                                        In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                              ___________________

                               NO. 09-13-00097-CR
                              ___________________

                           DANIEL KANE, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
_________________________________________________________________ _

                On Appeal from the 252nd District Court
                       Jefferson County, Texas
                       Trial Cause No. 09-06258
_________________________________________________________________ _

                          MEMORANDUM OPINION

      This is an appeal from the trial court’s judgment revoking Daniel Kane’s

community supervision. In three appellate issues, Kane challenges the

constitutionality of his sentence under the United States Constitution and the Texas

Constitution, as well as the legal sufficiency of the evidence supporting the trial

court’s determination that he violated a condition of his community supervision.

We affirm the trial court’s judgment.

      Pursuant to a plea bargain agreement, Kane pleaded guilty to felony theft of

property with a value of at least $1500 and less than $20,000. The trial court found
                                          1
the evidence sufficient to find Kane guilty, but deferred further proceedings, placed

Kane on community supervision for five years, and assessed a fine of $500. The

State subsequently filed a motion to revoke Kane’s unadjudicated community

supervision. Kane pleaded “not true” to the sole alleged violation of the terms of

his community supervision. After conducting an evidentiary hearing, the trial court

found that Kane violated the terms of his community supervision, found him

guilty, and assessed punishment at two years of confinement in a state jail facility.

      In issue one, Kane argues that his sentence was constitutionally

disproportionate and unreasonable under the Eighth Amendment to the United

States Constitution. In issue two, Kane contends his sentence was constitutionally

disproportionate and unreasonable under Article I, section 13 of the Texas

Constitution. We address issues one and two together.

      The record does not reflect that Kane raised his state and federal

constitutional complaints in the trial court. See Tex. R. App. P. 33.1(a). However,

even if Kane had preserved his issue for our review, his argument would still fail.

Kane’s sentence was within the statutorily-authorized range of punishment for his

offense. See Tex. Penal Code Ann. § 31.03(e) (West Supp. 2012) (Theft of

property with a value of at least $1500 and less than $20,000 is a state jail felony.);

Id. § 12.35(a) (State jail felony punishment is confinement of not more than two


                                          2
years or less than 180 days in a state jail facility and a fine of up to $10,000). 1

Generally, a sentence that is within the range of punishment established by the

Legislature will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814

(Tex. Crim. App. 1984). In addition, a punishment that is within the statutory range

for the offense is generally not excessive under the United States Constitution or

the Texas Constitution. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas

1997, pet. ref’d); see also Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—

Texarkana 1999, no pet.). Accordingly, we overrule issues one and two.

      In his third issue, Kane argues that the evidence was legally insufficient to

support the trial court’s determination that he had violated the conditions of his

community supervision. The State alleged in its motion to revoke that Kane had

violated condition number one of his community supervision order by committing

the offense of terroristic threat on or about December 29, 2012, by threatening to

murder R.K., a member of his family.

      At the evidentiary hearing, the State presented testimony from the victim,

R.K. According to R.K., Kane was living with her on December 29, 2012. R.K.

explained that she allowed Kane to live with her because he was homeless. R.K.

testified that Kane quit his job and began using drugs. R.K. explained that she

      1
        Because the amendments to sections 12.35(a) and 31.03(e) of the Texas
Penal Code are not material to this appeal, we cite to the current version of both
statutes.
                                         3
found a pipe on the back of the toilet where Kane had been smoking. According to

R.K., on December 29, 2012, Kane came onto the driveway of her home and, using

profanity, threatened to kill her. R.K. explained that she is afraid of Kane, and she

got into her car and left after he threatened her. R.K. called the police a few days

later and informed the police of the threat Kane had made toward her.

      Kane also testified at the hearing. According to Kane, the item R.K. testified

was a pipe was actually a trumpet. Kane admitted that he had an argument with

R.K., but he testified that he never threatened to kill her.

      At a revocation hearing, the State has the burden to establish the alleged

violations by a preponderance of the evidence. Rickels v. State, 202 S.W.3d 759,

763-64 (Tex. Crim. App. 2006); Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.

App. 1993). The trial court is the sole trier of facts and judge of the credibility of

witnesses, and the trial court decides what weight to give to the testimony.

Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.—Tyler 2002, no pet.). We review

the trial court’s decision to revoke community supervision for an abuse of

discretion. Rickels, 202 S.W.3d at 763. The trial court abuses its discretion only if

its decision “was so clearly wrong as to lie outside that zone within which

reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.

Crim. App. 1992). We view the evidence in the light most favorable to the trial

court’s ruling. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).
                                           4
Proof of a single violation of the terms of community supervision is sufficient to

support revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).

      The victim testified concerning the terroristic threat made by Kane. The

evidence adduced at the hearing was sufficient to support the trial court’s finding

that Kane violated the conditions of his community supervision by committing the

offense of making a terroristic threat on December 29, 2012. See Rickels, 202

S.W.3d at 763-64; Cantu, 842 S.W.2d at 682; Moore, 605 S.W.2d at 926;

Cochran, 78 S.W.3d at 28. Therefore, the trial court did not abuse its discretion by

revoking Kane’s community supervision. We overrule issue three and affirm the

trial court’s judgment.

      AFFIRMED.



                                             ______________________________
                                                    STEVE McKEITHEN
                                                       Chief Justice


Submitted on June 20, 2013
Opinion Delivered July 10, 2013
Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.




                                         5
