                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-13-00006-CR


                           DAVID HERNANDEZ, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 46th District Court
                                   Wilbarger County, Texas
                  Trial Court No. 10,179, Honorable Stuart Messer, Presiding

                                     August 21, 2014

                             MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant David Hernandez appeals the trial court’s revocation of his community

supervision and judgment sentencing him to ten years’ confinement in prison for

indecency with a child.1 Finding no abuse of discretion by the trial court, we will affirm

the judgment.




      1
          TEX. PENAL CODE ANN. § 21.11 (West 2011).
                                       Background


      Appellant was convicted for indecency with a child in September 2002, and

sentenced to ten years’ confinement in prison.         Execution of the sentence was

suspended in favor of appellant’s placement on community supervision.


      In a July 2006 motion, the State sought revocation of appellant’s community

supervision on the ground he failed to complete sex offender counseling as ordered.

The motion was denied. A subsequent motion to revoke was filed in January 2010,

alleging a similar ground. The motion was granted and appellant was sentenced to ten

years’ confinement in prison in March 2010. Within six months of sentencing, the trial

court conducted a “shock hearing,”2 and placed appellant under an order of community

supervision for ten years.


      Through a May 2012 multi-ground motion, the State again moved to revoke

appellant’s community supervision. Among the grounds, the State asserted appellant

was found at a location within a distance of 1,000 feet of a school, in violation of a

condition of his community supervision order. It was not disputed that appellant did not

request permission of his community supervision officer before going within that

distance of a school. At the conclusion of the revocation hearing, the trial court found




      2
        See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 6 (West Supp. 2014) (under
circumstances described, trial court’s jurisdiction in a felony case continues for 180 days
from the date execution of sentence of imprisonment begins, allowing court to suspend
further execution of sentence). “This provision, commonly referred to as ‘shock
probation,’ allows the trial court to suspend further imposition of sentence after the
convicted party has experienced the ‘shock’ of actual incarceration.” Sutton v. State,
No. 07-08-0040-CR, No. 07-08-0041-CR, 2009 Tex. App. LEXIS 254, at *1-2 (Tex.
App.—Amarillo Jan. 14, 2009, no pet.) (mem. op., not designated for publication).

                                            2
the allegation true. It revoked appellant’s community supervision and sentenced him to

ten years’ confinement in prison. Appellant timely appealed.


                                          Analysis


        The sole question on review of an order revoking community supervision is

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

(Tex.   Crim.   App.   2006)   (citing   Cardona     v.   State,   665   S.W.2d   492,   493

(Tex.Crim.App.1984)).     A trial court does not abuse its discretion if some evidence

supports its decision. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). In

determining the sufficiency of the evidence to sustain a revocation order, we view the

evidence in the light most favorable to the ruling of the trial court. Jones v. State, 589

S.W.2d 419, 421 (Tex. Crim. App. 1979). It is the burden of the State to prove by a

preponderance of the evidence that the defendant violated a condition of community

supervision as alleged in its motion to revoke. Cobb v. State, 851 S.W.2d 871, 874

(Tex. Crim. App. 1993). The burden is sustained if the greater weight of the credible

evidence creates a reasonable belief that the defendant violated a condition of

community supervision. Rickels, 202 S.W.3d at 763-64. Proof of even one violation will

support an order revoking community supervision. Leach v. State, 170 S.W.3d 669,

672 (Tex. App.—Fort Worth 2005, pet. refused). The trial judge is the exclusive trier of

fact and judge of credibility of the witnesses and the weight given their testimony. St.

George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).


        Through his first issue, appellant argues the trial court abused its discretion by

assessing “an unreasonable sentence under the circumstances of this case.”



                                             3
         Indecency with a child is a second degree felony3 carrying a range of punishment

by confinement in prison of two to twenty years.4                The jury in 2002 assessed

punishment at ten years’ confinement.              When the trial court revoked appellant’s

community supervision it could rightly dispose of the case as if there had been no

community supervision. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23(a) (West Supp.

2014).        Appellant’s sentence falls within the range prescribed by a valid statute.

“Generally, punishment assessed within the statutory limits is not excessive, cruel, or

unusual punishment.” Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth

2005, no pet.).


         If    appellant’s   issue   raises   an   assertion   his   punishment   was   grossly

disproportionate, under Eighth Amendment analysis, to the offense for which he was

convicted, we cannot agree with the assertion.


         “[T]he Eighth Amendment has been read to preclude a sentence that is greatly

disproportionate to the offense, because such sentences are cruel and unusual.”

McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992) (internal quotation marks

omitted). Thus, even a sentence within the statutorily prescribed range may violate the

Eighth Amendment. The Eighth Amendment proportionality analysis begins with an

objective comparison of the gravity of the offense with the severity of the sentence.

McGruder, 954 F.2d at 316; Winchester v. State, 246 S.W.3d 386, 389 (Tex. App.—

Amarillo 2008, pet. refused); Dale, 170 S.W.3d at 799. Only if we are able to infer that

the sentence is grossly disproportionate to the offense will we consider the two

         3
              TEX. PENAL CODE ANN. § 21.11(a)(1), (d) (West 2011).
         4
             TEX. PENAL CODE ANN. § 12.33 (West 2011).

                                                   4
remaining factors set out in Solem v. Helm.5 McGruder, 954 F.2d at 316; Winchester,

246 S.W.3d at 389.


       The Eighth Amendment does not require strict proportionality between the crime

and   the   sentence;   rather,   it   forbids       extreme   sentences   that   are   “grossly

disproportionate” to the crime. Ewing v. California, 538 U.S. 11, 23, 123 S.Ct. 1179,

155 L.Ed.2d 108 (2003).       The precise contours of the “grossly disproportionate”

standard are unclear, but it applies in only “exceedingly rare” and “extreme” cases.

Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). “The

gross disproportionality principle reserves a constitutional violation for only the

extraordinary case.” Id. at 77.


       In his brief, appellant acknowledges that a ten-year sentence for indecency with

a child is “prima facie reasonable.”       Appellant argues, however, the evidence he

“struggled diligently to comply with the ‘extensive’ requirements [of community

supervision]” militates against the sentence imposed. We have reviewed the record,

including the evidence that, since his initial placement on community supervision in

2002, appellant has satisfied many of the terms of community supervision. But the

comparison we must address is that between the gravity of his offense of indecency

with a child and the severity of a sentence of ten years’ imprisonment. The record

shows the indecency was appellant’s touching the genitals of a female child younger

       5
          In Solem, the Court established three objective criteria for a reviewing court to
apply in analyzing a proportionality claim: “(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.” Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637
(1983).

                                                 5
than 17 years old, and that it occurred in 2001. Notations in the record indicate at the

time of the offense appellant was over the age of 40. Although it also recommended

community supervision, the jury assessed a ten-year sentence after finding appellant

guilty of the offense in 2002. When sentencing appellant on this occasion, the trial court

noted shock probation had been applied after the 2010 revocation, and rhetorically

questioned the benefit of another “intermediate sanction.”         The evidence to which

appellant points does not demonstrate that the ten-year sentence imposed is grossly

disproportionate to his offense.    See Speckman v. State, Nos. 07-13-0232-CR, 13-

0233-CR, 2014 Tex. App. LEXIS 5615 (Tex. App.—Amarillo May 23, 2014, no pet.)

(similar analysis in sexual assault case). Appellant’s first issue is overruled.


       By his second issue, appellant asserts the evidence was insufficient to support

the trial court’s finding that he violated a condition of community supervision by going

within a distance of 1,000 feet of a school.


       Condition thirty-six of appellant’s order of community supervision stated:


       Do not reside, go in, go on, or go within a distance, of 1000 feet of a
       premises where children commonly gather, including a school, day-care
       facility, playground, public or private youth center, public swimming pool or
       video arcade facility, unless all living arrangements or other exceptions
       have been reported to and approved by the supervision officer.
       Evidence showed that on January 20, 2012, police located appellant at a

residence in Vernon. The community supervision officer overseeing appellant’s case




                                               6
testified that he measured distances from the residence. He determined the property

lies 324 feet from the Vernon Middle School.6


       Appellant’s “care provider” testified for appellant. She occupies the residence,

and explained the reasons for appellant’s presence there. But as noted, appellant did

not request approval from his supervising officer.


       Applying the law that governs our review of appellant’s issues, we find sufficient

evidence supports the finding of the trial court that appellant violated condition thirty-six

of his order of community supervision. He was found within 1,000 feet of Vernon Middle

School. We must conclude, therefore, the trial court did not abuse its discretion in

revoking appellant’s order of community supervision.          Appellant’s second issue is

overruled.


                                        Conclusion


       Having overruled appellant’s two issues, we affirm the judgment of the trial court.




                                                  James T. Campbell
                                                      Justice



Do not publish.




       6
        He also testified the residence lies 706 feet from a park. The park contains a
playground.

                                             7
