                                                                    ACCEPTED
                                                                01-15-00133-CR
                                                     FIRST COURT OF APPEALS
                                                             HOUSTON, TEXAS

    No. 01-15-00133-CR
                                                           6/30/2015 5:10:33 PM
                                                          CHRISTOPHER PRINE
                                                                         CLERK

                In the
     Court of Appeals
               For the                         FILED IN
                                        1st COURT OF APPEALS
  First District of Texas                   HOUSTON, TEXAS
              At Houston                6/30/2015 5:10:33 PM
                                        CHRISTOPHER A. PRINE
      ♦                               Clerk

           No. 1288553
         th
In the 337 Criminal District Court
      Of Harris County, Texas
      ♦

 DEZMON MARTIN GARCIA
               Appellant
                 V.
   THE STATE OF TEXAS
          Appellee
      ♦
STATE’S APPELLATE BRIEF
      ♦

                     DEVON ANDERSON
                     District Attorney
                     Harris County, Texas

                     CATINA HAYNES
                     Assistant District Attorney
                     Harris County, Texas
                     BRIDGET HOLLOWAY
                     Assistant District Attorney
                     Harris County, Texas
                     Texas Bar No. 24025227
                     holloway_bridget@dao.hctx.net
                     Harris County Criminal Justice Center
                     1201 Franklin, Suite 600
                     Houston, Texas 77002
                     Tel.: 713·755·5826
                     FAX: 713·755·5809


    Oral Argument Not Requested
                 STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests

argument if requested by appellant.


                         IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below:

      Counsel for the State:

             Devon Anderson —District Attorney of Harris County
             Bridget Holloway —Assistant District Attorney on appeal
             Catina Haynes —Assistant District Attorney at revocation hearing

      Applicant or criminal defendant:

             Dezmon Martin Garcia

      Counsel for Applicant:

             Crespin Michael Linton —Defense attorney on appeal
             Wendy Baker —Defense attorney at revocation hearing

      Trial Judge:

             Honorable Renee Magee —Presiding Judge at revocation hearing




                                         i
                                           TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ......................................................... i
IDENTIFICATION OF THE PARTIES.......................................................................... i
TABLE OF CONTENTS ........................................................................................... ii
INDEX OF AUTHORITIES ..................................................................................... iii
STATEMENT OF THE CASE .................................................................................... 1
STATEMENT OF FACTS ......................................................................................... 1
SUMMARY OF THE ARGUMENT .......................................................................... 3
REPLY TO APPELLANT’S FIRST ISSUE ON APPEAL ................................................. 4
  Standard of Review ............................................................................................. 4
  Analysis ............................................................................................................... 5
REPLY TO APPELLANT’S SECOND ISSUE ON APPEAL ............................................. 7
  Analysis ............................................................................................................... 7
CONCLUSION .................................................................................................... 11
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE................................. 12




                                                            ii
                                      INDEX OF AUTHORITIES


CASES
Broxton v. Smith,
  909 S.W.2d 912 (Tex. Crim. App. 1995) .......................................................................... 9

Cardona v. State,
  665 S.W.2d 492 (Tex. Crim. App. 1984) ......................................................................... 6

Cobb v. State,
  851 S.W.2d 871 (Tex. Crim. App. 1993) ........................................................................... 5

Cole v. State,
  578 S.W.2d 127 (Tex. Crim. App. 1979) ........................................................................... 6

Combs v. State,
  652 S.W.2d 804
  (Tex. App. —Houston [1st Dist.] 1983, no pet.) ........................................................... 11

Curry v. State,
  910 S.W.2d 490 (Tex. Crim. App. 1995).......................................................................... 8

Duncan v. State,
  321 S.W.3d 53
  (Tex. App. —Houston [1st Dist.] 2010, pet ref’d) ......................................................... 6

Garrett v. State,
  619 S.W.2d 172 (Tex. Crim. App. [Panel Op.] 1981) ..................................................... 6

Harris v. State,
  656 S.W.2d 481 (Tex. Crim. App. 1983) .......................................................................... 9

Hicks v. State,
  15 S.W.3d 626
  (Tex. App. —Houston [14th Dist.] 2000, pet. ref’d) .................................................. 10

Hypke v. State,
  720 S.W.2d 158
  (Tex. App. —Houston [14th Dist.] 1986, pet. ref’d) ..................................................... 9


