                             NUMBER 13-13-00180-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

SHARROD JOHNSON,                                                             Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


                     On appeal from the 94th District Court
                          of Nueces County, Texas.


                        MEMORANDUM OPINION
             Before Justices Rodriguez, Garza, and Benavides
               Memorandum Opinion by Justice Benavides

        By two issues, appellant Sharrod Johnson appeals the revocation of his

 community supervision resulting from an adjudication of guilt for family violence assault

 enhanced to a felony of the third degree due to an allegation of a prior conviction for the

 same offense. TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2) (West, Westlaw through
2013 3d C.S.). We affirm.

                                      I.       BACKGROUND

       Pursuant to a plea agreement, on September 2, 2010, Johnson pleaded guilty to

family violence assault.    See id.        The offense was enhanced to a third-degree felony

due to a prior conviction for the same offense.        See id. § 22.01(b)(2).   Pursuant to the

plea agreement, the trial court granted Johnson deferred adjudication and placed him on

community supervision for a term of five years.

       On October 17, 2012, the State filed a motion to revoke probation, alleging that

Johnson had violated eighteen conditions of his community supervision.                Johnson

pleaded “true” to eleven of the allegations and was sanctioned with placement in the

Intermediate Sanctions Facility (I.S.F.) on the substance abuse track program, but was

allowed to remain on community supervision.           The alleged assault causing bodily injury

occurred on December 31, 2012 in the Nueces County Jail, while Johnson was awaiting

transfer to I.S.F.   As a result of this incident, the State filed another motion to revoke

Johnson’s community supervision for violating the conditions of his community

supervision, namely, for committing an offense against the laws of Texas, i.e., assault

causing bodily injury.   See id. § 22.01(a)(1).

       Johnson pled “not true” to the allegation. The trial court held a hearing on this

motion on February 13, 2013. During the guilt phase, the State called one witness,

Officer Jennifer Nuñez, the officer on duty at the jail when the alleged assault occurred.

Officer Nuñez testified that she had an unobstructed view of Johnson playing cards

when, without any physical provocation, he punched another inmate, knocking him

unconscious. According to Officer Nuñez, Johnson struck the other inmate “two or


                                                  2
three” more times before he was restrained by another officer.    Officer Nuñez testified

that after Johnson punched the other inmate, he was “bleeding profusely” and had

lacerations and “bumps” on his head.    After Officer Nuñez’s testimony, the State rested.

      The defense then called Johnson to testify. Johnson testified that he was

provoked both verbally and physically before elbowing and kneeing the victim in

self-defense:

      [Defense Counsel].         Well, did he call you—what triggered the—I
                                 guess the—

      [Johnson].                 Well, I don't know—

      Q.                         —thing between you and him?

      A.                         Well, cause he hit me. There was a lot of name
                                 calling. Am I allowed to say that?

      Q.                         Did he call you—well, let me ask you, did he
                                 call you a name before he hit you or after?

      A.                         Yes, he called me a name several times before
                                 he hit me.

      Q.                         And what did you do in response to that?

      A.                         To him hitting me?

      Q.                         Yes.

      A.                         I tackled him and then I elbowed him and then
                                 I kneed him.

      Q.                         So is it your testimony that he threw the first
                                 punch?

      A.                         Yes, ma'am. I was still sitting down when he
                                 ran across—I ran across to my side of the
                                 table, just throw punches at me. I was just
                                 lucky enough I dodged the first one, threw my
                                 cards down, got caught by the second one,
                                 tackled him and then elbowed him and then

                                            3
                                    kneed him.

Following Johnson’s testimony, the defense rested.

       The trial court found Officer Nuñez’s testimony to be credible, adjudicated

Johnson guilty, revoked his community supervision, and sentenced him to six years in

prison with credit for any time served.   This appeal followed.

                            II.    SUFFICIENCY OF THE EVIDENCE

       By his first issue, Johnson contends that insufficient evidence exists to find that he

committed the alleged offense of assault causing bodily injury.

