                           NUMBER 13-12-00535-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

ANDRE SAMUEL,                                                          Appellant,


                                         v.


THE STATE OF TEXAS,                                                    Appellee.


                  On appeal from the 117th District Court
                        of Nueces County, Texas.


                       MEMORANDUM OPINION
             Before Justices Benavides, Perkes and Longoria
               Memorandum Opinion by Justice Longoria
      This appeal ensued after the trial court revoked Andre Samuel’s community

supervision and imposed a seven year prison sentence for two counts of indecency with

a child. See TEX. PENAL CODE ANN. § 21.11 (West 2011). We uphold the revocation

because there is sufficient evidence to support the trial court’s finding that Samuel
committed the “new offense” of indecent exposure in violation of the laws of this State

and the terms and conditions of his community supervision, as alleged in the State’s

motion to revoke. See id. § 21.08(a) (West 2011); Garcia v. State, 387 S.W.3d 20, 26

(Tex. Crim. App. 2012) (“[A] single violation will support revocation.”). Furthermore,

although Samuel has also challenged the constitutionality of his seven year prison

sentence on the basis that it is disproportionate to the seriousness of the offenses he

committed, see U.S. CONST. amends. VIII, XIV, we conclude that he failed to preserve

that issue by failing to make an appropriate objection to the trial court. See TEX. R. APP.

P. 33.1(a). Accordingly, the error, if any, was not preserved for our review. See id. The

judgment of the trial court is therefore affirmed.

                                      I. BACKGROUND

       Samuel pled guilty to two counts of indecency with a child and was originally

given a ten-year prison sentence for each offense, with the sentences to run

concurrently. See TEX. PENAL CODE ANN. § 21.11. However, the jury recommended

that the sentences be suspended. Pursuant to the jury’s verdict, the trial court placed

Samuel on community supervision for a period of ten years. See TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 2(2) (West Supp. 2011). Subsequently, the State filed a motion

to revoke Samuel’s community supervision alleging that Samuel committed two

violations of the terms and conditions of his community supervision: (1) he committed

the offense of indecent exposure, see TEX. PENAL CODE ANN. § 21.08(a); and (2) he

failed to pay court-ordered fees. Samuel pled “not true” to the two alleged violations.

       The trial court held an evidentiary hearing during which a number of witnesses

were called to testify for both sides. The State waived its right to make an opening



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statement and proceeded directly to the presentation of its evidence, almost all of which

concerned the indecent-exposure violation. Among other witnesses, the State called

the victim of the offense. She testified that on the afternoon of May 7, 2012, a “black”

man exposed his erect penis to her while she was attempting to exit a building located

on the east campus of Del Mar College in Corpus Christi. She further testified that she

witnessed the same individual flee the scene in a “bright green” car. Without objection,

she positively identified Samuel in the courtroom as the individual who exposed himself

to her.

          In his defense, Samuel called two witnesses who testified that, at the time in

question, he owned and drove a “silver” car. Samuel also took the stand. He testified

that he drove a “silver” car, that he did not visit the Del Mar College campus at any time

on May 7, 2012, and that on the afternoon of May 7, 2012, he was at the office of the

Texas Department of Public Safety (“DPS”) taking a test to obtain a commercial driver’s

license (“CDL”). Samuel also presented additional evidence, including his application

for the CDL and the test record for the CDL, which was signed by him and dated May 7,

2012.

          To prove the second alleged violation, the State called Samuel’s probation

officer, who testified that Samuel had failed to pay outstanding fees in the amount of

$218. 1 Neither side presented any evidence about whether Samuel had the ability to

pay the outstanding fees. 2              Nor did the trial court make any inquiries into the

circumstances of Samuel’s failure to pay.


