                          NUMBER 13-11-00660-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

CHRISTOPHER BLACKBURN
A/K/A CHRISTOPHER BRETT BLACKBURN,                                     Appellant,

                                        v.

THE STATE OF TEXAS,                                                     Appellee.


                  On appeal from the 252nd District Court
                       of Jefferson County, Texas.


                       MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
                Memorandum Opinion by Justice Vela
      A Jefferson County grand jury indicted appellant, Christopher Blackburn a/k/a

Christopher Brett Blackburn, for assault-family violence. See TEX. PENAL CODE ANN. §

22.01(a)(1), (2)(B) (West 2011). Pursuant to a plea-bargain agreement, he pleaded

guilty to the Class A misdemeanor offense of assault, see id. § 22.01(a)(1), and was
placed on deferred-adjudication community supervision for one year and fined $100.

Following a revocation hearing, the trial court found appellant violated a condition of his

community-supervision order and sentenced him to one year in the county jail. By three

issues, appellant argues: (1) his sentence was disproportionate and unreasonable, in

violation of the Eighth Amendment to the United States Constitution; (2) his sentence was

disproportionate and unreasonable, in violation of Article 1, Section 13 of the Texas

Constitution; and (3) the trial court abused its discretion in revoking his community

supervision. We affirm.

                                 I. REVOCATION HEARING

       During the revocation hearing, the trial court asked appellant, "Count 1 [of the

motion to revoke] says that you committed the offense of assault family violence on or

about the 14th day of August, 2011, in Jefferson County. Is Count 1 true or not true?"

After appellant pleaded "Not true," the State called appellant's grandmother, Shirry

Zachary, to the witness stand. She testified that in the morning of August 14, 2011, she

was asleep in her apartment when appellant, who is a member of her household, grabbed

the covers off of her bed. She stated, "I grabbed for my covers, and . . . he [appellant]

shoved me." When the prosecutor asked her, "Do you think . . . he knew what he was

doing?", she said, "No, he did not. . . . He was asleep." When she was asked, "So, it's

your contention that he was just sleepwalking?", she said, "I believe he was because he .

. . done it before." Upon hearing this, the prosecutor asked her, "You told Officer Mouton

that he [appellant] yelled at you, that he punched you in the stomach, that he slammed

you into a wall, that you had back pain and skin abrasions as a result of that assault." To


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this, she said, "No, I did not." She testified, "He didn't shove me against the wall." She

said appellant "shoved me . . . back." She stated, "That didn't cause me pain, no.

Whenever he shoved me and he got back up, come at me, I grabbed the mop handle, and

I pulled a grandma on him. . . ."

       On cross-examination, when defense counsel asked Zachary, "[Y]ou testified that

he only pushed you; is that correct?", she answered affirmatively.        When defense

counsel asked her, "[B]ut it didn't cause you any pain. Was that your testimony?", she

said, "That didn't hurt me. What hurt me is when after I hit him, he body-slammed me."

       Appellant denied shoving and body-slamming his grandmother. He stated that

when she grabbed the blankets off of him, she scratched his chest.

                                     II. DISCUSSION

A. Disproportionate Punishment

       In issues one and two, appellant argues his sentence was disproportionate and

unreasonable, in violation of the Eighth Amendment to the United States Constitution and

Article 1, Section 13 of the Texas Constitution. Appellant does not argue that Article 1,

Section 13 of the Texas Constitution provides any more or different protection than its

federal counterpart. Accordingly, we examine this argument solely under the Eighth

Amendment. Rivera v. State, 363 S.W.3d 660, 678 n.12 (Tex. App.—Houston [1st Dist.]

2011, no pet.); see Buster v. State, 144 S.W.3d 71, 81 (Tex. App.—Tyler 2004, no pet.);

see also Baldridge v. State, 77 S.W.3d 890, 893–94 (Tex. App.—Houston [14th Dist.]

2002, pet. ref'd).




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       The Eighth Amendment, which forbids cruel and unusual punishment, contains a

narrow proportionality principle prohibiting a sentence from being greatly disproportionate

to the crime it punishes. See Ewing v. California, 538 U.S. 11, 20 (2003) (citing Harmelin

v. Michigan, 501 U.S. 957, 996–97 (1991) (Kennedy, J., concurring in part and concurring

in judgment)). Embodied within the Constitution's ban on cruel and unusual punishment

is the "precept of justice that punishment for crime should be graduated and proportioned

to [the] offense." Weems v. United States, 217 U.S. 349, 367 (1910). The Eighth

Amendment does not require strict proportionality between crime and sentence; rather, it

forbids only extreme sentences that are grossly disproportionate to the crime. See

Ewing, 538 U.S. at 23. The precise contours of the Agrossly disproportionate@ standard

are unclear, but it applies only in "exceedingly rare" and "extreme" cases. See Lockyer

v. Andrade, 538 U.S. 63, 73 (2003).