A.     Standard of Review and Applicable Law

       We review a trial court's order revoking community supervision for an abuse of

discretion.    Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (en banc)

(citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)); Jones v. State,

112 S.W.3d 266, 268 (Tex. App.—Corpus Christi 2003, no pet.).

       In determining questions regarding sufficiency of the evidence in probation

revocation cases, the State bears the burden of proof by a preponderance of the

evidence.     Rickels, 202 S.W.3d at 763 (citing Cardona, 665 S.W.2d at 493); see Hacker

v. State, 389 S.W.3d 860, 864–65 (Tex. Crim. App. 2013); Jones, 112 S.W.3d at 268.

“[A]n 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.”     Rickels,

202 S.W.3d at 763–64 (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim.

App. 1974)).    In a probation revocation proceeding, the trial court is the sole judge of the

credibility of the witnesses and determines whether the allegations in the motion to


                                              4
revoke are true or not. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel

Op.] 1981); see also Martinez v. State, 6 S.W.3d 674, 680 (Tex. App.—Corpus Christi

1999, no pet.).

B.     Analysis

       Johnson contends that the evidence presented during the hearing to revoke

community supervision was insufficient to find he committed the alleged assault causing

bodily injury. Without referencing authority, Johnson first argues that even though the

trial judge acknowledged the conflicting testimony, absent testimony from the other

inmate, the “confrontation should be seen as mutual combat, at best, with [Johnson]

defending his person from further attacks by the [other inmate].” We are not persuaded

by this argument.

       The trial court was the sole judge in determining the credibility of Officer Nuñez

and Johnson’s testimony.      See Garrett, 619 S.W.2d at 174.        Upon hearing Officer

Nuñez’s testimony, the trial court acknowledged that the testimony was conflicting, but

found the allegation to be true because it believed Officer Nuñez to be a credible

witness.   See id.   In finding Officer Nuñez’s testimony to be credible, the trial court

found by a preponderance of the evidence that Johnson committed the assault causing

bodily injury, thereby violating the terms of community supervision.

       Second, Johnson argues that “the injuries to the [other inmate] could very well

have resulted of his falling on the concrete floor of the jail . . . and not necessarily the

result of [Johnson] trying to defend his person from attack by the [other inmate].” Again,

we disagree.      This claim is premised on Johnson’s “mutual combat” theory of the

incident, one which the trial court expressly rejected.    See id. Viewing the evidence


                                             5
most favorable to the verdict, we conclude that the trial court did not abuse its discretion

in finding that Johnson violated the terms of his community supervision by committing

assault causing bodily injury.     See Rickels, 202 S.W.3d at 763.   Johnson’s first issue is

overruled.

                          III.   PROPORTIONALITY OF THE PUNISHMENT

        By his second issue, Johnson alleges that the punishment assessed by the trial

court was disproportionate to the seriousness of the alleged offense, in violation of the

Eighth and Fourteenth Amendments of the United States Constitution.

A.      Standard of Review and Applicable Law

        The Eighth Amendment of the United States Constitution provides “[e]xcessive

bail shall not be required, nor excessive fines, nor cruel and unusual punishment

inflicted.”   U.S. CONST. amend. VIII. This right can be waived if a defendant fails to

object to a sentence on this basis.       Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim.

App. 1986).     To preserve a complaint of disproportionate sentencing, the criminal

defendant must make a timely, specific objection to the trial court or raise the issue in a

motion for new trial. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);

Trevino v. State, 174 S.W.3d 925, 927–28 (Tex. App.—Corpus Christi 2005, pet. ref’d);

see also TEX. R. APP. P. 33.1(a).

B.      Analysis

        Here, the record shows that Johnson neither raised the arguments he now makes

on appeal when the trial court pronounced his sentence, nor raised the argument in a

motion for a new trial.      Therefore, Johnson has not preserved this issue for our review.

See Rhoades, 934 S.W.2d at 120. We overrule Johnson’s second issue.


                                               6
                                   IV.     CONCLUSION

       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
10th day of July, 2014.




                                               7
