                                 NO. 07-11-0488-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL D

                                 DECEMBER 5, 2012


                               MARK CHASE RHODES,

                                                               Appellant
                                           v.

                               THE STATE OF TEXAS,

                                                                Appellee
                         _____________________________

            FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;

               NO. 3517; HONORABLE DAN MIKE BIRD, PRESIDING


                               Memorandum Opinion


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Mark Chase Rhodes was adjudicated guilty of the offense of injury to an elderly

individual and sentenced to ten years confinement in the Department of Criminal Justice

and a $2000 fine.   On appeal, he contends the trial court abused its discretion by

sentencing him to the maximum term of confinement allowed by statute. Instead, he

sugggests that his probation should have continued. We affirm the judgment.

      After appellant pled guilty in 2007 to assaulting his former father-in-law,

adjudication was deferred, and he was placed on probation for five years. In 2011, the
State filed a motion to adjudicate his guilt alleging that he had violated the conditions of

his probation by 1) failing to report to his probation officer beginning in March 2010, 2)

failing to pay his monthly community supervision fee for five months in 2010, 3) failing to

pay court costs, a fine, and attorney’s fees beginning in May 2010, 4) failing to complete

100 hours of community service by September 1, 2007, 5) failing to complete 100 hours

of community service by March 1, 2008, 6) failing to complete 100 hours of community

service by September 1, 2008, 7) failing to complete 100 hours of community service by

March 1, 2009, and 8) failing to pay $100 to the Crime Victims’ Compensation Fund.

Appellant pled true to all of the allegations.

       After a hearing, the court assessed appellant’s confinement at ten years, which

appellant now challenges by claiming the record lacks “some evidence” to support the

sentence. We overrule the issue.

       The sentence to be imposed by the trial court after an adjudication of guilt is left

to the unfettered discretion of the trial judge. Smith v. State, 286 S.W.3d 333, 344 (Tex.

Crim. App. 2009). Moreover, the punishment imposed is not for the violation of the

conditions of community supervision but for the crime that he committed and for which

he was found guilty; here, that crime was a felony of the third degree. See Atchison v.

State, 124 S.W.3d 755, 759-60 (Tex. App.–Austin 2003, pet. ref’d) (stating that while the

violations warranting the adjudication of guilt may be considered as minor, punishment

is based upon the crime for which the appellant is adjudicated guilty, not upon the

violations of his community supervision).

       The range of imprisonment applicable to a felony of the third degree is two to ten

years. TEX. PENAL CODE ANN. § 12.34(a) (West 2011). The ten years levied here fell

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within that range.   Furthermore, the evidence indicates that appellant assaulted his

former father-in-law in the presence of appellant’s ex-wife at a time when he was under

a court order not to be within one hundred feet of her. Missing, however, is evidence

showing disproportionality between this sentence and sentences levied in other yet

similar cases.

      As long as the punishment assessed is within the statutory range as it apparently

is here, it is not generally challengeable for excessiveness. Jarvis v. State, 315 S.W.3d

158, 161-62 (Tex. App.–Beaumont 2010, no pet.); Kim v. State, 283 S.W.3d 473, 475-

76 (Tex. App.–Fort Worth 2009, pet. ref’d). We see no reason to deviate from that

truism here.

      Accordingly, the judgment is affirmed.



                                         Per Curiam

Do not publish.




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