      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-03-00118-CR



                                     Mark Atchison, Appellant

                                                   v.

                                   The State of Texas, Appellee




 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 99-691-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



                                            OPINION


                Appellant Mark Atchison was indicted for intentionally or knowingly causing serious

bodily injury to a child based on the death by shaking of his four-month-old daughter. Pursuant to

a plea bargain agreement, he pleaded guilty to the lesser included offense of reckless injury to a child

and was placed on deferred adjudication community supervision for six years. Tex. Pen. Code Ann.

§ 22.04(a), (e) (West 2003). Three years later, the State filed a motion to adjudicate alleging several

violations of the conditions of supervision. At the adjudication hearing, appellant pleaded true to

two of the alleged violations and not true to the others. After receiving evidence, the court found

all the alleged violations to be true, adjudicated appellant guilty, and imposed a twenty-year prison

sentence.
               Appellant brings forward eleven issues or points of error by which he urges that the

evidence does not support the court’s decision to adjudicate and that the sentence is excessive. Most

of these points are not properly before us, and the others are without merit. Therefore, we will affirm

the judgment of conviction.

               In points of error one through seven, appellant contends the evidence does not support

the court’s findings that he violated the conditions of supervision.1 It has been the consistent holding

of the court of criminal appeals, however, that the deferred adjudication statute does not permit an

appeal from the decision to proceed to adjudication.2 Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim.

App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992); Williams v. State,

592 S.W.2d 931, 932 (Tex. Crim. App. 1979). In Williams, the court specifically held that a

defendant could not challenge the sufficiency of the evidence to support the trial court’s findings.

Williams, 592 S.W.2d at 932.

               Appellant argues that these and other opinions to the same effect have misconstrued

article 42.12, section 5(b). He asserts that, properly understood, section 5(b) merely prohibits an

appeal from the decision granting deferred adjudication.3 He urges that a defendant whose deferred


   1
      The court found that appellant failed to report to his probation officer, permit home visits by
the probation officer, work faithfully at suitable employment, perform community service restitution,
and pay various fees.
   2
      The statute provides that when it is alleged that a defendant has violated the conditions of
deferred adjudication supervision, he 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. No appeal may be
taken from this determination.” Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2003).
   3
      Appellant’s construction of section 5(b) would create a conflict with code of criminal
procedure article 44.01(j), which has been held to permit an appeal from a deferred adjudication
order. Tex. Code Crim. Proc. Ann. art. 44.01(j) (West Supp. 2003); Dillehey v. State, 815 S.W.2d
623, 626 (Tex. Crim. App. 1991).

                                                   2
adjudication probation is revoked has the same right of appellate review that is afforded a defendant

whose regular probation is revoked. Even if we were persuaded by appellant’s argument, which we

are not, we would be bound to follow the rulings of the court of criminal appeals cited above.4

Points of error one through seven present nothing for review.

               Appellant also seeks to challenge the decision to adjudicate in his eleventh point of

error. He contends the decision was an abuse of the district court’s discretion because the alleged

violations were “trivial” and because “alternative penalties were available.” It has been held,

however, that the “decision to proceed with an adjudication of guilt is one of absolute discretion and

[is] not reviewable.” Williams, 592 S.W.2d at 932-33. Once again, the point of error presents

nothing for review.

               In point of error nine, appellant asserts that the district court denied him due process

and due course of law by adjudicating him guilty and imposing the maximum punishment of twenty

years’ imprisonment. He makes several arguments in support of these assertions, none of which

survives close scrutiny.

               First, he contends the court revoked his supervision for a violation that was not

alleged in the motion to adjudicate. He refers us to this comment by the court at the conclusion of

the hearing: “I believe based on what I’ve heard here today this afternoon that, to put it in plain

English, Mr. Atchison was playing games with the probation department as far as his residence and

where he was. I think he was intentionally making it difficult, if not impossible, to be tracked at any

given moment.” Contrary to appellant’s argument, the court’s comment was pertinent to the State’s


  4
     Moreover, appellant would still lose on the merits. A plea of true to any one alleged violation
is sufficient to support a revocation of supervision. Rincon v. State, 615 S.W.2d 746, 747 (Tex.
Crim. App. 1981); Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979).

                                                  3
allegation that appellant failed to permit home visits by his probation officer. And in any event, the

court found all of the alleged violations to be true, and any one of them would support the decision

to adjudicate. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979).

