IN THE

TENTH COURT OF APPEALS

No. 10-12-00432-CR

FRED NATHAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court No. 33696-CR

MEMORANDUM OPINION

In one issue, appellant, Fred Nathan, argues that the trial court abused its 

discretion in revoking his community supervision. We affirm.

I. BACKGROUND

Appellant was indicted for aggravated assault with a punishment enhancement. 

As part of an agreement with the State, appellant pleaded guilty to the charged offense, 

and the State dropped the punishment enhancement. The trial court deferred a finding 

of guilt and placed appellant on community supervision for four years. Thereafter, the 
Nathan v. State Page 2

State filed a motion to revoke appellant’s community supervision, alleging numerous 

violations, including: (1) failing to pay court-ordered probation fees and court costs; (2) 

testing positive for cocaine; (3) tampering with a urine sample; and (4) failing to find 

suitable employment.

On August 8, 2012, the trial court conducted a hearing on the State’s motion to 

revoke. At the conclusion of the hearing, the trial court: (1) found all of the allegations 

contained in the State’s motion to revoke to be true, except for the allegation relating to 

finding suitable employment; (2) revoked appellant’s community supervision; (3) found 

him guilty of the underlying offense; and (4) sentenced him to sixteen years’ 

incarceration in the Institutional Division of the Texas Department of Criminal Justice. 

This appeal followed.

II. STANDARD OF REVIEW

We review an order revoking community supervision under an abuse-ofdiscretion standard. See Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006). 

To justify revocation, the State must prove by a preponderance of the evidence that the 

defendant violated the terms and conditions of community supervision. See Hacker v. 

State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013). “In the probation-revocation 

context, ‘a preponderance of the evidence’ means ‘that greater weight of the credible 

evidence which would create a reasonable belief that the defendant has violated a 

condition of his probation.’” Id. at 865 (quoting Rickels, 202 S.W.3d at 764). The trial 

court is the sole judge of the credibility of the witnesses and the weight to be given their 
Nathan v. State Page 3

testimony; thus, we review the evidence in the light most favorable to the trial court’s 

ruling. See id. at 865.

If the State fails to produce a preponderance of the evidence to support 

revocation, the trial court abuses its discretion. See Cardona v. State, 665 S.W.2d 492, 493-

94 (Tex. Crim. App. 1984). However, proof by a preponderance of any one alleged 

violation is sufficient to affirm an order revoking community supervision and 

adjudicating guilt. See Bryant v. State, 391 S.W.3d 86, 93 (Tex. Crim. App. 2012); Clay v. 

State, 361 S.W.3d 762, 765 (Tex. App.—Fort Worth 2012, no pet.).

III. ANALYSIS

In his sole issue on appeal, appellant contends that the trial court abused its 

discretion in revoking his community supervision because the State did not prove by a 

preponderance of the evidence that he had violated the terms and conditions of his 

community supervision. Appellant also argues that the trial court abused its discretion 

in sentencing him.

At the August 8, 2012 adjudication hearing, Justin Bryan, an officer with the 

Navarro County Adult Community Supervision and Corrections Department, testified 

that appellant failed to pay his probation fees and court costs, failed to maintain stable 

employment, tested positive for cocaine on May 11, 2012, and tried to tamper with a 

urine screen on May 11, 2012. According to Bryan, appellant stated that he received 

$606 per month in disability and that he could make the required payments for his 

community supervision and court costs. Bryan testified that appellant owed more than 
Nathan v. State Page 4

$400 for his community supervision and more than $60 in court costs. Bryan then 

recalled an incident regarding the drug testing of appellant.

On May 11, 2012, appellant was requested to supply a urine sample. Appellant 

told Bryan that he could not provide a sample at 11:00 a.m., so Bryan allowed appellant 

to come back at 1:00 p.m. to provide the sample. When he returned at 1:00 p.m. to 

provide the sample, appellant engaged in suspicious behavior. Bryan recounted that, 

while providing the sample, appellant coughed loudly, gasped, and turned his back to 

obstruct Bryan’s view. Based on the obstruction, Bryan twice requested that appellant 

pull down his pants to ensure that nothing was being concealed. Appellant became 

agitated and “threw his arms up and when he threw his arms up[,] I noticed that there 

was a wet spot on his shorts, and a condom fell from his shorts to the floor underneath 

him.” Bryan noticed that the condom still had some urine in it. Based on his training 

and experience, which included the administration of at least 1,000 or 2,000 drug tests, 

Bryan believed that appellant was trying to tamper with the urine sample.

Nevertheless, the cup provided for the sample contained some urine. Bryan 

field-tested the fluid in the cup, and the fluid tested positive for cocaine. Bryan then 

confronted appellant about the tampering. Appellant denied having cocaine in his 

system, but he did admit that the condom was his and that he had brought the condom 

to use for his urine sample. Bryan told appellant that he could either supply another 

urine sample or be charged with a new offense. Appellant agreed to provide a new 

sample that ultimately tested positive for cocaine.
Nathan v. State Page 5

Based on appellant’s failure to pay his court-ordered costs and fees, appellant’s 

tampering with the drug test, and appellant’s positive drug test, Bryan believed that 

appellant’s community supervision should be revoked.

