                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-16-00171-CR


                        WILLIAM DAVID WITTMANN II, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 100th District Court
                                      Childress County, Texas
                      Trial Court No. 5881, Honorable Stuart Messer, Presiding

                                        November 22, 2016

                                 MEMORANDUM OPINION
                       Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


       Appellant, William David Wittmann II, appeals from the order of the trial court

adjudicating him guilty of the offense of assault against a family member.1 After hearing

the evidence regarding punishment, the trial court sentenced appellant to ten years in

the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ).

Appellant has perfected his appeal and presents three issues to this Court.          First,

appellant contends that the trial court abused its discretion by finding that appellant had

       1
           See TEX. PENAL CODE ANN. § 22.01(a), (b)(2) (West Supp. 2016).
violated his terms and conditions of deferred adjudication community supervision.

Second, appellant contends that certain of his terms and conditions of deferred

adjudication community supervision were unconstitutionally vague. Finally, appellant

contends that the trial court’s sentence of ten years’ incarceration was disproportionate

to the severity of the crime and therefore in violation of the United States Constitution’s

Eighth Amendment proscription against cruel and unusual punishment.              See U.S.

CONST. amend. VIII.      Disagreeing with appellant, we will affirm the judgment of

conviction and sentence entered by the trial court.


                          Factual and Procedural Background


       Pursuant to a plea agreement, appellant entered a plea of guilty to the offense of

assault against a family member on December 22, 2015. In accordance with the plea

agreement, appellant was sentenced to five years’ deferred adjudication and placed on

community supervision, with a fine of $1,000 and court costs of $249.           The State

subsequently filed a motion to adjudicate on January 20, 2016. Thereafter, the State

filed an amended motion to adjudicate on March 8. The amended motion to adjudicate

contained allegations that appellant had violated the terms and conditions of his

deferred adjudication community supervision by (1) committing the offense of assault

and violation of a protective order on January 13, 2016, a violation of condition 1; (2)

communicating with the victim in the assault case on January 13, 2016, a violation of

condition 24; (3) going within 200 feet of the victim, the victim’s residence, or the

victim’s place of employment on January 13, 2016, a violation of condition 25; and (4)




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failing to avoid places where the victim was on January 13, 2016, a violation of condition

26.2


        The trial court conducted a hearing on the State’s first amended application to

adjudicate appellant guilty on April 7, 2016. Appellant entered a plea of “Not True” to

the allegations contained in the State’s pleading.


        At the hearing on the State’s motion to adjudicate, the probation officer for the

trial court, Marc Latimer, testified that he conducted an intake interview with appellant

following his original plea of guilty. At that time, Latimer testified he went over all of the

terms and conditions of community supervision with appellant.                      Further, appellant

initialed each term and condition of community supervision, thereby signifying that he

understood each term and condition of community supervision.                      The clerk’s record

contains the order of the court setting forth the terms and conditions of community

supervision, and each applicable term and condition has the initials W.W. in front of it.

Additionally, Marci Mills, the probation officer who actually supervised appellant,

testified that she met with appellant on January 4, 2016, and discussed that appellant

should not have any contact with the victim, Brittany Schlenker.


        Justice of the Peace for Childress County, Randy Rister, testified that on

December 3, 2015, he served a protective order on appellant at the Childress County

jail. Judge Rister further testified that he went over in detail the terms of the protective

order with appellant. Included within the terms of the protective order was the provision

        2
           The first amended application to adjudicate appellant guilty also contained an allegation that
appellant had failed to avoid injurious and vicious conduct and abstain from the purchase and use of
alcohol, marijuana, and other substances. The State waived these allegations before the hearing began
on April 7, 2016.


                                                   3
that appellant was not to go within 200 yards of the victim, her residence, her mother’s

residence, Childress Elementary, or Dairy Queen.3 Judge Rister was specific about the

fact that he identified the victim covered by the protective order as Brittany Schlenker.


        Glenn Clepper then testified that he was the victim of the assault alleged in the

amended motion to adjudicate appellant. Clepper testified that his residence is located

three houses from the residence of the victim.                He is the victim’s stepfather.          On

January 13, 2016, Clepper received some communication from his stepson that caused

him to check on the victim. He proceeded down the alley toward the victim’s house and

saw appellant and two other men coming out of the victim’s backyard into the alley.

Appellant and the two other men got into a pickup truck and started driving off. Clepper

testified that he shouted at them not to come back. The pickup then stopped and

appellant and the two others got out and started running toward him. When appellant

got to Clepper, he hit him in the eye with his fist two or three times. Clepper testified he

was able to wrestle appellant to the ground when the other two men jumped on his

back. Clepper let go of appellant and all three men jumped up and ran to the truck and

left the alley.


        Clepper testified that he then called law enforcement and reported the incident.

