Opinion issued February 27, 2014




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00721-CR
                           ———————————
                 JACOB JOSEPH HERNANDEZ, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 263rd District Court
                          Harris County, Texas
                      Trial Court Case No. 1256018



                      MEMORANDUM OPINION

     Following his guilty plea to aggravated assault of a public servant,1 the trial

court deferred an adjudication of guilt and placed Jacob Joseph Hernandez on


1
     See TEX. PENAL CODE ANN. §§ 12.32, 22.02(b)(2)(B) (West 2011).
community supervision for five years. The State subsequently filed a motion to

adjudicate guilt alleging that he violated a condition of his community supervision

and, on July 19, 2012, the trial court entered an order adjudicating appellant’s guilt

and sentencing him to fifteen years’ confinement. Appellant contends that (1) the

evidence was insufficient to support the trial court’s finding that he had violated a

condition of his community supervision and (2) the sentence assessed by the trial

court was excessive and disproportionate to the crime committed. We affirm.

                                    Background

      Following appellant’s guilty plea to the charge of aggravated assault of a

public servant, the trial court placed him on community supervision for five years

and required him to wear a Global Positioning System (GPS) ankle monitor for a

six-month period. On December 8, 2011, EZ Monitoring Services fitted appellant

with a GPS ankle monitor.

      As a witness for the State at the hearing on the motion to adjudicate,

Shannon Burns Pena, one of the owners of EZ Monitoring Services, testified that a

“strap tamper alert” from appellant’s device was signaled on March 1, 2012, at

2:07 a.m., 2 but the monitoring service’s attempt to contact appellant was


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      Pena testified that

      [T]here is a fiberoptic cable that goes throughout the strap that connects
      from one side of the monitor to the other and it keeps it on the defendant’s
      ankle. That fiberoptic cable sends a beam of light from one side to the
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unsuccessful because the phone number appellant had provided did not work. A

“tamper reset” signal was later received, indicating that the tamper had been cured.

While continuing to monitor the device, Pena noticed that it had stopped

registering movement and the only motion detected by the device over the next six

days was when it was placed on and taken off of its charger. During this period,

appellant’s monitor remained at rest for twenty hours on one occasion and, on

another occasion, reflected no motion for nearly two days. Pena testified that for a

monitor to be at rest for more than fifteen minutes at a time was rare. On March 6,

2012, the monitoring service contacted appellant’s mother and asked that appellant

come to their office the next day. At 5:21 a.m. the next morning, the monitoring

service received another strap tamper alert, followed thereafter by a tamper reset

notification. Later that morning, appellant arrived at the monitoring service’s

office wearing the monitor. Pursuant to the trial court’s order, the monitor, the

strap of which had not been cut, was tested and verified to be properly functioning

and able to detect motion. The court was notified of the tamper alerts.

      On cross-examination, Pena testified that the device’s batteries must be

charged twice a day and, when fully charged, typically last approximately twelve

hours but that the batteries occasionally lose their charge sooner. She did not know

      other every second. And if that beam of light doesn’t get all the way across
      during that second, then we are notified that there was a tamper.


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whether appellant’s device was a newer model or one of the original models

acquired two years earlier.     She occasionally had to return a device to the

manufacturer, usually due to it not holding a charge. Based upon the monitoring,

Pena testified that appellant’s ankle monitor was removed on March 1 and returned

to his ankle on March 7.

      Several defense witnesses testified at the hearing. Appellant’s wife, Karla

Arias, and his mother, Mary Helen Velasquez, both testified that they never saw

appellant tamper with his ankle monitor. Appellant’s friend, Carlos Resendez,

testified that he trusts appellant, had previously worked with appellant, and that he

had a job waiting for him if he was released from custody. Appellant also testified

and said that he had worn the monitor on his leg the entire time and that he had

never removed it.

      At the conclusion of the hearing, the trial court found by a preponderance of

the evidence that appellant had violated the terms of his community supervision,

adjudicated appellant guilty of aggravated assault of a public servant and sentenced

him to fifteen years’ confinement.

                                     Discussion

   A. Sufficiency of the Evidence

      In his first point of error, appellant contends that the evidence was

insufficient to support the trial court’s revocation of his community supervision for

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violating a condition of supervision. The State argues that the greater weight of the

evidence supported the trial court’s conclusion that appellant had violated a

condition of his community supervision by tampering with his ankle monitor.

   1. 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 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.

2012). The State bears the burden of showing by a preponderance of the evidence

that the defendant committed a violation of the conditions of community

supervision. Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006).

      The trial court’s order revoking community supervision is reviewed under an

abuse of discretion standard. Id. at 763. The trial court is the sole judge of the

credibility of the witnesses and the weight given to their testimony, and the

evidence is reviewed in the light most favorable to the trial court’s ruling.

Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984) (en banc); Johnson

v. State, 943 S.W.2d 83, 85 (Tex. App.—Houston [1st Dist.] 1997, no pet.). If the

State fails to meet its burden of proof, the trial court abuses its discretion in

revoking the community supervision. See Cardona, 665 S.W.2d at 493–94. Proof

by a preponderance of the evidence of any one of the alleged violations of the

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conditions of community supervision is sufficient to support a revocation order.