Appellant and his wife also testified. In particular, appellant noted that he used 

to receive $608 a month but now receives $628 a month in disability, that his church 

helps him out with some of his bills, that he receives food stamps, and that his wife 

receives $400 a month in disability. Appellant denied being able to use his disability 

money to pay the court-ordered costs in this case, but he did admit to receiving a debit 

card from the Social Security Administration and being able to withdraw cash using 

that card. Appellant also admitted to borrowing money from his sister and father and 

to telling Bryan that he would pay his court-ordered fees; however, he acknowledged 

that he never told Bryan that he was unable to pay the fees. With regard to the May 11, 

2012 incident, appellant asserted that Bryan was lying and that he did not try to tamper 

with the drug test.

By revoking appellant’s community supervision, the trial court clearly believed 

Bryan’s testimony over appellant’s, which it was entitled to do. See Hacker, 389 S.W.3d 

at 865; see also Lozano v. State, No. 03-07-00597-CR, 2008 Tex. App. LEXIS 6212, at **4-5 

(Tex. App.—Austin Aug. 14, 2008, no pet.) (mem. op., not designated for publication) 

(recognizing that the trial court may disbelieve or not accept appellant’s excuses for 

failing to comply with community-supervision conditions). Moreover, with 

evidentiary-sufficiency challenges such as this, we are to defer to the trial court’s 

resolution of conflicting testimony. See Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. 
Nathan v. State Page 6

App. 2008); Mauney v. State, 107 S.W.3d 693, 695 (Tex. App.—Austin 2003, no pet.); see 

also Munoz v. State, Nos. 11-12-00137-CR, 11-12-00138-CR, 11-12-00139-CR, 11-12-00140-

CR, 2013 Tex. App. LEXIS 4645, at *7 (Tex. App.—Eastland Apr. 11, 2013, no pet. h.) 

(mem. op., not designated for publication) (“We must consider the facts in the light 

most favorable to the trial court’s ruling and defer to the trial court’s resolution of 

disputed testimony.”). Therefore, viewing the evidence in the light most favorable to 

the trial court’s ruling, we conclude that the record contains sufficient evidence to 

demonstrate by a preponderance of the evidence that appellant violated his community 

supervision. See Hacker, 389 S.W.3d at 864-65. Accordingly, we cannot say that the trial 

court abused its discretion in revoking appellant’s community supervision. See Rickels,

202 S.W.3d at 763-64.

In any event, the second part of appellant’s issue, which could be considered 

multifarious, attacks the sentence imposed by the trial court—sixteen years’ 

incarceration. “Generally, punishment assessed within the statutory limits is not 

excessive, cruel, or unusual punishment.” Dale v. State, 170 S.W.3d 797, 799 (Tex. 

App.—Fort Worth 2005, no pet.) (citing Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. 

App. 1979); Alvarez v. State, 63 S.W.3d 578, 580 (Tex. App.—Fort Worth 2001, no pet.)). 

The record reflects that appellant was charged with aggravated assault, a second-degree 

felony, in the underlying offense. See TEX. PENAL CODE ANN. § 22.02(a)-(b) (West 2011). 

Section 12.33 of the Texas Penal Code provides that the punishment range for a seconddegree felony is “for any term of not more than 20 years or less than 2 years.” Id. § 
Nathan v. State Page 7

12.33(a) (West 2011). Therefore, appellant’s sixteen-year sentence falls within the 

punishment range proscribed by section 12.33. See id.

Furthermore, we note that appellant has cast this complaint in terms of an abuse 

of discretion. This Court has stated:

Typically challenges to the proportionality of the length of a sentence are 

raised as a violation of the Eighth Amendment’s ban on “cruel and 

unusual punishment.” Although such claims are seldom successful, there 

is an established body of case law which provides a framework for 

analyzing such an Eighth Amendment claim. 

Appellant has, instead, cast his issue in terms of an “abuse of 

discretion.” He has not cited any cases where an appellate court has 

reviewed the length of an otherwise lawful sentence and determined that 

the court abused its discretion by imposing such a sentence. Indeed, the 

only case he cites is Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984). 

Jackson involves a court’s abuse of discretion in the procedure employed at 

the sentencing phase; it has nothing to do with the actual sentence and, 

therefore, no applicability to this case.

Shelburg v. State, No. No. 10-09-00172-CR, 2011 Tex. App. LEXIS 3228, at **3-4 (Tex. 

App.—Waco Apr. 27, 2011, no pet.) (mem. op., not designated for publication) (internal 

citations omitted).

Likewise, in the instant case, appellant invokes Jackson while arguing that the 

trial court abused its discretion in assessing the sixteen-year sentence. Because we do 

not find Jackson to be applicable in this case, and because the imposed sentence is within 

the punishment range proscribed for second-degree felonies, we cannot say that the 

trial court abused its discretion. See id. We therefore overrule appellant’s sole issue on 

appeal. 
Nathan v. State Page 8

IV. CONCLUSION

Having overruled appellant’s sole issue on appeal, we affirm the judgment of the 

trial court.

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed June 20, 2013

Do not publish

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