          1
          These fees consisted of $108 in court costs, $10 in sex offender fees, and $100 in monthly
supervision fees.
          2
              We note that one witness for the defense testified that Samuel has been employed as a cashier

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       In his closing argument, Samuel’s attorney argued that the State had failed to

prove the indecent-exposure violation. He questioned the reliability of the victim’s in-

court identification of Samuel as the perpetrator of the offense. He argued that it was

influenced by a photograph lineup in which Samuel’s picture was “the biggest and

brightest photograph.” Although he conceded that “this photograph lineup may not be

impermissibly suggestive,” he told the court that there was no positive identification

because “people make mistakes with identification all the time” and the victim had

merely picked out “a black man in jail clothes.”

       Counsel then went into the conflicts in the evidence. He pointed out that the

victim had testified that the perpetrator was approximately five feet and eight inches tall,

was in his late twenties or early thirties, and was not wearing glasses. In contrast,

Samuel is five feet and four inches tall, is in his late thirties, and wears prescription

glasses. Counsel also talked about the “bright green” car the victim described, how

there was no evidence that Samuel drove a “bright green” car, and how the

uncontroverted evidence established that Samuel owned a “silver” car. Finally, counsel

discussed Samuel’s alibi about being at the DPS office when the offense occurred, but

he acknowledged that the alibi was not “airtight.”

       With respect to the second alleged violation, Samuel’s attorney argued in

relevant part as follows:

       I’m not concerned about the other allegations because I know that this
       Court, or any reasonable court is not going to send a man to prison
       because he’s behind on a hundred bucks on some payment. So I’m not
       concerned about that. I just didn’t want to plead true to anything or waive
       any rights.

at a Kentucky Fried Chicken restaurant since 2009, which is evidence of income and arguably some
circumstantial evidence of his ability to pay the outstanding fees. However, there was no further
testimony or evidence bearing on the issue.

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       In its closing argument, the State argued the merits of its case with respect to the

alleged violation involving the offense of indecent exposure. However, it did not discuss

the alleged violation based on Samuel’s failure to pay court-ordered fees. Nor did the

State respond to counsel’s argument that the alleged failure-to-pay violation, standing

alone, was not a valid basis for revoking Samuel’s community supervision.

       At the conclusion of the hearing, the trial judge found that Samuel failed to pay

$218 in fees in violation of the terms and conditions of his community supervision, as

alleged by the State.     However, the trial judge stated that she would not revoke

Samuel’s community supervision based solely on the technical violation:

       I’m going to find that allegation No. 1 is true. I’m gonna find allegation No.
       2 is true, but I could tell you, as you probably already know, there’s no way
       that I would revoke somebody on failure to pay $218. In fact, without
       another allegation, the Code of Criminal Procedure prevents me from
       doing so. It is the more serious allegation of another event involving a
       sexual act that is of concern to this Court.

In her judgment revoking Samuel’s community supervision, the trial judge found “all” the

State’s alleged violations to be true and assessed a seven year prison sentence.

Samuel now appeals by two issues.

                                       II. ANALYSIS

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) (citing

Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)). In a community-

supervision revocation hearing, the State bears the burden of showing by a

preponderance of the evidence that the defendant committed at least one violation of



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the terms and conditions of his community supervision. Cobb v. State, 851 S.W.2d 871,

873 (Tex. Crim. App. 1993). “[T]he trial judge is the sole trier of fact and determines the

credibility of the witnesses and the weight to be given [to] their testimony.” Cherry v.

State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet. ref’d). “We review the

evidence in the light most favorable to the trial court’s ruling.” Id. If the State does not

meet its burden of proof with respect to at least one alleged violation, the trial court

abuses its discretion in revoking the community supervision. Cardona, 665 S.W.2d at

493–94.

B. Revocation of Community Supervision

       In his first issue, Samuel challenges the sufficiency of the evidence to support the

trial court’s finding that the alleged violation involving the offense of indecent exposure

was “true.”       According to Samuel’s attorney, this was by far “the most damning

allegation” in the State’s motion. See Leonard v. State, 385 S.W.3d 570, 576 (Tex.

Crim. App. 2012) (“In a revocation proceeding, the trial court has discretion to revoke

community supervision when a preponderance of the evidence supports one of the

State’s allegations that the defendant violated a condition of his community

supervision.”).

