NUMBER 13-13-00180-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

SHARROD JOHNSON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 94th District Court

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Benavides

Memorandum Opinion by Justice Benavides

By two issues, appellant Sharrod Johnson appeals the revocation of his 

community supervision resulting from an adjudication of guilt for family violence assault

enhanced to a felony of the third degree due to an allegation of a prior conviction for the 

same offense. TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2) (West, Westlaw through 
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2013 3d C.S.). We affirm.

I. BACKGROUND

Pursuant to a plea agreement, on September 2, 2010, Johnson pleaded guilty to 

family violence assault. See id. The offense was enhanced to a third-degree felony 

due to a prior conviction for the same offense. See id. § 22.01(b)(2). Pursuant to the 

plea agreement, the trial court granted Johnson deferred adjudication and placed him on

community supervision for a term of five years.

On October 17, 2012, the State filed a motion to revoke probation, alleging that 

Johnson had violated eighteen conditions of his community supervision. Johnson 

pleaded “true” to eleven of the allegations and was sanctioned with placement in the 

Intermediate Sanctions Facility (I.S.F.) on the substance abuse track program, but was 

allowed to remain on community supervision. The alleged assault causing bodily injury 

occurred on December 31, 2012 in the Nueces County Jail, while Johnson was awaiting 

transfer to I.S.F. As a result of this incident, the State filed another motion to revoke

Johnson’s community supervision for violating the conditions of his community 

supervision, namely, for committing an offense against the laws of Texas, i.e., assault 

causing bodily injury. See id. § 22.01(a)(1).

Johnson pled “not true” to the allegation. The trial court held a hearing on this 

motion on February 13, 2013. During the guilt phase, the State called one witness, 

Officer Jennifer Nuñez, the officer on duty at the jail when the alleged assault occurred. 

Officer Nuñez testified that she had an unobstructed view of Johnson playing cards 

when, without any physical provocation, he punched another inmate, knocking him 

unconscious. According to Officer Nuñez, Johnson struck the other inmate “two or 
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three” more times before he was restrained by another officer. Officer Nuñez testified 

that after Johnson punched the other inmate, he was “bleeding profusely” and had 

lacerations and “bumps” on his head. After Officer Nuñez’s testimony, the State rested. 

The defense then called Johnson to testify. Johnson testified that he was 

provoked both verbally and physically before elbowing and kneeing the victim in 

self-defense: 

[Defense Counsel]. Well, did he call you—what triggered the—I

guess the—

[Johnson]. Well, I don't know—

Q. —thing between you and him?

A. Well, cause he hit me. There was a lot of name 

calling. Am I allowed to say that?

Q. Did he call you—well, let me ask you, did he 

call you a name before he hit you or after?

A. Yes, he called me a name several times before 

he hit me.

Q. And what did you do in response to that?

A. To him hitting me?

Q. Yes.

A. I tackled him and then I elbowed him and then

I kneed him.

Q. So is it your testimony that he threw the first 

punch?

A. Yes, ma'am. I was still sitting down when he

ran across—I ran across to my side of the 

table, just throw punches at me. I was just 

lucky enough I dodged the first one, threw my 

cards down, got caught by the second one, 

tackled him and then elbowed him and then 
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kneed him.

Following Johnson’s testimony, the defense rested. 

The trial court found Officer Nuñez’s testimony to be credible, adjudicated 

Johnson guilty, revoked his community supervision, and sentenced him to six years in 

prison with credit for any time served. This appeal followed. 

II. SUFFICIENCY OF THE EVIDENCE

By his first issue, Johnson contends that insufficient evidence exists to find that he 

committed the alleged offense of assault causing bodily injury. 