                                                         iii
Jenkins v. State,
   740 S.W.2d 435 (Tex. Crim. App. 1983).......................................................................... 5

Jones v. State,
   571 S.W.2d 191 (Tex. Crim. App. [Panel Op.] 1978) ..................................................... 6

Moses v. State,
  590 S.W.2d 469 (Tex. Crim. App. 1979) ......................................................................... 7

Nicholas v. State,
   56 S.W.3d 760
  (Tex. App. —Houston [14th Dist.] 2001, pet. ref’d) ..................................................... 9

Rickels v. State,
   202 S.W.3d 759 (Tex. Crim. App. 2006) ......................................................................... 5

Rincon v. State,
  615 S.W.2d 726 (Tex. Crim. App. 1981) ........................................................................... 6

Rodriguez v. State,
  614 S.W.2d 448 (Tex. Crim. App. [Panel Op.] 1981) .................................................... 9

Sanchez v. State,
  603 S.W .2d 869 (Tex. Crim. App. [Panel Op.] 1980) .............................................. 6, 7

Smith v. State,
  721 S.W.2d 844 (Tex. Crim. App. 1986) .......................................................................... 9

Solem v. Helm,
   463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)................................................ 10, 11

Taylor v. State,
   604 S.W.2d 175 (Tex. Crim. App. 1980) ......................................................................... 6

Thomas v. State,
  543 S.W.2d 645 (Tex. Crim. App. 1976).......................................................................... 9

Trevino v. State,
  218 S.W.3d 234
  (Tex. App. —Houston [14th Dist.] 2007, no pet.) ....................................................... 6




                                                         iv
STATUTES
TEX. PEN. CODE ANN.
  §22.01(a)(2) (West 2013) .................................................................................................... 9

RULES
TEX. R. APP. P. 33.1(a) ................................................................................................................ 8
TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................................... i




                                                                    v
TO THE HONORABLE COURT OF APPEALS:

                           STATEMENT OF THE CASE

      Appellant, Dezmon Martin Garcia, was charged with aggravated assault

with a deadly weapon. (CR at 11). Appellant entered a plea of guilty with a

punishment recommendation of 4 years deferred adjudication and a $500 fine.

(CR at 15). The trial court sentenced him in accordance with his guilty plea. (CR

at 28). The State filed a motion to adjudicate appellant’s guilt a little over two

years later. (CR at 34). Appellant entered a plea of “not true” to six of the State’s

allegations and “true” to three of the State’s allegations. (RRII at 8-12). The trial

court found six of the nine allegations true, adjudicated appellant guilty, and

sentenced him to confinement for 8 years and assessed a $500 fine. (RRIII at 24-

26; CR at 43). A written notice of appeal was timely filed. (CR at 46).

                       ♦


                             STATEMENT OF FACTS


      Appellant was placed on community supervision for 4 years in May 2011.

(CR at 15).    The record indicates the conditions of appellant’s community

supervision, in relevance, were:
(CR at 30-31). Twenty-six months later, the State filed a motion to adjudicate his

guilt, alleging he violated the above conditions. (CR at 35-36). To each paragraph,

appellant entered the following plea:


      1.     Not true
      4.     True, except for one month out of seven alleged
      11.    Not true
      12.1   Not true
      12.2   Not true
      12.3   True
      12.4 Not true
      12.5   Not true
      23     Not true


                                        2
(RRII at 8-12). The trial court agreed with appellant on paragraphs 4, 12.2, 12.3,

12.4, 12.5, and 23; ultimately agreeing with appellant that three of the allegations

he plead “true” to were in fact true and four were not, and also finding two

paragraphs he plead “not true” to were in fact true. (RRIII at 24-26). The trial

court revoked appellant’s community supervision, adjudicated him guilty, and

sentenced him to confinement for 8 years and assessed a $500 fine. (RRIII at 7,

26).

                        ♦


                        SUMMARY OF THE ARGUMENT

State’s Reply to Appellant’s First Issue Presented on Appeal:

       Because appellant entered pleas of “true” to three out of the five allegations

the trial court found true, the trial court did not abuse its discretion in revoking

appellant’s community supervision.

State’s Reply to Appellant’s Second Issue Presented on Appeal:

       Because appellant did not object to his sentence as violating his

constitutional rights, he failed to preserve this issue for review. Regardless,

appellant’s sentence lies within the statutory punishment range, is not grossly

disproportionate to the charged offense, and is, therefore, not cruel and unusual.



