# Gonzalez, Cipriano

> Court of Appeals of Texas · July 22, 2015

URL: https://www.frixlaw.com/law-library/cases/4049097

## Case

- **Court:** Court of Appeals of Texas
- **Decided:** July 22, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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.

23

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4049097. Public record. Not legal advice.