Dezmon Martin Garcia v. State

Opinion issued October 8, 2015

In The

Court of Appeals

For The

First District of Texas

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NO. 01-15-00133-CR

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DEZMOND MARTIN GARCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Case No. 1288553

MEMORANDUM OPINION

Dezmond Garcia appeals the trial court’s judgment revoking his community

supervision. In two issues, he argues that the evidence was insufficient to support

the trial court’s revocation of community supervision and that the trial court erred

by assessing a sentence that was excessive and disproportionate to the crime

committed. We affirm.

Background

In May 2011, Garcia pleaded guilty to aggravated assault with a deadly

weapon. The trial court deferred adjudication of guilt and placed Garcia on

community supervision for four years and assessed a $500 fine. In March 2013, the

State filed a motion, which was later amended, to adjudicate guilt based on nine

alleged violations of the terms of Garcia’s community supervision.

Garcia pleaded true to three of the State’s allegations and not true to six of

them. Garcia pleaded true, and the trial court found true, that he failed to report to

his community supervision officer on multiple occasions, failed to pay a required

fine and court costs, and failed to pay laboratory processing fees. In addition to

these three violations, the trial court also found true that Garcia failed to accurately

identify himself when asked for identification from a peace officer and failed to

participate as required in the community service restitution program. The trial

court found the remaining allegations to be not true.

Based on Garcia’s three “true” pleas and the court’s finding of two

additional violations, the trial court adjudicated Garcia’s guilt for the offense of

aggravated assault with a deadly weapon. The court assessed Garcia’s punishment

at eight years’ confinement and a $500 fine. Garcia appeals.

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Sufficiency of the Evidence

In his first issue, Garcia contends that the trial court abused its discretion by

revoking his community supervision based on insufficient evidence. Specifically,

Garcia “contends that the State failed to prove by a preponderance of the evidence

the five allegations which the trial court found to be true.”

A. Standard of review

We review an order revoking community supervision for abuse of discretion.

Akbar v. State, 190 S.W.3d 119, 122 (Tex. App.—Houston [1st Dist.] 2005, no

pet.); see Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The

State must prove by a preponderance of the evidence that the person on community

supervision violated a term of his supervision. Rickels v. State, 202 S.W.3d 759,

763–64 (Tex. Crim. App. 2006). The State meets its burden when the “greater

weight of the credible evidence creates a reasonable belief that the defendant

violated a condition of his community supervision.” Akbar, 190 S.W.3d at 123.

“When a trial court finds several violations of community-supervision conditions,

we will affirm the order revoking community supervision if the proof of any single

allegation is sufficient.” Shah v. State, 403 S.W.3d 29, 33 (Tex. App.—Houston

[1st Dist.] 2012, pet. ref’d).

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B. Trial court did not abuse its discretion

Garcia challenges all of the allegations found true by the court by

challenging the testimony of two of the State’s witnesses. Garcia argues one State

witness’s testimony did not provide “sufficient proof that Appellant violated his

probation by providing a fictitious name to police.” Garcia argues another State

witness “had no personal knowledge of the case file” and “lacked credibility

because of her resignation for mismanagement of probationer’s case files.”

Neither witness’s testimony, however, is required to support the trial court’s

judgment. At the revocation hearing, Garcia pleaded true to three allegations that

he violated the terms of his community supervision. A “plea of true, standing alone

is sufficient to support the revocation of probation.” Moses v. State, 590 S.W.2d

469, 470 (Tex. Crim. App. [Panel Op.] 1979); accord Moore v. State, 11 S.W.3d

495, 498 n.1. (Tex. App.—Houston [14th Dist.] 2000, no. pet.); see also Smith v.

State, 290 S.W.3d 368, 375 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).

“[O]nce a plea of true has been entered, a defendant may not challenge the

sufficiency of the evidence to support the subsequent revocation.” Moore, 11

S.W.3d at 498 n.1. Because Garcia pleaded true to three of the State’s allegations,

we overrule his challenge to the sufficiency of the evidence and hold that Garcia

did not establish the trial court abused its discretion. We overrule Garcia’s first

issue.

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Constitutional Challenge

In his second issue, Garcia contends that the trial court erred by assessing

“an excessive and disproportionate sentence for the community supervision

conditions which [he] violated,” in violation of the Eighth Amendment of the U.S.

Constitution and article I, section 13 of the Texas Constitution. See U.S. CONST.

amend. VIII; TEX. CONST. art. I, § 13.

First, we note that the sentence of eight years’ confinement corresponds to

the aggravated assault with a deadly weapon charge, not the violations of Garcia’s

terms of community supervision. See Arriaga v. State, 335 S.W.3d 331, 335 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref’d) (analyzing the proportionality of the

sentence in light of the crime committed, not the terms of community supervision);

Sullivan v. State, 975 S.W.2d 755, 756 (Tex. App.—Corpus Christi 1998, no pet.)

(same).

Second, to preserve his complaint of cruel and unusual punishment, Garcia

had to present to the trial court a timely request, objection, or motion, stating the

specific grounds for the ruling he desired. See TEX. R. APP. P. 33.1(a)(1)(A);

Jacoby v. State, 227 S.W.3d 128, 130 (Tex. App.—Houston [1st Dist.] 2006, pet.

ref’d.). “The constitutional right to be free from cruel and unusual punishment may

be waived.” Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th

Dist.] 2001, pet. ref’d). Garcia did not object to the trial court’s punishment during

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the hearing. Because Garcia did not object to the sentence, we hold that Garcia has

not preserved his complaint that the sentence against him is excessive and

disproportionate to the crime committed. See Jacoby, 227 S.W.3d at 130 (finding

that because appellant did not raise objection regarding alleged disproportionate

sentence in trial court or through post-trial motion, argument was not preserved for

review); cf. id. at 131 (holding that a punishment within the limits prescribed by

statute is not cruel and unusual).

Conclusion

We affirm the judgment of the trial court.

Harvey Brown

Justice

Panel consists of Justices Jennings, Higley, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

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