Corpus
Christi 1989, pet. ref'd); see also Montemayor v. State, No. 13–10–00292–CR, 2011 WL 1844449, at *3 (Tex.
App.—Corpus Christi March 17, 2011, no pet.) (mem. op., not designated for publication). Almost every right,
constitutional or statutory, may be waived by the failure to object. Broxton v. State, 909 S.W.2d 912, 918 (Tex.
Crim. App. 1995); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref'd). Appellant did not
object to his sentence at the hearing, and he did not file a motion for new trial asserting any constitutional or statutory
complaints concerning his sentence. Appellant failed to preserve this issue for review on appeal. See TEX. R. APP.
P. 33.1. We overrule appellant's second issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES
Justice
Do not
publish.
TEX. R.
APP. P.
47.2(b).
Delivered and
filed the 9th day
of July, 2015.
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