Affirmed as Reformed and Memorandum Opinion filed March 28, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00423-CR


              JONATHAN IZQUIERDO GONZALES, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 252nd District Court
                           Jefferson County, Texas
                        Trial Court Cause No. 10-08834


                 MEMORANDUM                       OPINION


      Appellant entered a guilty plea to engaging in organized criminal activity.
The trial court deferred adjudication of guilt, placed appellant under community
supervision for eight years, and assessed a fine of $500. Subsequently, the State
moved to adjudicate guilt. Appellant entered a plea of “not true” to the first and
second allegation, but “true” to the third allegation. The trial court found the first
and third allegations true, adjudicated guilt, and sentenced appellant to
confinement for seventy-five years in the Institutional Division of the Texas
Department of Criminal Justice. Appellant filed a timely notice of appeal. As
reformed, we affirm.

      In his first three issues, appellant claims the trial court erred in assessing a
$500 fine against appellant in the judgment adjudicating guilt because there was no
oral pronouncement of the fine. The State concedes the fine was included in the
administrative-fee calculation and that no fine was orally pronounced. Appellant's
issues are sustained. Because the oral pronouncement controls, the fine must be
deleted from the judgment. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim.
App. 2004). Accordingly, we reform the judgment of the trial court to reflect the
administrative fees assessed in the amount of $781.00.

      Appellant’s fourth and fifth issues concern the third allegation in the State’s
motion to adjudicate guilt, that appellant failed to comply with his community
service requirements. Issue four claims the trial court abused its discretion in
accepting appellant’s plea of “true” because it was impossible for appellant to
perform the amount of community service hours ordered, making his plea
involuntary. Appellant’s fifth issue asserts because it was physically impossible to
perform the total hours of community service, the evidence was legally insufficient
to support his plea of “true.”

      The record reflects the following exchange occurred.

      THE COURT: Count 3 says you failed to provide verification of
      performing your community service hours. Is that true or not true?
      THE DEFENDANT: True.
      THE COURT: I’m sorry?
      THE DEFENDANT: True.

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      THE COURT: Okay. Have you pled true to Count 3 freely and
      voluntarily?
      THE DEFENDANT: Yes, sir.
      THE COURT: I can’t hear you.
      THE DEFENDANT: Sir?
      THE COURT: Have you pled true to Count 3 freely and voluntarily?
      THE DEFENDANT: Yes, sir.

The only attempt to claim impossibility to perform arose in the following
exchange:

      [Defense Counsel]:      And, also, with regard to your community
      service, you said you had a lot of personal things that kinda got in
      your way, and you weren't able to do that community service; is that
      right?
      [Appellant]: Yes, sir.
      [Defense Counsel]: Part of that's working those three jobs; is that
      correct?
      [Appellant]: Yes, sir.

      The record does not establish the community service ordered was impossible
to perform. Moreover, a defendant whose community supervision is revoked may
only appeal from the revocation, not the validity or invalidity of the terms and
conditions of the order entered months or years before. See Brooks v. State, 153
S.W.3d 124 (Tex. App. -- Beaumont 2004, no pet) (citing Tex. Code Crim. Proc.
Ann. art. 42.12, § 23(b) (Vernon Supp. 2004–2005); Corley v. State, 782 S.W.2d
859, 860 (Tex. Crim. App. 1989)). The record reflects appellant entered his plea of
true freely and voluntarily. A plea of true to an allegation that the defendant
violated a condition of community supervision is, standing alone, sufficient to
support the revocation. See Duncan v. State, 321 S.W.3d 53, 58 (Tex. App. --
Houston [1st Dist.] 2010, pet. ref’d) (citing Cole v. State, 578 S.W.2d 127, 128

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(Tex. Crim. App. 1979). Because the trial court did not err in accepting appellant’s
plea of true, there was sufficient evidence to support revocation.                    Issues four and
five are overruled.