TEX. CODE CRIM. PROC. ANN. art. 42.12 § 21(b) (West Supp. 2012).

   2. Analysis

      The evidence established that as a condition of his deferred adjudication,

appellant was to wear a GPS ankle monitor for six months and was fitted with the

device on December 8, 2011. The monitoring service received two “strap tamper

alerts” from appellant’s monitor on the 1st and 7th of March, 2012. Appellant’s

device was regularly charged during this six-day period. Although unusual for a

monitor to be at rest for more than fifteen minutes at a time, the monitor twice

indicated no movement—once for a period of twenty hours and, later, for nearly

two days. It was also during this period that the monitoring service was unable to

contact appellant because the phone number he had provided was not in service.

Upon inspection, the device continued to detect motion and function properly. The

witness from the monitoring service testified that she believed that the ankle

monitor was removed on March 1 and put back on appellant’s ankle on March 7.

      When viewed in the light most favorable to the decision to revoke, the trial

court’s determination that appellant violated a condition of his community

supervision by tampering with his ankle monitor is supported by legally sufficient

evidence. See Cardona, 665 S.W.2d at 493. Accordingly, we conclude that the




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trial court did not abuse its discretion by proceeding with adjudication.

Appellant’s first point of error is overruled.

   B. Punishment

      In his second point of error, appellant contends that the trial court erred in

assessing punishment at fifteen years’ confinement in violation of his rights against

cruel and unusual punishment under the United States and Texas Constitutions

because the sentence is excessive and grossly disproportionate to the offense

committed. See U.S. CONST. amend. VIII, XIV; TEX. CONST. art. I., § 13. The

State argues that appellant failed to preserve his claim for review and, even

assuming it was preserved, appellant’s sentence is not excessive or

disproportionate.

      To preserve error for appellate review, a party must present a timely

objection to the trial court, state the specific grounds for the objection, and obtain a

ruling. TEX. R. APP. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 139 (Tex. Crim.

App. 2000) (en banc); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston

[1st Dist.] 1997, pet. ref’d) (holding that claim of grossly disproportionate sentence

violative of Eighth Amendment was forfeited by failure to object). Appellant

made no objection to his sentence at the hearing. Thus, he failed to preserve his

complaint for our review.




                                           7
      However, even absent waiver, we conclude that appellant’s sentence was not

excessive or disproportionate. Appellant was indicted for aggravated assault of a

public servant—a first-degree felony with a punishment range of imprisonment for

life or for any term of not more than 99 years or less than five years and a possible

fine up to $10,000. See TEX. PENAL CODE ANN. §§ 12.32, 22.02(b)(2)(B) (West

2013). Appellant’s fifteen-year sentence and $500 fine are within the statutory

range and well below the statutorily prescribed maximum. Generally, a sentence

within the statutory range of punishment for an offense will not be held cruel or

unusual under the Constitution of either Texas or the United States. Ajisebutu v.

State, 236 S.W.3d 309, 314 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)

(citing Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983)).

      Although acknowledging that his sentence is within the permissible range of

punishment, he nevertheless argues that it is disproportionate because he did not

violate any other condition of his community supervision. Appellant’s argument is

misplaced. In Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011 (1983), the

United States Supreme Court set forth three objective criteria for appellate courts

analyzing proportionality claims: “(i) the gravity of the offense and the harshness

of the penalty; (ii) the sentences imposed on other criminals in the same

jurisdiction; and (iii) the sentences imposed for commission of the same crime in

other jurisdictions.”   Only upon a determination that a sentence is grossly

                                         8
disproportionate to the offense does an appellate court consider the remaining two

factors. Id.; Ajisebutu, 236 S.W.3d at 313.

      The fact that appellant was alleged to have violated only one of his

conditions of community supervision has no bearing on the proportionality

analysis because we look to the gravity of the underlying offense, not the violation

of community supervision. See Buerger v. State, 60 S.W.3d 358, 365–66 (Tex.

App.—Houston [1st Dist.] 2001, pet. ref’d) (defendant’s fifteen-year sentence

rested upon adjudication of guilt for crime alleged, not his violation of community

supervision requirements that led to revocation of deferred adjudication); see also

Knight v. State, No. 14–02–00615–CR, 2003 WL 1988555, at *2 (Tex. App.—

Houston [14th Dist.] May 1, 2003, pet. ref’d) (not designated for publication)

(addressing constitutionality of appellant’s twenty-five-year sentence based on

offense of aggravated sexual assault of child, not the defendant’s violation of

community supervision requirements that led to revocation of deferred

adjudication).

      Appellant’s fifteen-year sentence and $500 fine clearly fall within the

permissible range for the charged offense, and are well below the statutorily

prescribed maximum. Because appellant has not shown that his sentence was

grossly disproportionate, we do not consider the remaining two factors. See Solem,




                                         9
463 U.S. at 292; Ajisebutu, 236 S.W.3d at 313. Appellant’s second point of error

is overruled.

                                   Conclusion

      We affirm the trial court’s judgment.




                                              Jim Sharp
                                              Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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