AFFIRM; and Opinion Filed December 11, 2013.




                                              In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                      No. 05-13-00087-CR

                          AARON ANTHONY BROICH, Appellant

                                                 V.

                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 296th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 296-80646-2012

                               MEMORANDUM OPINION
                         Before Justices Francis, Lang-Miers, and Lewis
                                    Opinion by Justice Lewis

       Aaron Anthony Broich appeals from the adjudication of his guilt for injury to a child.

The trial court assessed punishment at thirty years’ imprisonment. In three issues, appellant

contends the trial court abused its discretion by finding two of the allegations true in the State’s

motion to adjudicate and sentencing appellant to thirty years in prison, and the trial court

committed reversible error by sentencing appellant without having a separate punishment

hearing. We affirm the trial court’s judgment.

       Appellant waived a jury and pleaded guilty to injury to a child. See TEX. PENAL CODE

ANN. § 22.04(a) (West Supp. 2013). Pursuant to a plea agreement, the trial court deferred
adjudicating guilt and placed appellant on ten years’ community supervision. The State later

moved to adjudicate guilt, alleging appellant violated nine conditions of community supervision,

as follows: appellant committed offenses of aggravated sexual assault of L.C. on (1) May 25,

2012, (2) May 26, 2012, (3) May 27, 2012, and (4) May 28, 2012; (5) appellant failed to pay

court costs; (6) appellant failed to pay the supervision fee; (7) appellant failed to reimburse

Collin County for the costs of urinalysis testing; (8) appellant had direct communication and

contact with L.C. and her family; and (9) appellant failed to pay the cost of substance abuse

evaluation. Appellant testified at the adjudication hearing that he was to have no contact with

L.C., but he ignored that condition and had sex with L.C. while he was on community

supervision. The State also presented evidence regarding the remaining allegations. The trial

court found paragraphs two, four, five, six, seven, eight, and nine true, adjudicated appellant

guilty, and assessed punishment at thirty years’ imprisonment.

       In his first issue, appellant contends the trial court abused its discretion by finding

allegations two and four in the motion to adjudicate to be true. The State responds that the trial

court did not abuse its discretion in adjudicating appellant’s guilt because it found seven of the

nine allegations in the motion to adjudicate to be true.

       Appellate review of an order revoking community supervision is limited to determining

whether the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex.

Crim. App. 2006).       An order revoking community supervision must be supported by a

preponderance of the evidence, meaning the greater weight of the credible evidence that would

create a reasonable belief that the defendant has violated a condition of probation. Id. at 763–64.

A finding of a single violation of community supervision is sufficient to support revocation. See

Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980). Thus, in order to



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prevail on appeal, appellant must successfully challenge all the findings that support the

revocation order. See Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App. [Panel Op.]

1978).

          The motion to adjudicate alleged appellant violated his community supervision by

committing four new offenses of aggravated sexual assault of a child, by failing to pay court

costs, the supervision fee, and a urinalysis fee. The trial court found seven of the nine allegations

true. Appellant challenges the trial court’s finding of true as to only two allegations. Because

appellant does not challenge the trial court’s finding of true on the remaining allegations and

proof of one violation is sufficient, we conclude the trial court did not abuse its discretion in

revoking appellant’s community supervision and adjudicating his guilt.            See Sanchez, 603

S.W.2d at 871. We overrule appellant’s first issue.

          In his second issue, appellant contends the trial court abused its discretion by sentencing

him to thirty years in prison, rather than continuing his community supervision, because the

sentence violates the objectives of the penal code. Appellant asserts he was never provided the

tools to assist him in complying with a condition of community supervision requiring him to not

have contact with a person who continually pursued him. The State responds that appellant has

not preserved this issue for appellate review and alternatively, the sentence was neither cruel or

unusual or disproportionate to the offense.

          Appellant did not complain about the sentence either at the time it was imposed or in a

motion for new trial. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723

(Tex. App.—Dallas 2003, no pet.). Thus, appellant has not preserved this issue for appellate

review.




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         Moreover, punishment that is assessed within the statutory range for an offense is neither

excessive nor unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex.

App.—Dallas 1997, pet. ref’d); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App.

1984). Injury to a child is a first-degree felony offense punishable by imprisonment for five to

ninety-nine years or life and an optional fine not to exceed $10,000. See TEX. PENAL CODE ANN.

§§ 12.32 (West 2011), 22.04(e). The trial court heard evidence that while on community

supervision appellant committed additional first-degree felony offenses of aggravated sexual

assault of a child, as well as violating other conditions of his supervision. We conclude the trial

court did not abuse its discretion by sentencing appellant to thirty years’ imprisonment. We

overrule appellant’s second issue.

         In his third issue, appellant contends the trial court erred by sentencing him without

having a separate punishment hearing. Appellant asserts he was not given an opportunity to

present any mitigating evidence prior to sentencing. The State responds that appellant has not

preserved his complaint for appellant review because he did not object or file a motion for new

trial.

    Appellant was entitled to a punishment hearing after the adjudication of his guilt. See

Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001). However, appellant’s right to a

separate punishment hearing is a statutory right that can be waived. See id. at 886. Appellant

did not complain about the lack of a separate punishment hearing either at the time he was

adjudicated guilty or in a motion for new trial. See TEX. R. APP. P. 33.1(a)(1); Castaneda, 135

S.W.3d at 723. Thus, appellant has not preserved this issue for appellate review.

    Moreover, the record clearly reflects the trial court did not prevent appellant from presenting

punishment evidence and that appellant did, in fact, present such evidence. See Hardeman v.



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State, 1 S.W.3d 689, 691 (Tex. Crim. App. 1999) (all that is required is that defendant have

opportunity to present evidence during adjudication proceedings; “it is immaterial that the

presentation of this evidence occurred before the actual words of adjudication”); Pearson v.

State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999) (defendant not improperly sentenced at

adjudication hearing because he had opportunity to and did present punishment evidence).

   We conclude the trial court did not err in not conducting a separate punishment hearing after

adjudicating appellant’s guilt. We overrule appellant’s third issue.

       We affirm the trial court’s judgment.




                                                      /David Lewis/
                                                      DAVID LEWIS
                                                      JUSTICE


Do Not Publish
TEX. R. APP. P. 47

130087F.U05




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                               Court of Appeals
                        Fifth District of Texas at Dallas

                                      JUDGMENT


AARON ANTHONY BROICH,                              Appeal from the 296th Judicial District
Appellant                                          Court of Collin County, Texas (Tr.Ct.No.
                                                   296-80646-2012).
No. 05-13-00087-CR       V.                        Opinion delivered by Justice Lewis,
                                                   Justices Francis and Lang-Miers
THE STATE OF TEXAS, Appellee                       participating.



      Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.



      Judgment entered December 11, 2013.



                                                  /David Lewis/
                                                  DAVID LEWIS
                                                  JUSTICE




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