        In issues six through eleven, appellant claims the sentence of seventy-five
years violates the constitution of both the United States and Texas because (1) of
his youth, (2) the deadly weapon finding renders the sentence the equivalent of a
life sentence, and (3) the trial court failed to take his youth, diminished culpability,
and other mitigating factors into account.1 The record reflects that after sentence
was pronounced counsel stated, “Your Honor, I would object to the sentence based
on the fact that it’s constitutionally disproportionate, respectfully.”

        To preserve for appellate review a complaint that a sentence is grossly
disproportionate, constituting cruel and unusual punishment, a defendant must
present to the trial court a timely request, objection, or motion stating the specific
grounds for the ruling desired. See Tex. R. App. P. 33.1(a); Rhoades v. State, 934
S.W.2d 113, 120 (Tex. Crim. App.1996) (defendant waived any error because he
presented his argument for first time on appeal); Jagaroo v. State, 180 S.W.3d 793,
802 (Tex. App. -- Houston [ 14th Dist.] 2005, pet. ref'd) (defendant did not raise
complaints that his sentences violated his state and federal rights against cruel and
unusual punishment in the trial court, and thus failed to preserve them for appellate
review).


        1
          In his reply brief, appellant claims the sentence violates Graham v. Florida, ––– U.S. ––––, 130
S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010) and Miller v. Alabama, –––U.S. ––––, 132 S.Ct. 2455, 2460,
183 L.Ed.2d 407 (2012). Miller extended Graham, a non-homicide case, to hold that a sentence of
mandatory life without parole for those under the age of eighteen at the time they commit capital murder
violates the Eighth Amendment. Because appellant did not commit capital murder and was not sentenced
to mandatory life without parole, Miller is inapplicable. Graham was decided in 2010 and appellant was
sentenced in 2012. Accordingly, the “right not recognized” exception to the general rules of error
preservation would not apply. See Sanchez v. State, 120 S.W.3d 359, 367 (Tex. Crim. App. 2003).



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      None of the arguments presented on appeal were raised when appellant was
sentenced or in a post-verdict motion filed with the trial court. See Castaneda v.
State, 135 S.W.3d 719, 723 (Tex. App. -- Dallas 2003, no pet.) (because appellant
failed to object to the sentence as violating his constitutional rights the issue was
not preserved for appellate review.) Because the complaints raised in appellant’s
brief do not comport with the objection made to the trial court, they were not
preserved for our review.

      To the extent the objection preserved error, it is only as to the sentence being
constitutionally disproportionate. We first note appellant's sentence is within the
applicable statutory range. See Tex. Pen. Code § 32.31(b)(4) and (d); and Tex.
Pen. Code § 12.35(a). "Texas courts have traditionally held that as long as the
punishment is within the range prescribed by the Legislature in a valid statute, the
punishment is not excessive, cruel, or unusual." Buchanan v. State, 68 S.W.3d
136, 141 (Tex. App. -- Texarkana 2001, no pet.). See also Jordan v. State, 495
S.W.2d 949, 952 (Tex. Crim. App. 1973). The record reflects appellant received
deferred adjudication in August 2010 for participating in a drive-by shooting. Less
than a year later, according to his voluntary statement given to police, appellant
participated in an aggravated robbery of a convenience store. No evidence was
presented as to the usual sentence in such a case. Based on the facts before the
trial court, we find the sentence was not constitutionally disproportionate.
Appellant's issues six through eleven are overruled.

      Appellant’s final four issues concern the trial court’s questioning of
appellant about the allegation in the motion to adjudicate guilt that appellant
committed the offense of aggravated robbery. Because the trial court’s revocation
of community supervision is supported by the finding of true on the allegation that
appellant failed to comply with his community service requirements, it is

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unnecessary to address these issues. Moore v. State, 11 S.W.3d 495, 501 (Tex.
App. -- Houston [14th Dist.] 2000, no pet.). Appellant’s issues twelve through
fifteen are overruled.

      Having sustained appellant’s first three issues, we reform the judgment of
the trial court to reflect the administrative fees assessed in the amount of $781.00.
As reformed, the judgment of the trial court is affirmed.


                                       PER CURIAM


Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Do not publish - TEX. R. APP. P. 47.2(b).




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