Jack Poss v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00010-CR
JACK POSS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Jack Poss received deferred adjudication community supervision
after he pleaded guilty to indecency with a child. See Tex. Penal Code Ann.
§ 21.11(a)(1) (West 2011). The State later filed a petition to proceed to
adjudication. At the adjudication hearing, Poss pleaded ―true‖ to two of the
State’s allegations—that he consumed alcohol and that he left the county that he
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See Tex. R. App. P. 47.4.
was conditioned to remain in, both violations of the terms of his community
supervision. The State also presented evidence that he violated several other
terms of his community supervision. After hearing testimony from several
witnesses, including Poss himself, the trial court found eleven additional
allegations true, adjudicated Poss guilty of indecency with a child, and sentenced
him to twenty years’ confinement. In a single issue that contains two distinct
parts, Poss argues that the trial court abused its discretion by (1) adjudicating
him guilty and by (2) sentencing him to the maximum sentence allowed under the
indecency with a child statute. We will affirm.
II. DISCUSSION
Appellate review of an order revoking community supervision is limited to
determining whether the trial court abused its discretion. Rickels v. State, 202
S.W.3d 759, 763 (Tex. Crim. App. 2006); Miles v. State, 343 S.W.3d 908, 912
(Tex. App.—Fort Worth 2011, no pet.); Cherry v. State, 215 S.W.3d 917, 919
(Tex. App.—Fort Worth 2007, pet. ref’d). When there is sufficient evidence to
support a finding that the defendant violated a condition of his community
supervision, the trial court does not abuse its discretion by revoking the
supervision. See Cardona v. State, 665 S.W.2d 492, 493–94 (Tex. Crim. App.
1984); Wade v. State, 83 S.W.3d 835, 839–40 (Tex. App.—Texarkana 2002, no
pet.). This is true even in the event when the trial court finds only a single
violation of community supervision. Leach v. State, 170 S.W.3d 669, 672 (Tex.
App.—Fort Worth 2005, pet. ref’d). As such, a defendant’s plea of ―true‖ to even
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one allegation in the State’s motion to revoke is sufficient to support the trial
court’s decision to adjudicate guilt. Cole v. State, 578 S.W.2d 127, 128 (Tex.
Crim. App. [Panel Op.] 1979); see Ramos v. State, No. 02-08-00363–CR, 2009
WL 1035120, at *1 (Tex. App.—Fort Worth Apr. 16, 2009, pet. struck) (mem. op.,
not designated for publication). Once sufficient evidence is presented of a
violation of a community-supervision condition, the trial court has broad
discretion in choosing whether to continue, modify, or revoke the community
supervision. Tex. Code Crim. Proc. Ann. art. 42.12, §§ 5, 22, 23 (West Supp.
2012); Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. [Panel Op.]
1979); Hays v. State, 933 S.W.2d 659, 661 (Tex. App.—San Antonio 1996, no
pet.). When deferred adjudication community supervision is revoked, the trial
court may generally impose any punishment authorized by statute within the
statutory range. See Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex.
Crim. App. 1999).
In part of his sole issue, Poss argues that ―other than [his] plea of true
regarding drinking alcohol and a few other minor technical violations, the
evidence was insufficient to support an adjudication.‖ But it is the pleading of
―true‖ to the State’s allegations that he drank alcohol and that he committed ―a
few other minor technical violations‖ of his community supervision that alone
supports the trial court’s decision to revoke community supervision and proceed
to adjudication. See Leach, 170 S.W.3d at 672. Therefore, the trial court did not
abuse its discretion by adjudicating Poss guilty of indecency with a child and our
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analysis ends there. See Rickels, 202 S.W.3d at 763. We overrule this portion
of Poss’s sole issue.
In the remainder of his sole issue, Poss argues that the trial court abused
its discretion by ―sentencing him to the maximum sentence allowed under the
law.‖ Poss’s argument is that the sentence is excessive in light of the evidence
presented at the sentencing hearing that, by Poss’s account, demonstrates that
he was a near-model community supervision participant. But as the State points
out, Poss did not object to his sentence when the trial court imposed it and,
although he filed a motion for new trial, he did not complain of the sentence or its
alleged disproportionality in his motion. See Kim v. State, 283 S.W.3d 473, 475
(Tex. App.—Fort Worth 2009, pet. ref’d) (holding failure to object to sentence at
time of imposition or to complain of sentence in motion for new trial does not
preserve complaint for appellate review). We hold that Poss waived this portion
of his sole issue on appeal because he failed to assert this challenge to the trial
court. See Tex. R. App. P. 33.1; Curry v. State, 910 S.W.2d 490, 497–98 (Tex.
Crim. App. 1995) (holding that failure to make specific objection at trial waives
Eighth Amendment claim of cruel and unusual punishment); Trevino v. State, 174
S.W.3d 925, 927–28 (Tex. App.—Corpus Christi 2005, pet. ref’d) (―Because the
sentence imposed is within the punishment range and is not illegal, we conclude
that the rights [the appellant] asserts for the first time on appeal are not so
fundamental as to have relieved him of the necessity of a timely, specific trial
objection.‖). We overrule this remaining portion of Poss’s sole issue.
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III. CONCLUSION
Having overruled both portions of Poss’s sole issue, we affirm the trial
court’s judgment.
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.
DAUPHINOT, J., filed a concurring and dissenting opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 6, 2013
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