Officer Toby Brazee of the Childress Police Department responded to the reported

assault.    Brazee testified that when he saw Clepper immediately after the assault,

Clepper had a knot and a scrape on his forehead. The State introduced State’s exhibit




        3
          We note that the amended motion to adjudicate stated appellant violated the protective order by
going within 200 feet of the victim’s residence. This difference is without significance since 200 feet is
closer than 200 yards.

                                                    4
7, a picture of Clepper taken on the evening of the assault. According to Clepper, the

injuries were not serious but did cause him pain.


      After the State rested its case-in-chief, appellant called Brittany Schlenker.

Schlenker testified that on January 13, 2016, she did not have any contact with

appellant, and that she had no phone calls or texts from appellant. She further testified

that Clepper and appellant had a contentious relationship. On cross-examination, she

restated her testimony by saying she did not see appellant in her backyard on January

13, 2016.


      Appellant testified that he was a passenger in the truck and did not have control

over where the truck went. Appellant testified that he knew he was not supposed to go

around the victim’s residence.    He denied having struck Clepper and testified that

Clepper came running down the alley and made contact with him that resulted in the

two wrestling. Further, appellant denied having any communication with the victim or

seeing her on January 13, 2016.


      After the evidence was concluded, the trial court found that appellant had

violated condition 1 of his community supervision order by committing the offense of

assault against Clepper. Further, the trial court found that appellant had violated the

protective order by going within 200 feet of the victim’s residence. The trial court found

that this violation of the protective order was also a violation of condition 25 of the

community supervision order by going within 200 feet of the victim’s residence. After

hearing punishment testimony, the trial court sentenced appellant to ten years’

confinement in the ID-TDCJ.



                                            5
       Appellant has perfected his appeal and brings forth three issues.          Appellant

contends that the trial court abused its discretion in adjudicating appellant guilty of

assault on a family member, that the terms and conditions of community supervision

were unconstitutionally vague, and that the sentence was disproportionate and

therefore in violation of the United States Constitution. Disagreeing, we will affirm.


                               Adjudicating Appellant Guilty


Standard of Review


       On violation of a condition of community supervision imposed under an order of

deferred adjudication, the defendant is entitled to a hearing limited to the determination

by the trial court of whether it proceeds with an adjudication of guilt on the original

charge. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2016); Johnson v.

State, 386 S.W.3d 347, 350 (Tex. App.—Amarillo 2012, no pet.) (citing Antwine v. State,

268 S.W.3d 634, 636 (Tex. App.—Eastland 2008, pet. ref’d)).               We review this

determination in the same manner as we review a hearing to revoke community

supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b); Johnson, 386 S.W.3d

at 350 (citing Antwine, 268 S.W.3d at 636). We review an order revoking community

supervision for an abuse of discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex.

Crim. App. 2006).


       When the standard of review is abuse of discretion, the record must simply

contain some evidence to support the decision made by the trial court. See Herald v.

State, 67 S.W.3d 292, 293 (Tex. App.—Amarillo 2001, no pet.). In determining whether

some evidence supports the trial court’s decision, we view the evidence in the light most


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favorable to the trial court’s ruling. See Cardona v. State, 665 S.W.2d 492, 493 (Tex.

Crim. App. 1984) (en banc). The trial judge is the trier of fact and the arbiter of the

credibility of the testimony during a hearing on a motion to adjudicate. See Allbright v.

State, 13 S.W.3d 817, 819 (Tex. App.—Fort Worth 2000, pet. ref’d). In a proceeding to

revoke community supervision, the burden of proof is on the State to show by a

preponderance of the evidence that the defendant violated a term and condition of

community supervision as alleged in the motion to revoke. See Cardona, 665 S.W.2d

at 493. If the State fails to meet its burden of proof, the trial court abuses its discretion

by revoking community supervision. Id. at 493–94. Proof of a violation of a single term

and condition of community supervision is sufficient to support a trial court’s decision to

adjudicate. Antwine, 268 S.W.3d at 636.


Analysis


       We begin our analysis with the reminder that the trial court is the sole trier of fact

and arbiter of the credibility of the testimony in a motion to adjudicate. See Allbright, 13

S.W.3d at 819. With this admonition in mind, we turn to the record before the Court.


       During the hearing on the motion to adjudicate, the trial court heard the testimony

of the victim of the assault alleged in the first amended motion to adjudicate, Clepper.

Clepper testified that appellant struck him two or three times in the face on January 13,

2016, and that the resulting injury caused him pain. In addition, Officer Brazee took a

photograph of Clepper. The photograph, introduced as State’s exhibit 7, clearly shows

that Clepper had an injury to his face and forehead. One of appellant’s contentions is

that Clepper received no injury during the alleged assault. The Texas Penal Code


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defines assault as “intentionally, knowingly, or recklessly causing bodily injury to

another.” See TEX. PENAL CODE ANN. § 22.01(a)(1).4 Section 1.07(a)(8) states that

“‘[b]odily injury’ means physical pain, illness or any impairment of physical condition.”

