                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-413-CR


LADERRELL ANTONIO HOLLOWAY                                      APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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     The trial court revoked Appellant Laderrell Antonio Holloway’s deferred

adjudication community supervision, found him guilty of the felony offense of

aggravated assault with a deadly weapon,2 and sentenced him to fifteen years’

confinement. In one issue, Appellant argues that the trial court abused its




     1
         … See Tex. R. App. P. 47.4.
     2
         … See Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon Supp. 2008).
discretion by proceeding to adjudication and by sentencing him to fifteen years’

confinement. We will affirm.

      During the punishment phase of the revocation hearing, Carmen Lewis

testified about the events that led to Appellant pleading guilty to aggravated

assault with a deadly weapon and being placed on ten years’ deferred

adjudication community supervision.

      Lewis testified that she and Appellant lived together during the spring and

early summer 2007. She said that on June 5, 2007, she ended her relationship

with Appellant and gave him an eviction notice, which stated that he was to

leave her apartment with his belongings within seven days. Lewis testified that

on June 8, 2007, when she returned from an evening with friends, Appellant

was outside her apartment, “furious [and] angry.” She said he demanded to

know where she had been, accused her of cheating on him, and pushed her into

the apartment. Lewis said that once inside, Appellant cornered her, pushed her

down on the floor, and proceeded to “rip [her] underwear off of [her]” to

determine if she had “been out with someone else.” Lewis said that Appellant

repeatedly punched her, kicked her multiple times, and choked her.

      Lewis recounted that Appellant threatened her by saying, “You’re going

to die tonight, I told myself if you wasn’t in by midnight, I was going to kill you.

You’re going to die.” She said that Appellant went into the kitchen, grabbed

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a “butcher knife,” and began waving it around, threatening her, stabbing it into

the wall, and at one point throwing it at her. From there, according to Lewis,

Appellant demanded that she put her shoes on. Appellant then grabbed her

and, holding the knife at her side, walked her down three flights of stairs and

placed her in the passenger seat of her car. After driving around—all the while

Appellant was threatening that he was going to kill her—Lewis said they

eventually returned to her apartment, where she got on her knees and begged

him to “not do anything to me.” She said Appellant eventually calmed down

and instructed her to take a shower.       Lewis said that when she finished

showering, she found Appellant nude in her bed and that despite her protests

he proceeded to have intercourse with her. Lewis testified that she went to the

police station the next morning and reported what had transpired.

      The Grand Prairie Police Department issued an emergency protective order

enjoining Appellant from going within 500 feet of Lewis’s apartment and from

communicating with her in a threatening or harassing manner. Appellant was

indicted for kidnaping and aggravated assault with a deadly weapon. On July

23, 2007, Appellant pleaded guilty to the assault charge, and the trial court

placed him on deferred adjudication for ten years. The terms of Appellant’s

probation included the conditions that he not commit a criminal offense, that




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he report to the Tarrant County Community Supervision and Correction

Department upon release from jail, and that he have no contact with Lewis.

      Upon release, Appellant telephoned Lewis, informed her he had been

released from jail, and told her he needed a ride. Lewis testified that she told

Appellant that they should not speak to each other. She said that despite her

telling him not to call, Appellant called her a number of times that evening.

Later that night, Lewis was in her apartment watching television and talking

with a friend over the phone when she said she heard “a big bang at the door.”

She said she hung up the phone and immediately dialed 911. Lewis testified

that she grabbed a gun that she had purchased after the events of June 8 and

stood in the corner while on the phone with the 911 operator. Lewis said that

Appellant continued to “bang” on her door, and he eventually kicked in the door

and it flung open. Lewis said that at that point she fired two shots, neither of

them hitting Appellant. She said he fled the apartment but later called her and

told her that “it was on.”

