Christopher Ray Regalado v. State ( 2018 )

NUMBER 13-17-00255-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CHRISTOPHER RAY REGALADO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Christopher Ray Regalado appeals from a judgment revoking
community supervision and adjudicating guilt on one count of an aggravated assault with
a deadly weapon, a second-degree felony. See TEX. PENAL CODE ANN. § 22.02(a)(2)
(West, Westlaw through 2017 1st C.S.); TEX. CODE CRIM. PROC. ANN. arts. 42A.751,
42A.755 (West, Westlaw through 2017 1st C.S.). The trial court sentenced Regalado to
confinement for five years with credit for time spent in the county jail. In two issues,
Regalado complains that (1) the allegations of him committing public intoxication and
failing to attend any twelve-step Alcoholics Anonymous (AA) meetings in the State’s
motion to revoke community supervision are supported by insufficient evidence 1; and (2)
the trial court erred in assessing punishment disproportionate to the seriousness of the
offense. We affirm.
I. BACKGROUND
Regalado was charged by indictment with one count of committing aggravated
assault with a deadly weapon against his wife. TEX. PENAL CODE ANN. § 22.02(a)(2).
Regalado waived his right to a trial by jury and pleaded guilty to the court. The trial court
accepted Regalado’s guilty plea, deferred adjudication for four years, placed him on
community supervision, and assessed a $1,500 fine. The terms of the trial court’s
community supervision order required, among other things, that Regalado attend anger
management classes, mental health counseling, a treatment alternatives to incarceration
program, parenting classes, and a batterer’s intervention prevention program. The
community supervision order prohibited Regalado from committing an offense against the
laws of this State or of the United States of America.
Approximately four years later, the State filed a motion to adjudicate guilt and
1 Regalado’s first issue purports to challenge the factual sufficiency of the evidence. However,
the Texas Court of Criminal Appeals has abolished factual sufficiency review. See Howard v. State, 333
S.W.3d 137, 138 (Tex. Crim. App. 2011) (citing Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App.
2010) (plurality op.)). Regalado’s factual sufficiency argument essentially challenges the legal sufficiency
of the evidence. Accordingly, we construe it as a legal sufficiency challenge.
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revoke community supervision. In its motion, the State alleged that Regalado had
violated the terms of his community supervision by (1) committing the offense of public
intoxication, (2) failing to attend any twelve-step AA meetings within eleven months, (3)
associating with persons smoking marijuana, and (4) testing positive for marijuana on one
occasion and cocaine on two occasions. 2 At the revocation hearing, Regalado (1)
remained “silent” on the issue of public intoxication, (2) pleaded “not true” as to the
allegation of failing to attend twelve step meetings, (3) pleaded “true” to the allegations of
drug use, and (4) pleaded “true” to associating with persons smoking marijuana.
The State called Jorge Flores, a police officer with the Kingsville Police
Department, to testify at the revocation hearing. Flores recalled responding to a call of
criminal mischief involving a vehicle that had reportedly run into a fence and several
trashcans. While responding to the call, Flores encountered Regalado walking near the
vehicle suspected of hitting the fence and trashcans. The State asked Flores if Regalado
was “cognizant” during their encounter. Flores responded that Regalado was “under the
influence” because he was “stumbling” and his eyes were “glossy.” Flores testified that
Regalado told him that he had taken “all” of his medication before leaving in his car. The
State also called Kristen Jamison, a community supervision and corrections officer with
Kleberg and Kenedy counties, to testify. Jamison testified that Regalado’s community
supervision file contained no record of him attending any AA meetings as required by the
community supervision order. When asked by the State if she could have gotten the
2 The State also alleged numerous instances of Regalado’s failure to pay fines and fees. The
violation of those terms is not at issue in this appeal.
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attendance records for the twelve-step AA meetings from the Veterans Administration
(VA), Jamison responded that she had not received anything about AA meetings from
Regalado’s VA officer.
The trial court found that Regalado violated the terms of his community supervision
by, among other things, (1) committing the offense of public intoxication, (2) failing to
attend twelve-step AA meetings within eleven months, (3) associating with persons
smoking marijuana, and (4) testing positive for marijuana and cocaine. It sentenced
Regalado to confinement for five years for the count of aggravated assault with a deadly
weapon. This appeal followed.
