Case Information

*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 6/30/2015 5:10:33 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00133-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 6/30/2015 5:10:33 PM No. 01-15-00133-CR CHRISTOPHER PRINE CLERK In the

Court of Appeals

For the First District of Texas At Houston

♦

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

♦ DEZMON MARTIN GARCIA Appellant

V.

THE STATE OF TEXAS

Appellee

♦ STATE’S APPELLATE BRIEF ♦

D EVON A NDERSON District Attorney Harris County, Texas C ATINA H AYNES Assistant District Attorney Harris County, Texas B RIDGET H OLLOWAY 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 T EX . R. A PP . P. 9.4(g) and T EX . R. A PP . P. 39.1, the State requests argument if requested by appellant.

IDENTIFICATION OF THE PARTIES Pursuant to T EX . R. A PP . 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

C ASES

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

S TATUTES

T EX . P EN . C ODE A NN .

§22.01(a)(2) (West 2013) .................................................................................................... 9 R ULES

T EX . R. A PP . P. 33.1(a) ................................................................................................................ 8

T EX . R. A PP . 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

(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.

♦ *10 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.

S TANDARD OF R EVIEW 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

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).

A NALYSIS 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

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. ♦ *13 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.

A NALYSIS 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....” T EX . R. A PP . 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

(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 T EX . P EN . C ODE A NN . §22.01(a)(2) (West 2013). Because appellant was

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

permissible range.

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

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.

♦

CONCLUSION

It is respectfully submitted that all things are regular and that the conviction should be affirmed.

D EVON A NDERSON District Attorney Harris County, Texas /s/ Bridget Holloway B RIDGET H OLLOWAY 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 *18 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 B RIDGET H OLLOWAY 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