      The State’s petition to proceed to adjudication alleged that Appellant

violated the terms of his community supervision by going to Lewis’s residence

in violation of a protective order, failing to report to his probation officer, 3


      3
    … Jennifer Michelle Galindo, a court officer for the Tarrant County
Community Supervision and Correction Department, testified that Appellant

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contacting Lewis by telephone, and contacting her in person. Appellant pleaded

“not true” to each of these alleged violations. The trial court found Appellant

guilty of violating the terms of his community supervision, adjudicated him

guilty of the aggravated assault with a deadly weapon offense, and sentenced

him to fifteen years in prison. This appeal followed.

      In part of his sole issue, Appellant argues that the trial court abused its

discretion in revoking his community supervision. We review the trial court’s

revocation order under an abuse of discretion standard. Cardona v. State, 665

S.W.2d 492, 493 (Tex. Crim. App. 1984) (en banc). The State’s burden of

proof at a community supervision revocation hearing is a preponderance of the

evidence. See Lee v. State, 952 S.W.2d 894, 897 (Tex. App.—Dallas 1997,

no pet.). The trial court serves as the sole arbiter of fact in proceedings of this

nature, and an appellate court must view the evidence presented in a light most

favorable to the trial court’s order. Garrett v. State, 619 S.W.2d 172, 174

(Tex. Crim. App. 1981).

      In this case, the evidence showed that Appellant had contact with Lewis

in violation of the conditions of his community supervision. In fact, Appellant

does not contest that he called Lewis multiple times, went to her house the



was released on July 23, 2007, and instructed to report to the probation office
on July 24, 2007, but failed to report on that day.

                                        5
night of July 23, and kicked in her door. Appellant argues only that his conduct

was a “mistaken, but heart-sick effort to get back together with her.” We hold

that the State carried its burden and that the trial court did not abuse its

discretion by revoking Appellant’s community supervision. We overrule this

portion of Appellant’s sole point.

      In the remainder of his sole point, Appellant argues that the trial court

abused its discretion by sentencing him to fifteen years’ confinement. We

disagree.   In order to preserve a complaint for appeal, a party must have

presented the trial court with a timely and specific request, objection, or

motion. Tex. R. App. P. 33.1(a). As a general rule, an appellant cannot assert

error pertaining to his sentence or punishment when he failed to raise such error

in the trial court. Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App.

1986). An issue concerning the severity of a sentence is not preserved when

the defendant’s contentions were not raised in the trial court by either a motion

for new trial or objection.    Holley v. State, 167 S.W.3d 546, 549 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d); Keith v. State, 975 S.W.2d 433,

433–34 (Tex. App.—Beaumont 1998, no pet.). Because Appellant did not raise

an objection that the fifteen-year sentence was an abuse of discretion, or any

objection relating to his sentence, at his revocation hearing, he has waived the

issue on appeal. Tex. R. App. P. 33.1.

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         But even if Appellant had timely objected, the trial court did not abuse its

discretion. Where, as in this case, the punishment assessed is within the range

prescribed by statute, it is beyond the province of an appellate court to pass

upon the propriety of the sentence. Darden v. State, 430 S.W.2d 494, 496

(Tex. Crim. App. 1968).        Appellant’s fifteen-year sentence falls within the

statutory range of punishment for the second-degree felony of aggravated

assault with a deadly weapon to which Appellant pleaded guilty; therefore, his

sentence is not excessive. Tex. Pen. Code Ann. §§ 12.33, 22.02(a)(2) (Vernon

2003 & Supp. 2008); see Puga v. State, 916 S.W .2d 547, 550 (Tex.

App.—San Antonio 1996, no pet.). Under these circumstances, the trial court

did not abuse its discretion by revoking Appellant’s community supervision and

imposing a fifteen-year sentence. We overrule the remainder of Appellant’s sole

point.

         Having overruled Appellant’s sole point, we affirm the trial court’s

judgment.

                                                     PER CURIAM

PANEL: HOLMAN, LIVINGSTON, and DAUPHINOT, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 6, 2008


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