                        ♦

                                          3
              REPLY TO APPELLANT’S FIRST ISSUE ON APPEAL

      In his first issue presented on appeal, appellant argues the trial court abused

its discretion in revoking his community supervision because the evidence was

insufficient to prove any of the five allegations the court found true. Because

appellant entered pleas of “true” to three out of the five allegations the trial court

found true, the trial court did not abuse its discretion in revoking appellant’s

community supervision.

                               STANDARD OF REVIEW

      A trial court’s order revoking community supervision is reviewed under an

abuse of discretion standard. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.

App. 2006). In a community supervision revocation proceeding, the State has the

burden of proving a violation of the terms of community supervision by a

preponderance of the evidence. See id., at 763–64; Cobb v. State, 851 S.W.2d 871, 873

(Tex. Crim. App. 1993). The State meets its burden when the greater weight of the

credible evidence creates a reasonable belief that the defendant violated a

condition of community supervision as alleged. See Rickels, 202 S.W.3d at 764;

Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983). In a hearing on a

motion to revoke community supervision, the trial court is the sole trier of fact,

and is also the judge of the credibility of the witnesses and the weight to be given



                                          4
their testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); Trevino

v. State, 218 S.W.3d 234, 240 (Tex. App. —Houston [14th Dist.] 2007, no pet.).

      Furthermore, on appeal, this Court examines the evidence in the light most

favorable to the trial court’s ruling. See Garrett v. State, 619 S.W.2d 172, 174 (Tex.

Crim. App. [Panel Op.] 1981); Duncan v. State, 321 S.W.3d 53, 57 (Tex. App. —

Houston [1st Dist.] 2010, pet ref’d). A finding of a single violation of community

supervision is sufficient to support revocation. See Sanchez v. State, 603 S.W .2d 869,

871 (Tex. Crim. App. [Panel Op.] 1980). Thus, to prevail on appeal, appellant must

successfully challenge all of the findings that support the revocation order. See

Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App. [Panel Op.] 1978).

                                      ANALYSIS

      It is the rule that in a proceeding to revoke community supervision, the

burden is upon the State to prove by a preponderance of the evidence that the

probationer has violated one of the probationary conditions as alleged in the

motion to revoke. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984).

Even so, it is equally well established that when a plea of true is entered in a

revocation proceeding, the sufficiency of the evidence may not be challenged.

Rincon v. State, 615 S.W.2d 726, 747 (Tex. Crim. App. 1981); Cole v. State, 578 S.W.2d

127, 128 (Tex. Crim. App. 1979). Thus, a plea of true, standing alone, is sufficient



                                          5
for revocation of probation. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App.

1979). Because appellant entered a plea of “true” to three out of nine allegations,

appellant fails at challenging the revocation of his community supervision.

      Viewing the evidence in the light most favorable to the trial court’s ruling

and keeping in mind the lesser preponderance of the evidence standard, the

evidence is sufficient to show that appellant violated at least one of his community

supervision. See Sanchez v. State, 603 S.W .2d at 871 (the finding of a single violation

of community supervision is sufficient to support revocation). Accordingly, the

trial court did not abuse its discretion in revoking appellant’s community

supervision.

      Appellant’s first issue presented on appeal should be overruled.

                        ♦




                                           6
            REPLY TO APPELLANT’S SECOND ISSUE ON APPEAL

      In his last issue presented on appeal, appellant asserts the trial court abused

its discretion, thereby denying him due process, in sentencing him to cruel and

unusual punishment. Specifically, he argues the punishment “is disproportionate”

to the charged offense when it will be difficult on his family and he could have had

probation reinstated. Because appellant did not object to his sentence as violating

his constitutional rights, he failed to preserve this issue for review. Regardless,

appellant’s sentence lies within the statutory punishment range, is not grossly

disproportionate to the charged offense, and is, therefore, not cruel and unusual.

                                     ANALYSIS

      First, appellant’s cruel and unusual complaint is being presented for the first

time on appeal. “As a prerequisite to presenting a complaint for appellate review,

the record must show that the complaint was made to the trial court by a timely

request, objection, or motion....” TEX. R. APP. P. 33.1(a). Appellant did not object

to the sentence as violating his constitutional right at the time it was pronounced.

