                          NUMBER 13-17-00364-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


THOMAS CLARK,                                                               Appellant,

                                               v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 347th District Court
                         of Nueces County, Texas.


                        MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Benavides

      Appellant Thomas Clark appeals his probation revocation and sentence imposed

by the trial court. By two issues, Clark argues that: (1) the evidence was insufficient to

justify the trial court’s revocation of probation and (2) the trial court’s sentence of

imprisonment was constitutionally disproportionate and excessive. We affirm.
                                   I.     BACKGROUND

         In August 2011, Clark pleaded guilty to eight counts of aggravated sexual assault

of a child, a first-degree felony, and was sentenced to ten years’ deferred adjudication

probation. See TEX. PENAL CODE ANN. § 22.021 (West, Westlaw through 2017 1st C.S.).

       In July 2013, the State filed its first motion to adjudicate probation. The State

alleged: (1) Clark was unable to pay his urinalysis (UA) fee; (2) Clark was discharged

from Hamilton Group Psychology’s sex offender treatment program due to a lack of

progress in January 2013; and (3) Clark was discharged from Family Counseling’s sex

offender treatment program for failing to accept responsibility in June 30, 2013. After

Clark entered a plea of not true, the trial court found the allegations true, continued Clark

on probation and ordered the following sanctions: (1) zero tolerance, (2) thirty days’

confinement in the Nueces County Jail, and (3) to re-enter the sex offender treatment

program.

       In September 2016, the State filed its second motion to revoke probation. In the

second motion, the State alleged that: (1) Clark had failed to pay court costs, a sex

offenders fee, monthly supervision fee, and his UA fee; (2) Clark was discharged from

Grey Matters sex offender treatment program in August 2016; (3) Clark failed to schedule

a polygraph within sixty days of the trial court order; and (4) Clark had access to the

internet on his cellular phone in violation of the terms of his probation. In October, Clark

entered a plea of true to the allegations. The trial court elected to continue him on

probation a second time and ordered the following sanctions: (1) zero tolerance, (2) sixty

days’ confinement in the Nueces County Jail, and (3) ordered him to re-enter the Grey


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Matters sex offender treatment program.

        In February 2017, the State filed its third motion to revoke probation. In the third

motion, the State alleged that: (1) Clark failed to pay court costs, his sex offender fee,

and a monthly supervision fee; and (2) was discharged from the Grey Matters sex

offender treatment program in February 2017.

        The trial court held a hearing regarding the allegations in the State’s motion to

revoke probation. Clark pleaded not true to all allegations. The witnesses who testified

were Jennifer Saenz, the custodian of records for adult probation; Leigh Motes and

Sharon Sanders, the co-owners of Grey Matters, the sex offender treatment program

Clark attended; and Antonio Clark (Antonio), the appellant’s brother.

        Saenz testified based on the probation department’s records. She stated the

department records showed that Clark received $953 from a disability check and $120 in

food stamps. She stated that Clark self-reported paying $349 for rent to Antonio and

$204 in child support. Saenz knew Clark’s attorney was court-appointed and he was

required to pay other costs as a condition of probation, as well as his sex offender

treatment program costs.

        Motes testified that she knew Clark from Hamilton Group Psychology, as well as

Grey Matters.1 Clark was on a zero-tolerance contract2 with Grey Matters, after being


        1    It appears Hamilton Group Psychology became Grey Matters during the term of Clark’s
probation.

        2   The zero tolerance contract contained the following conditions: (1) Clark could have no
excused absence for the first 90 days, including medical appointments that could have been made on other
days; (2) Clark could have no unexcused absences for the first 180 days and could not be late (including
being tardy); (3) the weekly treatment fee was $45.00 and Clark would be turned away from the session if
he did not have the full amount; (4) Clark would complete two homework assignments per month; and (5)
after 90 days, Clark would have an individual session with a provider to assess his progress in the program,
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discharged five prior times. Motes stated Clark knew he had to have the $45.00 fee

available to participate in each session, as well as complete homework assignments due

based on the time he has been involved in their program and conditions of the contract.

        Motes explained that Clark attended nine sessions from December 8, 2016 to

February 22, 2017 when he was discharged from the program. In December 2016, Clark

attended on the 8th and brought homework,3 the 15th and brought homework, the 22nd

and brought homework, and the 29th and had no homework. Motes agreed that Clark

was able to pay each time and complied with the homework requirement for the month of

December. In January 2017, Clark attended on the 5th with homework, but it was not

acceptable, the 12th with homework, on the 19th with no homework, and on the 26th with

no money for the session fee and no homework. Motes stated that Clark was allowed to

stay on the 26th even though he did not bring the required funds. She also explained

that even though Clark brought homework on the 5th, it was not acceptable, but they

made corrections to it and Clark was asked to complete the corrections at home and re-

present it to the group. Motes stated that Clark never brought the January 5th homework

back to the group session.            In February 2017, Clark attended on the 2nd with no

homework, but paid a $90 fee for that session and the session on January 26th. On the

9th, Clark was absent, but later brought an excuse from his doctor and was given credit,

even though the absence was a violation of the contract. On the 16th, Clark showed

without the fees again and was asked to leave. Motes filed a report with probation and



costing $90.00. Any violation would be referred to the probation department. Clark initialed the conditions
and signed the contract on December 8, 2016.