       In Graham v. Florida, 130 S.Ct. 2011 (2010), the Supreme Court stated that

generally there are two classifications of proportionality challenges to sentences. "The

first involves challenges to the length of term-of-years sentences given all the

circumstances in a particular case." Graham, 130 S.Ct. at 2021. Under this approach,

courts must determine "whether a sentence for a term of years is grossly disproportionate

for a particular defendant's crime." Id. at 2022. "The second classification of cases has

used categorical rules to define Eighth Amendment standards." Id. This classification

consists of two subsets, one considering the nature of the offense, the other considering

the characteristics of the offender. Id. Here, appellant argues his sentence is grossly

disproportionate to the offense committed and is inappropriate to the offender under the


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facts and circumstances presented.

       Texas courts have traditionally held that, as long as the punishment assessed falls

within the punishment range prescribed by the Legislature in a valid statute, the

punishment is not excessive. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim.

App. 1973); Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet.

ref'd); see also Escochea v. State, 139 S.W.3d 67, 80 (Tex. App.—Corpus Christi 2004,

no pet.). 1   Appellant's sentence fell within the punishment range for a Class A

misdemeanor. See TEX. PENAL CODE ANN. § 12.21 (West 2011) (stating, "An individual

adjudged guilty of a Class A misdemeanor shall be punished by: (1) a fine not to exceed

$4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and

confinement."). However, that does not end the inquiry. Texas courts recognize that a

prohibition against a grossly disproportionate sentence survives under the federal

constitution apart from any consideration whether the punishment assessed is within the

statute's punishment range.         Winchester v. State, 246 S.W.3d 386, 388 (Tex.

App.—Amarillo 2008, pet. ref'd); Mullins v. State, 208 S.W.3d 469, 470 (Tex.

App.—Texarkana 2006, no pet.).

       This Court has recognized that "the viability and mode of application of

proportionate analysis . . . has been questioned since the Supreme Court's decision in

Harmelin v. Michigan, 501 U.S. 957 (1991)."             Trevino, 174 S.W.3d at 928 (citing

McGruder v. Puckett, 954 F.2d 313, 315–16 (5th Cir. 1992) (discussing the various



       1
         Vera v. State, Nos. 13-05-00169, 13-05-00170-CR, 2006 WL 5181930, at *3 (Tex. App.—Corpus
Christi Aug. 29, 2008, pet. ref'd) (mem. op., not designated for publication).

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opinions issued in Harmelin and their impact on the Solem decision2)); see Sullivan v.

State, 975 S.W.2d 755, 757–58 (Tex. App.—Corpus Christi 1998, no pet.) (discussing the

implications of the Harmelin opinion and reviewing the proportionality of defendant's

sentence under the Solem and McGruder tests). Assuming, arguendo, the viability of a

proportionality review, as we did in Sullivan, we will apply both the Solem and McGruder

tests to the facts of this case. See Sullivan, 975 S.W.2d at 757–58.3 In both Solem and

McGruder, we look first at the gravity of the offense and the harshness of the penalty.

Solem, 463 U.S. at 290-91; McGruder, 954 F.2d at 316.

       1. Gravity of the Offense

       We judge the gravity of the offense in light of the harm caused or threatened to

society and the offender's culpability.        Moore v. State, 54 S.W.3d 529, 542 (Tex.

App.—Fort Worth 2001, pet. ref'd) (citing Solem, 463 U.S. 291–92). With respect to the

underlying offense, the indictment alleged, in relevant part, that on or about December

24, 2010, appellant intentionally, knowingly, and recklessly "cause[d] bodily injury to

SHELBY PALMER, . . . by applying pressure to [Palmer's] throat and neck and by

blocking [Palmer's] nose and mouth, impeding the normal breathing and circulation of the

blood of [Palmer] and at the time of commission of the offense, [appellant] and [Palmer]

were family members. . . ." Appellant pleaded guilty to the lesser-included offense of

Class A misdemeanor assault, and the trial court placed him on deferred-adjudication

community supervision for one year.           By entering a plea to the offense, appellant

       2
        See Solem v. Helm, 463 U.S. 272 (1983).
       3
          See also McGiffin v. State, No. 13-05-00561-CR, 2006 WL 2294553, at *1 (Tex. App.—Corpus
Christi, Aug. 10, 2006, no pet.) (mem. op., not designated for publication).

                                                  6
admitted his culpability. With respect to the harm caused or threatened to society,

appellant committed a crime of violence against a person, who is alleged to be a family

member. We conclude that the gravity of the offense weighs in favor of a finding that the

punishment was not excessive.

      2. Harshness of the Penalty

      Appellant pleaded guilty to Class A misdemeanor assault.          The Legislature

considered this crime serious enough to deserve a punishment of up to one year in the

county jail. Appellant's one-year sentence fell within the punishment range for a Class A

misdemeanor. See TEX. PENAL CODE ANN. § 12.21. In light of the seriousness of the

crime to which appellant pleaded guilty, combined with the evidence in the present case

that appellant committed another crime of violence; i.e., body-slamming and shoving his

grandmother, we cannot say his one-year sentence is disproportionate to his offense.