(RRIII at 26). Nor did he raise a similar complaint in a post-trial motion. The

constitutional right to be free from cruel and unusual punishment may be waived.

See Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (holding cruel and

unusual punishment complaint not preserved); Nicholas v. State, 56 S.W.3d 760, 768



                                         7
(Tex. App. —Houston [14th Dist.] 2001, pet. ref’d) (holding “[t]he constitutional

right to be free from cruel and unusual punishment may be waived.”). Cf. Broxton v.

Smith, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (“constitutional error may be

waived by failure to object at trial”); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim.

App. 1986) (every right, constitutional or statutory, may be waived by failure to

object). Therefore, appellant does not present an arguable issue on appeal.

      Second, the outcome would be the same even assuming appellant preserved

his argument for appellate review. Texas courts have consistently held that when

a judge or jury assess a punishment that is within the statutory limit, the

punishment is not cruel or unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex.

Crim. App. 1983); Rodriguez v. State, 614 S.W.2d 448, 450 (Tex. Crim. App. [Panel

Op.] 1981); Thomas v. State, 543 S.W.2d 645, 647 (Tex. Crim. App. 1976); Hypke v.

State, 720 S.W.2d 158, 160 (Tex. App. —Houston [14th Dist.] 1986, pet. ref’d). As

appellant was admonished upon entering his plea, the offense to which he pled

guilty, aggravated assault with a deadly weapon, had a punishment ranges of 2 to

20 years’ confinement and could include a fine not to exceed $10,000.00. (CR at

16). See TEX. PEN. CODE ANN. §22.01(a)(2) (West 2013). Because appellant was

sentenced to confinement for 8 years, he was clearly sentenced within the

permissible range.




                                          8
      While the Eighth Amendment does not require strict proportionality

between crime and sentence, it only forbids extreme sentences that are “grossly

disproportionate” to the crime. Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct.

2680, 2705, 115 L.Ed.2d 836 (1991); Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 77

L.Ed.2d 637 (1983). In Solem, the Supreme Court identified three criteria that

should be employed to evaluate the proportionality of a particular sentence: (1)

the gravity of the offense and the harshness of the penalty; (2) the sentences

imposed on other criminals in the same jurisdiction; and (3) the sentences

imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at

292. Punishment will be grossly disproportionate to a crime only when an

objective comparison of the gravity of the offense against the severity of the

sentence reveals the sentence to be extreme. Harmelin, 501 U.S. at 1005; Hicks v.

State, 15 S.W.3d 626, 632 (Tex. App. —Houston [14th Dist.] 2000, pet. ref’d). Only

if the sentence is grossly disproportionate to the offense should this Court then

consider the remaining factors of the Solem test. See id.

      Appellant seems to suggest that his family needing him matters when it

comes to his punishment for committing a crime. His sentence was within the

range of punishment established by legislature. Either years out of a possible 20-

year sentence of confinement is not grossly disproportionate to committing

aggravated assault with a deadly weapon. Eligibility for probation does not effect


                                           9
the established rule that a punishment within the statutory range is not cruel and

unusual punishment. See Combs v. State, 652 S.W.2d 804, 806 (Tex. App. —

Houston [1st Dist.] 1983, no pet.). Because the threshold test is not satisfied, the

remaining factors of Solem need not be addressed. Accordingly, the trial court did

not abuse its discretion in sentencing appellant. Appellant’s last issue on appeal is

without merit and should be overruled.

                       ♦




                                         10
                                 CONCLUSION

      It is respectfully submitted that all things are regular and that the

conviction should be affirmed.



                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas


                                               /s/ Bridget Holloway


                                              BRIDGET HOLLOWAY
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              (713) 755-5826
                                              Texas Bar No. 24025227
                                              holloway_bridget@dao.hctx.net




                                     11
        CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE

      This is to certify: (a) that the word count of the computer program used to

prepare this document reports that there are 2575 words in the document; and (b)

that the undersigned attorney requested that a copy of this document be served to

appellant’s attorney via TexFile at the following email on June 30, 2015:



      Crespin M. Linton
      Attorney at Law
      Email: crespin@hal-pc.org




                                                    /s/ Bridget Holloway


                                                  BRIDGET HOLLOWAY
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002
                                                  (713) 755-5826
                                                  Texas Bar No. 24025227
                                                  holloway_bridget@dao.hctx.net




                                         12