        3   Clark brought the required fees to participate unless otherwise noted.
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discharged Clark from the program for committing multiple violations of the contract.4

        Motes testified that Clark was not progressing at a normal pace due to his lack of

homework. Motes explained that the program consists of eight modules and in over six

years, Clark was working in module three. Although Clark argued the lack of progress

was due to his low intellectual state,5 Motes stated that Clark could participate in the

sessions when he wanted to and could complete the homework. Even though Grey

Matters could adjust the program and make allowances for low intellectual functioning,

Motes believed that Clark never showed or expressed a need for the accommodations.

        Motes also explained to the court that people can actively participate in sessions

without the homework, class can be made up later in the week if someone does not have

the fees available, and if someone came weekly and participated, the eight modules could

be completed in two and a half years. She stated that after giving Clark chances by

letting prior violations go, she dismissed him for violation of the homework requirement,

violation of the absence conditions, and lack of fees.6

        Sanders testified that she completed the testing of Clark, but IQ is not determined

based on one test. Sanders stated that treatment is based on her testing and adjusted

as needed due to the results.              She felt that although Clark tested at “borderline



        4 Although Clark included the $90 individual session fee in determining the amount necessary per
month, Clark had not been ordered to participate in an individual session at the time he was discharged.
Motes stated that it was required after the first 90 days, and then it would be required as necessary
throughout the duration of the program.

        5 Clark tested at as “borderline intellectual functioning,” meaning he is “below low average but

above. . . what the public would call mental retardation” according to Sanders’s IQ testing.

        6     During the hearing, the State agreed to not consider the other lacking fees as part of the
revocation.
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intellectual functioning,” he should have been able to complete the modules easily.

Sanders also agreed that she was not in the treatment room during sessions.

       Antonio testified that Clark lives with him and his family. He did agree that he

asked Clark for rent: $300 in December, $400 in January, and $300 in February for bills

and other costs. Antonio stated that Clark lives on a limited income and receives a

disability check and food stamps. Antonio knew Clark was attempting to comply with the

terms of his probation but was unaware that Clark did not comply with the treatment

program conditions. Antonio stated that the Grey Matters “ladies” were always adding

costs to Clark, which was why he was not complying.

       The trial court found all the allegations in the revocation to be true and proceeded

to punishment. At punishment, B.S., the complainant in the underlying sexual assault

case, Jaime Gonzales, Clark’s probation officer, and Antonio testified.

       B.S. testified that she was still traumatized from the abuse, which occurred when

she was five years old. She also stated that she occasionally sees Clark in the Corpus

Christi area and he acknowledges her and either makes faces or “flips her off.” B.S.

asked the trial court to send Clark to prison.

       Antonio testified that Clark is a good person and tries to help his family out.

Antonio explained how Clark took care of their mother and helped him deal with his PTSD.

Antonio did not think Clark should go to prison.

       Gonzales stated that Clark had been discharged from both of the sex offender

treatment programs offered. Gonzales testified that at a prior revocation hearing, he

understood that Clark would live with Antonio, so he would be able to afford paying the


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treatment costs. Gonzales stated that Clark did tell him on February 15th and 23rd that

he did not have the fees for his treatment session the following day. 7 Gonzales agreed

he did not have problems with Clark reporting and abiding by his curfew. He also testified

that he did not look into other sex offender treatment programs because after Clark’s

second revocation proceeding, Gonzales understood that the living arrangement would

prevent money from being an issue.

       At the conclusion of the revocation hearing, the trial court took into account the

prior attempts to help Clark comply. The court stated:

       You have had chances, after chances, after chances. You had your first
       motion to revoke probation, and then a second motion to revoke probation.
       After the first one, you were given another opportunity to try to get back on
       track. There were some other issues besides payment, obviously. The
       next motion to revoke your probation I then put you in – on zero tolerance
       because we came up with a solution. And, you know, your attorney is
       quoting me from my last hearing saying I won’t put somebody in prison for
       being indigent, and I a hundred percent agree with that. I would not do
       that.

The trial court adjudicated Clark’s guilt and sentenced him to fifty years’ imprisonment in

the Texas Department of Criminal Justice–Institutional Division. This appeal followed.

                                  II.     EVIDENCE WAS SUFFICIENT

       By his first issue, Clark alleges the evidence was insufficient to justify the

revocation.

