                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00438-CR


Devin Marquette Lynch                     §   From the 371st District Court

                                          §   of Tarrant County (0785798D)

v.                                        §   February 28, 2013

                                          §   Opinion by Justice Dauphinot

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       By_________________________________
                                         Justice Lee Ann Dauphinot
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00438-CR


DEVIN MARQUETTE LYNCH                                              APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                        MEMORANDUM OPINION1

                                    ----------

      Appellant Devin Marquette Lynch appeals from the trial court’s revocation

of his community supervision for felony driving while intoxicated (DWI).2 In his

sole issue, he contends that the trial court abused its discretion by imposing a

sentence, seven years’ confinement, that was grossly disproportionate to his

community supervision violations. Because Appellant pled true to two violations,
      1
      See Tex. R. App. P. 47.4.
      2
      See Tex. Penal Code Ann. § 49.09(b)(2) (West Supp. 2012).


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his sentence was within the legislatively created range of confinement, two to ten

years,3 for his offense, and there is no evidence that the sentence is grossly

disproportionate to the offense, we hold that the trial court did not abuse its

discretion by sentencing Appellant to seven years’ confinement. We affirm the

trial court’s judgment.

      On November 28, 2001, Appellant pled guilty to the third-degree felony

offense of DWI. He was convicted and sentenced to ten years’ confinement and

ordered to pay a fine of $1,250. Imposition of the confinement portion of his

sentence was suspended, he was placed on community supervision for ten

years, and, as a condition of his community supervision, he was confined in the

Tarrant County Jail for a period of 120 days, which was to be served through

labor detail. Almost ten years later, on August 5, 2011, the State filed a petition

to revoke Appellant’s community supervision, alleging that he had operated a

motor vehicle without having a valid Texas driver’s license and that he had driven

a vehicle without an end ignition interlock device on or about July 19, 2011.

Appellant pled true to the allegations contained in the State’s petition, and after a

hearing on punishment, the trial court sentenced him to seven years’

confinement and gave him credit for the time he had served previously.

Appellant filed a motion for new trial raising the issue of disproportionality of the

sentence in relation to the violations (as opposed to the offense for which he was


      3
       See id. § 12.34(a) (West 2011).


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sentenced),4 and the trial court denied Appellant’s motion for new trial in a written

order.

         We review an order revoking community supervision under an abuse of

discretion standard.5 In a revocation proceeding, the State must prove by a

preponderance of the evidence that the defendant violated the terms and

conditions of community supervision.6 The trial court is the sole judge of the

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

review the evidence in the light most favorable to the trial court’s ruling. 7 If the

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

revoking the community supervision.8

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

violations of the conditions of community supervision is sufficient to support a




         4
       See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.) (explaining that a
grossly disproportionate sentence relative to the convicted offense violates the
Eighth Amendment), cert. denied, 506 U.S. 849 (1992).
         5
       Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v.
State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).
         6
         Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).
         7
       Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex.
Crim. App. [Panel Op.] 1981).
         8
         Cardona, 665 S.W.2d at 493–94.


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revocation order.9 A plea of true, standing alone, is sufficient to support the

revocation of community supervision.10

      In his motion for new trial, Appellant concedes that the trial court acted

within its discretion in sentencing him and further appears to concede that any

sentence within the statutory range of punishment lies within the trial court’s

discretion. Specifically, he states,

      The Court could have exercised its discretion and imposed a
      sentence that was more consistent with the fair and equal
      administration of justice. Society gains no benefit in incarcerating a
      Defendant that has been sober for many years because he drove a
      vehicle that did not have an installed guardian interlock device.

      Appellant offered no evidence of disproportionality, either at the hearing on

the State’s motion to revoke or in his motion for new trial. He does not complain

that he was denied the opportunity to offer such evidence when the trial court

overruled his motion without a hearing. His argument appears to be that it is

simply unfair to sentence a person to seven years’ incarceration when he has

stopped drinking and when he has come within months of completing a ten-year

term of community supervision.

      Because Appellant pled true to the State’s allegations, the sentence was

within the statutory range of punishment, and Appellant has offered no evidence

of disproportionality, we hold that the trial court did not abuse its discretion by

      9
      Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980);
Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980).
      10
          Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979).


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imposing the seven-year sentence on Appellant. We overrule his sole point and

affirm the trial court’s judgment.




                                               LEE ANN DAUPHINOT
                                               JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 28, 2013




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