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) (en banc) 

(citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)); Jones v. State, 

112 S.W.3d 266, 268 (Tex. App.—Corpus Christi 2003, no pet.).

In determining questions regarding sufficiency of the evidence in probation 

revocation cases, the State bears the burden of proof by a preponderance of the 

evidence. Rickels, 202 S.W.3d at 763 (citing Cardona, 665 S.W.2d at 493); see Hacker 

v. State, 389 S.W.3d 860, 864–65 (Tex. Crim. App. 2013); Jones, 112 S.W.3d at 268. 

“[A]n order revoking probation must be supported by a preponderance of the evidence; in 

other words, that greater weight of the credible evidence which would create a 

reasonable belief that the defendant has violated a condition of his probation.” Rickels, 

202 S.W.3d at 763–64 (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim.

App. 1974)). In a probation revocation proceeding, the trial court is the sole judge of the 

credibility of the witnesses and determines whether the allegations in the motion to 
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revoke are true or not. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel 

Op.] 1981); see also Martinez v. State, 6 S.W.3d 674, 680 (Tex. App.—Corpus Christi 

1999, no pet.). 

B. Analysis

Johnson contends that the evidence presented during the hearing to revoke 

community supervision was insufficient to find he committed the alleged assault causing 

bodily injury. Without referencing authority, Johnson first argues that even though the 

trial judge acknowledged the conflicting testimony, absent testimony from the other 

inmate, the “confrontation should be seen as mutual combat, at best, with [Johnson] 

defending his person from further attacks by the [other inmate].” We are not persuaded 

by this argument. 

The trial court was the sole judge in determining the credibility of Officer Nuñez 

and Johnson’s testimony. See Garrett, 619 S.W.2d at 174. Upon hearing Officer 

Nuñez’s testimony, the trial court acknowledged that the testimony was conflicting, but 

found the allegation to be true because it believed Officer Nuñez to be a credible 

witness. See id. In finding Officer Nuñez’s testimony to be credible, the trial court 

found by a preponderance of the evidence that Johnson committed the assault causing 

bodily injury, thereby violating the terms of community supervision.

Second, Johnson argues that “the injuries to the [other inmate] could very well 

have resulted of his falling on the concrete floor of the jail . . . and not necessarily the 

result of [Johnson] trying to defend his person from attack by the [other inmate].” Again, 

we disagree. This claim is premised on Johnson’s “mutual combat” theory of the 

incident, one which the trial court expressly rejected. See id. Viewing the evidence 
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most favorable to the verdict, we conclude that the trial court did not abuse its discretion 

in finding that Johnson violated the terms of his community supervision by committing 

assault causing bodily injury. See Rickels, 202 S.W.3d at 763. Johnson’s first issue is 

overruled. 

III. PROPORTIONALITY OF THE PUNISHMENT

By his second issue, Johnson alleges that the punishment assessed by the trial 

court was disproportionate to the seriousness of the alleged offense, in violation of the 

Eighth and Fourteenth Amendments of the United States Constitution. 

A. Standard of Review and Applicable Law

The Eighth Amendment of the United States Constitution provides “[e]xcessive

bail shall not be required, nor excessive fines, nor cruel and unusual punishment 

inflicted.” U.S. CONST. amend. VIII. This right can be waived if a defendant fails to 

object to a sentence on this basis. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. 

App. 1986). To preserve a complaint of disproportionate sentencing, the criminal 

defendant must make a timely, specific objection to the trial court or raise the issue in a 

motion for new trial. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); 

Trevino v. State, 174 S.W.3d 925, 927–28 (Tex. App.—Corpus Christi 2005, pet. ref’d); 

see also TEX. R. APP. P. 33.1(a). 

B. Analysis

Here, the record shows that Johnson neither raised the arguments he now makes 

on appeal when the trial court pronounced his sentence, nor raised the argument in a 

motion for a new trial. Therefore, Johnson has not preserved this issue for our review. 

See Rhoades, 934 S.W.2d at 120. We overrule Johnson’s second issue.
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IV. CONCLUSION

We affirm the trial court’s judgment. 

__________________________

GINA M. BENAVIDES,

Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed the

10th day of July, 2014.