       A.        Standard of Review

       “Appellate review of an order revoking probation is limited to abuse of the trial

court’s discretion.”      Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006)



       7    Clark had been discharged prior to the February 23rd statement.
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(quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)). In determining

questions regarding sufficiency of the evidence in a probation revocation case, the burden

of proof is by a preponderance of the evidence. Id. The court of criminal appeals has

stated that “an order revoking probation must be supported by a preponderance of the

evidence; in other words, that greater weight of the credible evidence which would create

a reasonable belief that the defendant has violated a condition of his probation.” Id. at

763–64 (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)).

       B.      Applicable Law and Discussion

       Although the crux of Clark’s argument during the probation revocation hearing was

his inability to afford the treatment fees, the State alleged two allegations in their motion.

The conditions contained in the motion to revoke were (1) to pay additional court costs,

sex offenders fees, and a monthly supervision fee and (2) Clark was to attend and

participate in a sex offender treatment program and was unsuccessfully discharged from

the program.

       Texas has an “ability-to-pay” statute, which requires the State to prove that a

defendant was able to pay and failed to pay certain fees. Gipson v. State, 383 S.w.3d

152, 157 (Tex. Crim. App. 2012). In Gipson, the trial court revoked the defendant’s

probation based on a failure-to-pay allegation alone. See id. at 153. Here, although the

State did allege a failure-to-pay, the hearing centered around Clark’s failure to comply

with the sex offender treatment program rules. Although he claimed he was mainly

discharged for his inability to pay a $45 fee to attend counseling sessions, the State put

on evidence that he was discharged for his failure to comply with the zero-tolerance


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contract, based on absences, homework requirements, and fees.

       After hearing the evidence, the trial court addressed all the violations of the

contract. The trial court acknowledged that Clark received a disability check and had

limited income, but also heard evidence of his attendance issues and lack of homework

assignments. Motes testified that Clark knew what was required of him since he had

been in their program for over six years and agreed to the zero-tolerance contract. Clark

attended and participated upon starting the program, but his progress seemingly dwindled

as the weeks passed.

       Since it was the third motion to revoke, the trial court stressed how it had given

Clark multiple opportunities to come into compliance and finish the treatment, but he

refused to be successful. Therefore, the trial court found all the State’s allegations true

and sentenced Clark to imprisonment.

       The trial court did not abuse its discretion for finding the allegations in the motion

to revoke true and weighed the history of the case in determining its sentence. We

overrule Clark’s first issue.

                                III.   EXCESSIVE SENTENCING

       By his second issue, Clark argues that the trial court’s sentence of imprisonment

constituted a constitutionally excessive sentence.

       A.      Applicable Law

       The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST.

amend. VIII.     Even though within the range permitted by law, a sentence may


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nonetheless be disproportionate to the gravity of the offense. See Ex parte Chavez, 213

S.W.3d 320, 323–24 (Tex. Crim. App. 2006).

       To preserve error for appellate review, the complaining party must present a timely

and specific objection to the trial court, and obtain a ruling. TEX. R. APP. P. 33.1(a). A

party’s failure to specifically object to an alleged disproportionate or cruel and unusual

sentence in the trial court or in a post-trial motion waives any error for the purposes of

appellate review. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);

Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd)

(“[I]n order to preserve for appellate review a complaint that a sentence is grossly

disproportionate, constituting 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.”).

       B.     Discussion

       Generally, punishment assessed within the punishment statutory range is not

subject to a challenge for excessiveness. Lawrence v. State, 420 S.W.3d 329, 333 (Tex.

App.—Fort Worth 2014, pet. ref’d). When community supervision is revoked, the trial

court may generally impose any punishment within the range authorized by statute. See

id.   When reviewing excessiveness in a case in which the trial court has revoked

probation, we do not weigh the sentence against the gravity of the violations of the

community supervision, but rather the gravity of the initial offense to which the appellant

pleaded guilty. See id.; Buerger v. State, 60 S.W.3d 358, 365–66 (Tex. App.—Houston

[14th Dist.] 2001, pet. ref’d) (appellant’s sentence rests upon adjudication of guilt for crime


                                              10
alleged, not appellant’s violation of community supervision requirements that led to

revocation).

       Having reviewed the record, we note that appellant did not object to an alleged

disproportionate or cruel and unusual sentence in the trial court or in a post-trial motion.

See TEX. R. APP. P. 33.1(a); Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston

[14th Dist.] 2010, pet. ref’d). Accordingly, appellant has waived any error for purposes

of appellate review. See Rhoades, 934 S.W.2d at 120; Noland, 264 S.W.3d at 151.

However, even if Clark had objected to the trial court’s sentence, his original charge was

eight counts of aggravated sexual assault of a child. See TEX. PENAL CODE ANN. §

22.021. B.S. testified that she is still traumatized as an adult for the abuse she endured

as a five-year-old child. Therefore, the trial court was within the range for a first-degree

felony by imposing a fifty-year prison sentence. Clark’s second issue is overruled.

                                   III.    CONCLUSION

       We affirm the judgment of the trial court.



                                                               GINA M. BENAVIDES,
                                                               Justice

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

Delivered and filed the
26th day of July, 2018.




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