                         NUMBER 13-18-00154-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


RONALD MCGAUGHEY,                                                          Appellant,

                                        v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 105th District Court
                         of Kleberg County, Texas.


                        MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
            Memorandum Opinion by Justice Benavides

      Appellant Ronald McGaughey was indicted for one count of impersonating a public

servant and one count of exploiting the elderly or disabled, both third-degree felonies

enhanced pursuant to the habitual felony offender statute. See TEX. PENAL CODE ANN. §§

12.42, 32.11, 32.53. He pleaded guilty pursuant to a plea agreement, and the trial court

placed him on deferred-adjudication community supervision for a period of eight years.
Thereafter, the trial court revoked McGaughey’s community supervision and sentenced

him to twenty-five years’ imprisonment. By two issues, McGaughey argues the evidence

is insufficient to show he violated counts two and three of the State’s motion to revoke his

community supervision and his sentence is excessive and disproportionate. We affirm.

                                   I.      BACKGROUND

       The State filed a motion to revoke McGaughey’s community supervision on

January 10, 2018, alleging McGaughey violated conditions of his community supervision

by submitting positive drug tests for cocaine and alcohol, among other violations.

       At the motion to revoke hearing on September 16, 2018, McGaughey pleaded true

to count one of the revocation, and he pleaded not true to counts two through nine.

Community Supervision Corrections Officer and Custodian of Records Kristen Jamison

testified on behalf of the State that McGaughey tested positive for cocaine and alcohol on

at least two occasions as set forth in counts two and three of the State’s motion to revoke.

Further, she testified that McGaughey reported that he first used alcohol at the age of

twenty, used it occasionally, and the date of his last use was 2011. According to Officer

Jamison, McGaughey reported that he first used cocaine at the age of twenty and last

used it in 1984. McGaughey testified that he did not use cocaine or alcohol since then,

and he had “no idea how that [positive] test result came up . . . .”

       The trial court found McGaughey violated counts one, two, and three of the State’s

motion to revoke, revoked his community supervision, and sentenced him to twenty-five

years’ confinement. This appeal followed.

                                    II.    SUFFICIENCY

       By his first issue, McGaughey argues the evidence is insufficient to establish by a



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preponderance of evidence that he violated counts two and three of the State’s motion to

revoke.

A.    Standard of Review and Applicable Law

      We review a trial court’s revocation of community supervision under an abuse of

discretion standard. See Belt v. State, 127 S.W.3d 277, 280 (Tex. App.—Fort Worth

2004, no pet.). A trial court abuses its discretion if it revokes community supervision on

grounds that are not alleged in the State’s motion to revoke. Caddell v. State, 605 S.W.2d

275, 277 (Tex. Crim. App. 1980). An order revoking community supervision must be

supported by a preponderance of the evidence. See id. In other words, the burden of

proof is on the State to establish that the greater weight of the credible evidence creates

a reasonable belief that the defendant has violated a condition of his community

supervision. See Maxey v. State, 49 S.W.3d 582, 584 (Tex. App.—Waco 2001, pet. ref’d).

We view the evidence presented at the revocation hearing in the light most favorable to

the trial court’s decision. Liggett v. State, 998 S.W.2d 733, 736 (Tex. App.—Beaumont

1999, no pet.).

      When a trial court fails to make specific findings of fact and conclusions of law, it

is presumed that the court made the necessary findings to support its decision. Ice v.

State, 914 S.W.2d 694, 695 (Tex. App.—Fort Worth 1996, no pet.). We do not engage

in our own fact finding, but rather must review the entire record to determine whether

there are any facts that lend support for any theory upon which the trial court’s decision

can be sustained. Id. at 696. If the implied or actual finding is supported by the record,

it must be sustained. Id. Proof of a violation of one condition of community supervision

is sufficient to support the trial court’s decision to revoke. Garcia v. State, 387 S.W.3d



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20, 26 (Tex. Crim. App. 2012).

B.      Discussion

        The State’s motion to revoke alleged that McGaughey violated his community

supervision by testing positive in a urinalysis for cocaine and alcohol. Officer Jamison

testified that on June 2, 2017 and July 18, 2017, McGaughey was given a urinalysis, and

he tested positive for cocaine and alcohol. She further testified that he did not have an

explanation as to the positive result. The only evidence controverting this testimony was

from McGaughey himself. The trial judge, as the sole judge of the credibility of the

witnesses and weight to be given their testimony, did not abuse his discretion by crediting

Officer Jamison’s testimony and disbelieving McGaughey’s testimony. 1 See Cherry v.

State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet. ref’d) (holding that the

probation officer’s testimony was sufficient evidence on which to find a violation of a term

of appellant’s community supervision). Viewed in the light most favorable to the trial

court’s ruling, we conclude the State met its burden of proving by a preponderance of the

evidence that McGaughey violated a term of his deferred adjudication community

supervision as alleged in the State’s motion. See Garcia, 387 S.W.3d at 26. Accordingly,

the trial court acted within its discretion in concluding that McGaughey violated Counts

Two and Three as alleged in the State’s motion to revoke. We overrule McGaughey’s

first issue.

                                          III.    SENTENCING

        Next, McGaughey argues that his sentence is excessive and disproportionate


        1 Nonetheless, McGaughey pleaded true to Count One of the State’s motion to revoke. A plea of

true alone is sufficient to support revocation of probation. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim.
App. 1979); see Burns v. State, 835 S.W.2d 733, 735–36 (Tex. App.—Corpus Christi–Edinburg 1992, pet.
ref’d).

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because the Eighth Amendment forbids cruel and unusual punishment. See U.S. CONST.

amend. VIII. The State asserts McGaughey failed to preserve error on this issue.

         To preserve a complaint for appellate review that a sentence is grossly

disproportionate and constitutes cruel and unusual punishment, a defendant must present

to the trial court a timely request, objection, or motion stating the specific grounds for the

ruling desired. See TEX. R. APP. P. 33.1(a); Wynn v. State, 219 S.W.3d 54, 61 (Tex.

App.—Houston [1st Dist.] 2006, no pet.) (holding that a defendant’s failure to object to his

life sentence of imprisonment as cruel and unusual punishment waived error); Solis v.

State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (holding a

defendant could not assert cruel and unusual punishment for the first time on appeal).

         After the trial court announced its sentence at the punishment hearing,

McGaughey failed to object based on a violation of his Eighth Amendment right.

Accordingly, we hold that he has failed to preserve his Eighth Amendment complaint for

review. See TEX. R. APP. P. 33.1(a). Even if McGaughey had preserved error for our

review, he was convicted of one count of impersonating a public servant and one count

of exploiting the elderly or disabled, third-degree felonies enhanced as a habitual felony

offender, which are punishable by imprisonment for life or for any term of not more than

ninety-nine years or less than twenty-five years.     See TEX. PENAL CODE ANN. §§ 12.42,

32.11, 32.53. Therefore, his sentence of twenty-five years is within the punishment range

and the minimum sentence he could receive. Trevino v. State, 174 S.W.3d 925, 927

(Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d) (holding punishment within the

statutory range is not cruel and unusual). We overrule McGaughey’s second point of

error.



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                                  IV.    CONCLUSION

       Having overruled McGaughey’s issues, we affirm the trial court’s judgment.



                                                      GINA M. BENAVIDES,
                                                      Justice


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

Delivered and filed the
8th day of August, 2019.




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