Stuart Adam Latham v. State ( 2016 )

Opinion issued February 25, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00612-CR
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STUART ADAM LATHAM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1356904
MEMORANDUM OPINION
In 2012, Appellant, Stuart Adam Latham, pleaded guilty to assault. The trial
court placed him on deferred adjudication. In 2014, the State filed a motion to
adjudicate his guilt based on its claim that Appellant had violated the deferred
adjudication conditions by committing a new offense. Appellant pleaded not true.
The trial court found the allegations true, and assessed punishment at five years’
confinement. In two issues, Appellant argues (1) the evidence does not support the
trial court’s adjudication of guilt and (2) the assessment of five years’ confinement
was cruel and unusual.
We affirm.
Background
Appellant pleaded guilty to assaulting his girlfriend, J. Wingerter, on
December 10, 2012. The trial court placed him on deferred adjudication for two
years. One of the conditions of his community supervision was to “[c]ommit no
offense against the laws of this or any other State of the United States.”
On December 2, 2014, the State filed a motion to adjudicate guilt, alleging
that Appellant had violated the terms of his community supervision by committing
a new offense on November 8, 2014. The State alleged that Appellant had assaulted
Wingerter by choking her.
Wingerter testified at the hearing on the motion to adjudicate guilt. Wingerter
testified that she and Appellant had broken up a few weeks before the incident. On
the night of the incident, Appellant broke in through the back door of Wingerter’s
house. She testified that they began arguing. They ended up in the bedroom.
Appellant pinned Wingerter on the bed, pulled down her pants, held her down,
choked her, and forcibly had sex with her.
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During cross-examination, Wingerter had trouble recalling some details of the
day, like whether her cousin was staying there that night. Wingerter testified that
the offense had occurred seven months earlier and that she was not certain about
some details. She further testified that she was certain about being pushed onto the
bed, being pinned down, being choked, having her pants pulled down, and Appellant
forcibly having sex with her.
The trial court found the allegations true and adjudicated Appellant’s guilt,
sentencing him to five years’ confinement.
Adjudication of Guilt
In his first issue, Appellant argues the evidence does not support the trial
court’s adjudication of guilt.1
A. Standard of Review
We review a motion to adjudicate guilt in the same manner as a motion to
revoke community supervision. See Leonard v. State, 385 S.W.3d 570, 572 n.1
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In his brief, Appellant describes this issue as raising a “factual sufficiency”
challenge. Nevertheless, Appellant’s description of the standard of review for this
issue matches the standard we apply. The cases upon which both Appellant and this
Court rely do not describe this review as a factual sufficiency review. See, e.g.,
Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). Moreover, this Court
has held that the standard factual sufficiency review does not apply to community
supervision revocation proceedings. Johnson v. State, 943 S.W.2d 83, 85 (Tex.
App.—Houston [1st Dist.] 1997, no pet.); see also Joseph v. State, 3 S.W.3d 627,
642 (Tex. App.—Houston [14th Dist.] 1999, no pet.); Miles v. State, 343 S.W.3d
908, 913 (Tex. App.—Fort Worth 2011, no pet.). Accordingly, we review this issue
under the standard of review that Appellant has properly identified.
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(Tex. Crim. App. 2012) (holding hearings on motion to adjudicate guilt are subset
of revocation hearings). We review a trial court’s decision to adjudicate guilt and
revoke community supervision using an abuse of discretion standard. Id. at 576.
We view the evidence in the light most favorable to the trial court’s ruling. Cardona
v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The trial court “is the sole
judge of the credibility of the witnesses and the weight to be given to their
testimony.” Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013).
The State bears the burden to prove by a preponderance of the evidence that
appellant violated a condition of his community supervision. Id. at 864–65. This
burden is met if the greater weight of the credible evidence creates a reasonable
belief that appellant violated a condition of his community supervision. See Rickels
v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006).
B. Analysis
The State sought to adjudicate Appellant’s guilt on the ground that Appellant
had violated the terms of his community supervision by committing a new crime.
The State alleged that, during the term of his community supervision, Appellant
assaulted Wingerter. Wingerter testified at the hearing that, on November 8, 2014,
Appellant came to her house, broke open the back door, pushed her onto her bed,
held her down, choked her, and forcibly had sex with her.
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Appellant argues the evidence does not support the trial court’s adjudication
of guilty because the State only presented one witness, the testimony was
uncorroborated, and the witness lacked credibility. The fact that there was only one
witness has no bearing on our review because the testimony of one witness can be
sufficient to establish assault. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim.
App. 1971) (upholding conviction of assault based on testimony of single witness).
Likewise, there was no requirement that Wingerter’s testimony had to be
corroborated. Cf. Cathey v. State, 992 S.W.2d 460, 462–63 (Tex. Crim. App. 1999)
(holding requirement that accomplice-witness testimony be corroborated is
statutorily imposed and not derived from federal or state constitutional principles for
evidentiary reviews).
For Appellant’s claim that Wingerter was not credible, Appellant recognizes
in his brief that the trial court was the sole judge of witness credibility. See Hacker,
389 S.W.3d at 865. Appellant points out that Wingerter could not recall whether her
cousin had stayed over that night, claiming this is proof of her inability to remember
the events of that night. Wingerter testified that the offense had occurred seven
months earlier; that she was not certain about some details, like whether her cousin
was at the house that night; and that she was certain about other things, like being
pushed onto the bed, being pinned down, being choked, having her pants pulled
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down, and Appellant forcibly having sex with her. The trial court could have
reasonably credited this testimony. See id.
Appellant also points out that certain texts were sent from Wingerter’s phone
to his phone on that day through the next three days suggesting nothing had
happened between them. Wingerter testified that, after Appellant left, he took her
cell phone along with his. She testified that she did not have access to the cell phone
for the period of time in question and did not send the texts in question. The trial
court could have reasonably credited this testimony. See id.
We hold the trial did not abuse its discretion by determining there was
sufficient evidence to prove by a preponderance of the evidence that Appellant had
violated the terms of his community supervision by committing the offense of assault
during the term of his community supervision. We overrule Appellant’s first issue.
Cruel and Unusual Punishment
In his second issue, Appellant argues the assessment of five years’
confinement constitutes cruel and unusual punishment. The State argues this issue
has not been preserved for appeal. We agree.
Constitutional rights, including the right to be free from cruel and unusual
punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim.
App. 1996); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.]
2007, pet. ref’d); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th
6
Dist.] 2001, pet. ref’d). In order to preserve an issue for appeal, the complaining
party must assert an objection and obtain a ruling. TEX. R. APP. P. 33.1(a). Appellant
did not raise any objections to the term of his confinement before the trial court.
Accordingly, it has not been preserved for appeal
We overrule Appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Higley, Huddle, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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