       In relevant part, the penal code defines the offense of indecent exposure as

follows:

       A person commits an offense if he exposes his anus or any part of his
       genitals with intent to arouse or gratify the sexual desire of any person,
       and he is reckless about whether another is present who will be offended
       or alarmed by his act.

See TEX. PENAL CODE ANN. § 21.08(a).




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        It is undisputed that at the hearing on the motion to revoke, the State proved that

on May 7, 2012, a “black” man standing in a building on the east campus of Del Mar

College exposed his erect penis to a female student as she was attempting to exit the

building. There is no dispute that this individual committed the offense of indecent

exposure. See id. However, Samuel contends that the State failed to prove by a

preponderance of the evidence that he was the individual who committed the offense.

See Cobb, 851 S.W.2d at 873.

        At the hearing on the motion to revoke, the victim positively identified Samuel as

the individual who exposed his penis to her. We also note that the State presented

additional evidence that further corroborated the victim’s in-court identification of

Samuel. 3     Samuel did not make any objections to the admissibility of the in-court

identification, see TEX. R. EVID. 103(a)(1), and therefore, he has waived any error in the

trial court’s admission of the testimony. See TEX. R. APP. P. 33.1(a)(1). Furthermore,

the positive identification of a defendant as the perpetrator of a crime is sufficient to

support a conviction. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App.

[Panel Op.] 1978) (“The prosecutrix’ identification of appellant as the man who raped

her is sufficient.”). Therefore, it is necessarily sufficient to meet the lower standard of

preponderance of the evidence applicable in this case. See Cobb, 851 S.W.2d at 873.

        We recognize that Samuel presented evidence of an alibi, but even his attorney

acknowledged that the alibi was not “airtight.” “As the sole judge of the weight and


        3
            In addition to the testimony of the victim, the State also presented a surveillance video showing
a man walking out of the building where the offense occurred. Diane Berry testified that she works for the
City of Corpus Christi and registers sex offenders. Berry testified that she is familiar with Samuel
because he previously registered as a sex offender. Berry further testified that when she saw the video
footage from the surveillance camera, she “immediately thought of . . . Samuel.” At the hearing, she
testified that the man in the video looked like Samuel.

                                                     7
credibility accorded any witness’s testimony, the [judge] was free to believe or

disbelieve the testimony of all witnesses, and to accept or reject any or all of the

evidence produced by the respective parties.” Cleveland v. State, 177 S.W.3d 374, 380

(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).      After hearing the testimony and

considering the evidence, the judge resolved the conflicts in favor of the State. See

Cherry, 215 S.W.3d at 919. Because her finding is supported by sufficient evidence to

meet the preponderance of the evidence standard of proof, we may not disturb it on

appeal. See Rickels, 202 S.W.3d at 763. Accordingly, Samuel’s first issue is overruled.

C. Punishment

      In his second issue, Samuel argues that the punishment assessed by the trial

court was disproportionate to the seriousness of the offenses in violation of the Eighth

and Fourteenth Amendments to the United States Constitution.           See U.S. CONST.

amends. VIII, XIV. The State contends that Samuel forfeited this argument by failing to

object at trial. See TEX. R. APP. P. 33.1(a)(1). We agree.

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

timely and specific objection to the trial court and obtain a ruling. See id. 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




                                            8
to the trial court a timely request, objection, or motion stating the specific grounds for

the ruling desired.”).

       Having reviewed the record, we note that Samuel did not object to the sentence

or assert that it was disproportionate to the seriousness of the offenses. See TEX. R.

APP. P. 33.1(a)(1). Accordingly, he did not preserve the issue for review in this appeal.

See Rhoades, 934 S.W.2d at 120; Noland, 264 S.W.3d at 151. His second issue is

therefore overruled.

                                     III. CONCLUSION

       The judgment of the trial court is affirmed.




                                                 ___________________
                                                 NORA L. LONGORIA
                                                 Justice
Do Not Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of December, 2013.




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