II. DISCUSSION
A. Revoking Community Supervision
Regalado’s first issue argues that the evidence of public intoxication and failing to
attend any twelve-step AA meetings within eleven months is legally insufficient.
According to Regalado: (1) Officer Flores’s testimony is erroneous and insufficient to
support the public intoxication charge because the arrest was probably in error and that
the officer “failed to summon EMS,” choosing instead to take him to jail; and (2) the State
had permission to, and should have, recovered the eleven months of attendance records
for the twelve-step AA program but “just plain failed” to do so.
We review the trial court’s order revoking community supervision for an abuse of
discretion. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). A trial court
may revoke community supervision if the State proves by a preponderance of the
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evidence that the defendant violated a condition of community supervision as alleged in
the motion to revoke. Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006).
A finding of a single violation of community supervision is sufficient to support
revocation. 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.”) (quoting Jones v. State, 571 S.W.2d 191, 193–94
(Tex. Crim. App. [Panel Op.] 1978)); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.
App. [Panel Op.] 1980). Additionally, a defendant’s plea of true standing alone is
sufficient to support a trial court’s decision to revoke community supervision. Cole v.
State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); Moses v. State, 590
S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979).
Regalado’s pleading of “true” regarding the cocaine use, marijuana use, and
associating with persons smoking marijuana standing alone is sufficient to support the
trial court’s decision to revoke community supervision. See Cole, 578 S.W.2d at 128;
see also Moses, 590 S.W.2d at 470. We need not address whether the evidence was
sufficient to support the other allegations. See Cole, 578 S.W.2d at 128; TEX. R. APP. P.
47.1. Regalado’s first issue is overruled.
B. Punishment Disproportionate to Seriousness of Offense
Regalado’s second issue is that the trial court erred in assessing punishment
disproportionate to the seriousness of the aggravated assault with a deadly weapon
charge. The trial court sentenced Regalado to confinement for five years with credit for
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time spent in the county jail. According to Regalado, the trial court’s assessment of five
years’ confinement is a cruel and unusual punishment under the Eighth and Fourteenth
Amendments.
We review the trial court’s assessment of punishment for an abuse of discretion.
See Quintana v. State, 777 S.W.2d 474, 479–80 (Tex. App.–Corpus Christi 1989, pet.
ref’d). The Eighth Amendment of the United States Constitution states that “excessive
bail shall not be required, nor excessive fines, nor cruel and unusual punishment inflicted.”
U.S. CONST. amend. VIII. To preserve a complaint of disproportionate sentencing, the
criminal defendant must make a timely, specific objection to the trial court or raise the
issue in a motion for new trial. Trevino v. State, 174 S.W.3d 925, 927–28 (Tex. App.—
Corpus Christi 2005, pet. ref’d). Failure to preserve error this way results in a waiver of
a criminal defendant’s Eighth and Fourteenth Amendment rights. Nunez v. State, 117
S.W.3d 309, 319 (Tex. App.—Corpus Christi 2003, no pet.), overruled, in part, on other
grounds by Resendez v. State, 160 S.W.3d 181, 186 (Tex. App.—Corpus Christi 2005,
no pet.) (en banc).
Here, Regalado did not (1) object when the trial court pronounced his sentence,
nor (2) raise the issue in a motion for new trial. Therefore, Regalado has not preserved
this issue for our review. See TEX. R. APP. P. 33.1(a). Regardless, we note that even
had Regalado preserved this issue, his five-year sentence was close to the lower end of
statutory sentencing prescribed for his second-degree felony conviction. See TEX.
PENAL CODE ANN. §§ 12.33(a), 22.02(a)(2). And punishments within the statutory limit
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are generally not found to be excessive, cruel, or unusual. See Simpson v. State, 488
S.W.3d 318, 323 (Tex. Crim. App. 2016). Regalado’s second issue is overruled.
III. CONCLUSION
The trial court’s judgment is affirmed.
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
28th day of June, 2018.
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