      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00452-CR




                                   Alan C. Brown, Appellant

                                                v.

                                  The State of Texas, Appellee



 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
   NO. 97-830-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                           MEMORANDUM OPINION


               On April 9, 1998, appellant Alan C. Brown pleaded guilty to four counts of

aggravated assault of a public servant. See Tex. Penal Code Ann. § 22.02 (West Supp. 2008). The

trial court deferred adjudication of guilt and placed appellant on community supervision for

ten years. On February 12, 2008, the State filed a motion to adjudicate, which was later amended

to add additional allegations. Following a hearing on May 21, 2008, the trial court adjudged

appellant guilty and sentenced him to fifteen years in prison. In two points of error, appellant

contends that the evidence is insufficient to support the decision to adjudicate and that the

punishment assessed is grossly disproportionate. We affirm.

               The incident on which this conviction is based occurred on September 28, 1997. That

night, a Round Rock police officer was dispatched to an apartment complex to investigate the report

of a prowler. The officer encountered appellant, who was a resident of the complex. A struggle
broke out, and appellant pushed the officer down a flight of stairs. Several other officers were

dispatched to assist the first officer, and they attempted to arrest appellant in his apartment.

Appellant resisted, and it eventually took seven officers to subdue appellant and place him under

arrest. Six of the officers were later treated at a hospital, and one of them suffered a shoulder injury

that caused him to miss several weeks of work

                The amended motion to adjudicate alleged that appellant violated the terms of his

supervision by obstructing, resisting, and assaulting three Tulsa, Oklahoma, police officers on

September 6, 2007.1 Tulsa officer Steven Sanders testified that on the night in question, he stopped

an automobile being driven by appellant because the rear license plate was not illuminated as

required by law. This was a fine-only offense, and the officer intended to issue a citation. Sanders

testified that when he told appellant the reason he had been stopped, appellant asked if he could get

out of the car to see for himself. Sanders told appellant that as a matter of department policy, he had

to remain in his car until the ticket was issued and the stop was over.

                Sanders testified that he could see that appellant had his driver’s license and insurance

card in his hand. Nevertheless, appellant refused to give the documents to the officer and continued

to insist that he be allowed to see the violation for himself. Sanders said that he told appellant, “He

can give me the driver’s license and insurance, I can do my check, issue him the citation, we can be

all gone,” and “[T]he only other alternative I have is that he can go to jail for obstruction.” Despite

this warning, appellant continued to refuse to cooperate with the officer. Sanders testified that he




   1
       The testimony reflects that the date of the incident was actually November 6, 2007.

                                                   2
then told appellant, “Go ahead and get out of the car. You’re going to jail . . . .” Appellant refused

to get out of the car, so Sanders opened the driver’s door and ordered him out.

               Sanders testified that appellant got out of the car, clinched his fists, and assumed a

“fighting stance.” Sanders pushed appellant against the car to restrain him. Appellant told Sanders,

“Take your hands off me or I’m going to kick your ass,” and he began to push away from the car.

Sanders’s partner, Brian Booth, came to Sanders’s aid, but appellant continued to physically resist

and verbally threaten the officers. Sanders testified that he pulled appellant’s feet from under him

and he fell to the ground, but appellant regained his footing. By this time, four backup officers had

arrived. Appellant continued to physically resist the officers’ attempts to restrain and handcuff him,

and he tried to strike the officers with his hand or fist. Eventually, the six officers succeeded in

handcuffing appellant and effecting his arrest.

               Appellant and his brother, who was a passenger in the car, also testified at the

adjudication hearing. They said that when appellant told Sanders that he would like to see for

himself that the license plate was not illuminated, the officer became angry, began to curse, and told

appellant that he was going to jail. According to appellant, Sanders opened the car door and pulled

him from the vehicle. Appellant testified that he obeyed all of Sanders’s orders, but the officers

nevertheless forced him to the ground, handcuffed him, and kicked his head and face.

               The State called Booth as a rebuttal witness. His description of the events of

November 6 corresponded with Sanders’s testimony.




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               The trial court found that appellant: (1) unlawfully resisted Sanders, an officer

performing his duties, by pulling away, fighting, and attempting to strike the officer;2 (2) unlawfully

resisted Booth in the same manner; (3) obstructed officer Steven Malone, one of the backup officers,

in the discharge of his duties by refusing to follow his commands;3 and (4) assaulted Malone by

pulling away, fighting, and attempting to strike him. In his first point of error, appellant contends

that the evidence is factually insufficient to support these findings.