We therefore find that his punishment is not grossly disproportionate to the offenses for

which he was convicted.      This finding ends our analysis under McGruder.         See

McGruder, 954 F.2d at 316; see also Sullivan, 975 S.W.2d at 757. Because there is no

evidence in the appellate record of the sentences imposed for other similar crimes in

Texas or for the same crimes in other jurisdictions, we cannot perform a comparative

evaluation using the remaining Solem factors. See Solem, 463 U.S. at 292; see also

Sullivan, 975 S.W.2d at 757-58. Therefore, we hold that appellant's punishment is

neither grossly disproportionate nor cruel and unusual.       Issues one and two are

overruled.




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B. Sufficiency of the Evidence to Support Revocation

       In issue three, appellant contends the trial court abused its discretion in revoking

appellant's community supervision because the evidence is legally insufficient to show he

violated the terms of his community supervision.

       1. Standard of Review

       "The State has the burden of showing by a preponderance of the evidence that the

defendant committed a violation of the conditions of community supervision." Antwine v.

State, 268 S.W.3d 634, 636 (Tex. App.—Eastland 2008, pet. ref'd) (citing Cobb v. State,

851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Kulhanek v. State, 587 S.W.2d 424, 426

(Tex. Crim. App. 1979)). "The trial court's order revoking community supervision is

reviewed under an abuse of discretion standard." Id. (citing 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)). "The trial court is the sole judge of the credibility of the witnesses and the weight

given to their testimony, and the evidence is reviewed in the light most favorable to the

trial court's ruling." Id. (citing Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d

172, 174 (Tex. Crim. App. 1981)). "If the State fails to meet its burden of proof, the trial

court abuses its discretion in revoking the community supervision." Id. (citing Cardona,

665 S.W.2d at 493–94). "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

revocation order." Id. (citing TEX. CODE CRIM. PROC. ANN. art. 42.12, 21(b); Moore v.

State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980); Leach v. State, 170 S.W.3d 669, 672

(Tex. App.—Fort Worth 2005, pet. ref'd)).


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       "In a community supervision revocation hearing, an abuse of discretion occurs

when the trial judge's decision was so clearly wrong as to lie outside that zone within

which reasonable persons might disagree." Wilkins v. State, 279 S.W.3d 701, 703–04

(Tex. App.—Amarillo 2007, no pet.); Brumbalow v. State, 933 S.W.2d 298, 300 (Tex.

App.—Waco 1996, writ. ref'd). "[O]ne sufficient ground for revocation will support the

court's order to revoke" community supervision. Moore v. State, 605 S.W.2d 924, 926

(Tex. Crim. App. 1980).

       2. Analysis

       Condition one of appellant's community-supervision order required him to

"[c]ommit no offense against the laws of this State. . . ." The motion to revoke alleged, in

relevant part, that appellant on or about August 14, 2011, "intentionally, knowingly, and

recklessly cause[d] bodily injury to another person, namely Shirry Zachary, a member of

Defendant's family and household, . . . by hitting [Shirry Zachary] with his hand and by

pushing [Shirry Zachary] with his hand, . . . in violation of Condition (1) of Defendant's

Deferred Adjudication order [sic]."

       The evidence showed appellant, who is Zachary's grandson and a member of her

household, on or about August 14, 2011, shoved Zachary and body-slammed her,

causing her pain. When the prosecutor asked her, "You told Officer Mouton that he

[appellant] yelled at you, that he punched you in the stomach, that he slammed you into a

wall, that you had back pain and skin abrasions as a result of that assault[,]" she said,

"No, I did not." However, because the trial court is the sole judge of the credibility of the


                                             9
witnesses and the weight given to their testimony, the trial court could have decided to

believe that Zachary told Officer Mouton the truth about what appellant did to her. In

addition, Officer Mouton's affidavit in support of appellant's arrest warrant stated, in

relevant part, the assault occurred after appellant pulled covers off of Zachary while she

was asleep in bed. When she went to retrieve her covers, appellant "punched her in the

stomach with a closed fist. She was also grabbed around the torso, picked up and

thrown to the ground. The complainant suffered physical back pain and minor skin

abrasion as a direct result of this intentional assault on her."

       After reviewing the evidence in the light most favorable to the trial court's ruling, we

conclude the State proved, by a preponderance of the evidence, that appellant violated

condition one of his community-supervision order. Therefore, we hold the trial court did

not abuse its discretion by revoking appellant's community supervision. Issue three is

overruled.

                                       III. CONCLUSION

       The judgment of the trial court is affirmed.



                                                   ROSE VELA
                                                   Justice


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

Delivered and filed the
12th day of July, 2012.




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