See § 1.07(a)(8) (West Supp. 2016); Settlemyre v. State, 489 S.W.3d 607, 609 (Tex.

App.—Eastland 2016, pet. ref’d) (holding that the Texas Penal Code by its very terms

requires nothing more to prove assault than that the victim felt pain). Thus, the State

proved the elements of assault.


       Although appellant denied striking Clepper, it was up to the trial court to decide

which testimony was the credible testimony. See Allbright, 13 S.W.3d at 819. By the

trial court’s finding that appellant had violated condition 1 of his terms and conditions of

community supervision, that he commit no offense against the laws of this state, any

other state or the United States, it is apparent that the trial court found the testimony of

Clepper to be the credible testimony. See id. In reviewing this finding, we review the

record in the light most favorable to the trial court’s ruling. See Cardona, 665 S.W.2d at

493. This finding is supported by the evidence produced at the hearing and is sufficient

to meet the State’s burden of proof by a preponderance of the evidence.                           See id.

Therefore, the trial court had some evidence upon which to base its ruling. See Herald,

67 S.W.3d at 293. Thus, the trial court did not abuse its discretion in adjudicating

appellant guilty of the offense of assault on a family member. See Rickels, 202 S.W.3d

at 763. Accordingly, we overrule appellant’s first issue.5



       4
           Further reference to the Texas Penal Code will be by reference to “section ____” or “§ ____.”
       5
          Having found that the trial court did not abuse its discretion in finding that appellant had
committed a new offense, we need not address appellant’s second issue that certain terms and
conditions of community supervision were unconstitutionally vague.

                                                     8
                                  Punishment Assessed


       By his third issue, appellant contends that the punishment assessed was grossly

disproportionate to the severity of the crime in violation of appellant’s Eighth

Amendment rights.      See U.S. CONST. amend. VIII. It is appellant’s contention that the

trial court sentence of ten years’ confinement in the ID-TDCJ was so grossly

disproportionate as to violate the aforementioned Eighth Amendment to the United

States Constitution.


       Appellant and the State both agree that Texas courts have long held that, as long

as punishment is assessed within the range set by the legislature in a valid statute, the

punishment is not excessive. See Romero v. State, No. 07-15-00036-CR, 2015 Tex.

App. LEXIS 12176, at *4 (Tex. App.—Amarillo Nov. 30, 2015, pet. ref’d) (mem. op.).

However, a federal constitutional prohibition against grossly disproportionate sentences

does survive. See id. In deciding the question of proportionality of a sentence we are

guided by the following objective criteria: (1) the gravity of the offense and the

harshness of the penalty, (2) the sentences imposed on other criminals in the same

jurisdiction, and (3) the sentences imposed for commission of the same crime in other

jurisdictions.   See id. at *4–5.    However, the state legislature is afforded great

deference. See id. at *5.


       In applying these factors to the case before the Court, we note that appellant was

convicted of assault on a family member. This is a third-degree felony offense carrying

a punishment range of two to ten years in the ID-TDCJ. See §§ 12.34 (West 2011),

22.01(b)(2). We have no information in this record as to what other individuals charged



                                            9
with the same offense have received in Texas. Further, there is nothing in the record

indicating what similarly situated defendants have received, in terms of punishment, in

other jurisdictions.


        To the above, we add the following observations.         Appellant was placed on

deferred adjudication for the instant offense on December 22, 2015. Within the space

of less than a month, the incident which led to the filing of the State’s motion to proceed

with adjudication occurred. Further, as the trial court stated in open court, it was very

apparent that appellant understood the terms and conditions of community supervision,

more especially those that prohibited his contact with the victim. Finally, the trial court

heard testimony from the Chief Deputy of the Childress county jail that over 900 phone

calls had been made from the jail to the victim’s phone while appellant was being held in

the jail.


        Despite what appellant may contend, that there is nothing in the record to

indicate the seriousness of the injuries received by the victim at the time of the initial

assault, it is still a physical assault on someone with whom appellant had a dating

relationship. This is a serious offense. Moreover, the factual allegations, to which

appellant pleaded guilty, indicate that the assault was occasioned by appellant

restricting the airway of the victim. Again, this is a very serious offense.


        In light of the gravity of the offense, the short time that appellant was on

community supervision, and appellant’s apparent attempts to make contact with the

victim after the date of the adjudication hearing, we find that there is nothing shown to




                                             10
indicate that the sentence pronounced by the trial court was grossly disproportionate.

We overrule appellant’s third issue.


                                       Conclusion


      Having overruled all of appellant’s issues necessary for our review, we affirm the

trial court’s judgment and sentence.




                                                     Mackey K. Hancock
                                                        Justice



Do not publish.




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