               The decision to proceed to adjudication of guilt is reviewable in the same manner as

a revocation of ordinary community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b)

(West Supp. 2008). Although appellant’s point is stated as a challenge to the factual sufficiency of

the evidence, he acknowledges in his brief that the factual sufficiency standard of review does not

apply to revocations of community supervision and thus, by extension, does not apply to decisions

to adjudicate. See Davila v. State, 173 S.W.3d 195, 198 (Tex. App.—Corpus Christi 2005, no pet.);

Allbright v. State, 13 S.W.3d 817, 818 (Tex. App.—Fort Worth 2000, pet. ref’d). Instead, we

review the trial court’s decision to adjudicate for an abuse of discretion. See Cardona v. State,

665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The trial court’s decision must be supported by a

preponderance of the evidence. Id. We consider the evidence at the adjudication hearing in the light

most favorable to the court’s ruling. See Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App.



   2
      A person who knowingly resists, by the use of force or threat of violence, an officer in the
performance of his duty is guilty of a misdemeanor. See Okla. Stat. tit. 21, § 268.
   3
     A person who willfully delays or obstructs an officer in the discharge or attempt to discharge
any duty of his office is guilty of a misdemeanor. See Okla. Stat. tit. 21, § 540. “Willfully” implies
a purpose or willingness to commit the act. See id. § 92. “Willfully” is equivalent to “knowingly.”
Fairchild v. State, 998 P.2d 611, 620 (Okla. Crim. App. 1999).

                                                  4
1981); Mauney v. State, 107 S.W.3d 693, 695 (Tex. App.—Austin 2003, no pet.). One ground,

if proven, is sufficient to support the court’s decision. See Moore v. State, 605 S.W.2d 924, 926

(Tex. Crim. App. 1980).

               Appellant urges that the trial court’s decision to proceed to adjudication was an abuse

of its discretion because the evidence shows that he was prevented from complying with the officers’

instructions by their own actions. He asserts that “Sanders went immediately from asking for

identification to ordering Appellant out of the vehicle and attacking him.” Appellant contends that

he complied with Sanders’s orders up to the point when the officer assaulted him. He notes that

neither Sanders nor Booth testified that they attempted to give appellant any instructions or orders

after Sanders shoved appellant against the car and then knocked him to the ground. Appellant points

out that Sanders and Booth had a reason to testify falsely, as there is evidence that there was an

ongoing internal affairs investigation of their actions during this incident. He also notes that there

is evidence that Oklahoma authorities had dismissed a felony assault indictment, and that he was

facing prosecution in that state only for the misdemeanor obstruction and resisting offenses.

               In effect, appellant asks this Court to disregard the testimony of the Oklahoma police

officers and to accept the defensive testimony as true. We must, however, view the evidence

adduced at the hearing in the light most favorable to the trial court’s ruling. The trial court was

entitled to believe Sanders’s testimony, and that testimony is sufficient to establish by a

preponderance of the evidence that Sanders had probable cause to arrest appellant for obstruction

and, as alleged in the motion to adjudicate, appellant resisted Sanders in the performance of his duty




                                                  5
by using force or threatening violence.4 Because only one ground will support the trial court’s

decision to adjudicate, we need not decide if the evidence supports the court’s other findings. Point

of error one is overruled.

               In his second point of error, appellant contends that the fifteen year sentence imposed

by the trial court is unconstitutionally harsh. This was his first conviction. He had complied with

the terms of his community supervision for over nine years before the Oklahoma incident. Appellant

urges that the fifteen year sentence is grossly disproportionate considering the gravity of the offense

and the sentences imposed for similar crimes.

               Appellant did not raise this contention below and thus failed to preserve it for appeal.

See Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, no pet.); Alberto v. State,

100 S.W.3d 528, 530 (Tex. App.—Texarkana 2003, no pet.). Appellant’s argument fails in any case.

A person making an Eighth Amendment disproportionality claim must first show that the

punishment is grossly excessive for the crime committed. Harmelin v. Michigan, 501 U S.957, 1005

(1991) (Kennedy, J., plurality op.). If that threshold showing is made, we then compare the

challenged punishment to punishments imposed for similar crimes in the same jurisdiction and

for the same crime in other jurisdictions. Id. at 1004-05 (citing Solem v. Helm, 463 U.S. 277,

290-92 (1983)).

               Aggravated assault of a police officer is and was in 1997 a first degree felony. See

Tex. Penal Code Ann. § 22.02(b)(2)(B) (West Supp. 2008). A sentence of fifteen years for this




   4
     In Oklahoma, an officer may arrest an offender without warrant for an offense committed in
the officer’s presence. See Okla. Stat. tit. 22, § 196.

                                                  6
offense does not raise an inference of gross disproportionality, even for a first offense. See

Harmelin, 501 U.S. at 1005. Moreover, there is no evidence in the record by which we may compare

the punishment in this case with the punishment assessed for similar crimes in this jurisdiction or

for the same crime in other jurisdictions. Point of error two is overruled.

               The judgment of conviction is affirmed.




                                              __________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: October 14, 2009

Do Not Publish




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