                Next, appellant urges that the court denied him due process by refusing to consider

the full range of punishment and by imposing a predetermined sentence. See McClenan v. State, 661

S.W.2d 108, 110 (Tex. Crim. App. 1983). To support his allegation, appellant refers us to testimony

by the probation officer who reviewed appellant’s file after the State filed its motion to adjudicate.

The officer testified that he originally recommended to the court that appellant be placed on ninety

days’ electronic monitoring, but that he changed his mind after further consideration when the court

set the matter for a hearing. We find no basis in this testimony for a finding that the court had

predetermined appellant’s sentence.

                Appellant also argues that the district court’s punishment decision was

unconstitutionally “reflexive.” See United States v. Tyler, 605 F.2d 851, 853 (5th Cir. 1979)

(fundamentally unfair to revoke based on minor violations government failed to allege in previous

motion to revoke); United States v. Reed, 573 F.2d 1020, 1024 (8th Cir. 1978) (“decision to revoke

probation should not merely be a reflexive reaction to an accumulation of technical violations”). The

only factual support appellant cites in support of this contention is the trial court’s remark that “this

case bothered me three years ago when it came to me on the plea bargain agreement.” That the court

may have had reservations about the original plea bargain does not, in itself, demonstrate that the

decision to adjudicate or the decision to impose a twenty-year sentence was an unthinking,

unconsidered “reflex,” or that the court acted on the basis of information it had previously chosen

to overlook.


                                                   4
               Finally, appellant contends that “because the trial court had other available

alternatives to imposing the [twenty-year] sentence, [the appellate court] can infer a spirit of

vindictiveness against Appellant.” He cites North Carolina v. Pearce, 395 U.S. 711 (1969), a case

that is not on point.5 More on point is the opinion in Black v. Romano, also cited by appellant, in

which the court held that due process does not require a court to indicate on the record that it

considered alternatives to incarceration before revoking probation. 471 U.S. 606, 616 (1985). We

decline to infer vindictiveness or to find a due process violation simply because the trial court chose

to impose the maximum punishment following adjudication. Point of error nine is overruled.

               Appellant’s eighth point of error is that the court’s decision to impose a twenty-year

sentence was an abuse of discretion. He argues that the violations proved by the State were too

insignificant to warrant the maximum sentence. He states, “For the trial court to leap from approval

of a six-year deferred adjudication probation to the maximum sentence was arbitrary and

unreasonable in light of the nature of the alleged violations.” This argument confuses the decision

to adjudicate, which was based on the violations of supervision, with the punishment decision. The

twenty-year sentence was not imposed as punishment for the supervisory violations, but as

punishment for the second-degree felony to which appellant pleaded guilty and for which he was

convicted. Point of error eight is overruled.

               Finally, appellant contends the twenty-year sentence is excessive and disproportionate

under article I, section 13 of the Texas Constitution, which prohibits “cruel or unusual punishment.”



    5
        In Pearce, the court held that “vindictiveness against a defendant for having successfully
attacked his first conviction must play no part in the sentence he receives after a new trial.” To
insure against such vindictiveness, a court’s discretion to impose a more severe sentence after a
retrial is strictly limited. North Carolina v. Pearce, 395 U.S. 711, 725 (1969).

                                                  5
Tex. Const. art. I, § 13. He urges that the sentence is “cruel” because it is disproportionate to the

violations of supervision proved by the State, and is “unusual” because the trial court had other

punishment alternatives. Appellant cites no authority holding that article I, section 13 has a

guarantee against disproportionate sentences. Even if we were to perform a proportionality analysis,

the correct question would be whether the twenty-year sentence was warranted by the crime for

which appellant was convicted, and not whether it was warranted by the supervisory violations

proved at the adjudication hearing. Sullivan v. State, 975 S.W.2d 755, 756 (Tex. App.—Corpus

Christi 1998, no pet.); Fielding v. State, 719 S.W.2d 361, 363 (Tex. App.—Dallas 1986, pet. ref’d).

We find nothing disproportionate in a twenty-year sentence for shaking a four-month-old infant to

death. Article I, section 13 is not violated when, as here, the punishment assessed is within the limits

prescribed by statute. Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972). Point of error

ten is overruled.

               The judgment of conviction is affirmed.




                                               __________________________________________

                                               David Puryear, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: November 13, 2003

Publish




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