### NUMBER 13
- 1 3
- 00 180
- CR


## COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

- 

## EDINBURG

SHARROD JOHNSON , A ppellant,

v.
THE STATE OF TEXAS , Appellee.

On appeal from the 94th District Court o f Nueces County, Texas.



## MEMORANDUM OPINION

Before Justices R odriguez, Garza, and Benavides Memorandum Opinion by Justice Benavides
By two issues , a ppell ant Sharrod Johnson appeals the revocation of his
community supervision resulting from an adjudication of guilt for family violence assault
enhanced to a felony o f the third degree due to an allegation of a prior conviction for the

same offense

. T EX

. P ENAL C ODE A NN

. § 22.01 (a ) ( 1) , (b)(2) (West, Westlaw through2

2013 3d C.S.). We affirm.

I. B ACKGROUND Pursuant to a plea agreement, on September 2, 2010, Johnson p leaded 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 adjudica tion and placed him on
community supervision for a term of five years.

On October 17
, 2012, the State filed a m oti on to revoke p robation, alleging that

Johnson had violated eighteen conditions of his community supervision. Johnson
plead ed “true” to ele ven 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 Decem ber 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 cour t held a hearing on this motion on February 13, 2013. During the guilt phase, the S tate called one witness,

Officer Jennifer Nu ñ ez, the officer on duty at the jail when the alleged assault occurred.

Officer Nu ñ ez testified that she had an unobstructed view of Johnson playing cards
when, without any physical provocation, he punched anoth er inmate, knocking him

unconscious. According to Officer Nu ñ ez, Johnson struck the other inmate “two or3

three” more times before he was restrained by another officer. Officer Nu ñ ez testified

that after Johnso n punched the other inmate, he was “bleeding profusely” and had
lacerations and “bumps” on his head. After Officer Nu ñ ez’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 kne eing the vi ctim in

self

- defense:
[Defense Counsel]

. Well, did he cal l 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 th at?
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 pun ches 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 th en elbowed him and then4 kneed him. Following Johnson’s testimony, the defense rested.

The trial court found Officer Nu ñ ez’s testimony to be credible, a djudicated

Johnson guilt y , revoked his community supervision, and sentenced him to six years in
prison with credit for any time served. This appeal followed.

II. S UFFICIENCY OF THE E VIDENCE By his first issue , Johnson contend s th at 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. Rick

els v. State , 202 S.W.3d 759, 763 (Tex. C rim. 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 suf ficiency of the evidence in probation
revocation cases, the S tate b ear s 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. 20 13); Jones , 112 S.W.3d at 268.
“[A] n order revoking probation must b e 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 condit ion of hi s probation.” Rickel s , 202 S

. W.3d at 763

– 64 (quoting Scamar d o v. State
, 517 S.W.2d 293, 298 (Tex. Cr im

. App. 1974 ) ). In a probation revocation proceeding, the trial court is the sole judge of the
credibility of the witnesses and determines wheth er the allegations in the motion to5

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 d uring the hearing t o 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 acknowledg ed 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.

Th e trial court was the sole judge in determining the credibility of Officer Nu ñ ez and Johnson’s testimony. See Garrett, 619 S.W.2d at 174. Upon hearing Officer

Nu ñ ez’s testimony, the trial court acknowl edged that the testimony was conflicting, but

found t he allegation to be true because it believed Officer Nu ñ ez to be a credible

witness. See id

. In finding Officer Nu ñ ez’s testimony to be credible, the trial court
found by a preponderance of the evidence that Johnson committed the assault causing
bodily i njury, 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] t rying to defend his person from attack by the [other inmate] .” Aga in,

w e disagree. This claim is premised on Johnson’s “mutual combat” theory of the
incident, one which the trial court expressly rejected. See id. V iewing the evidence6

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

overr uled.

III. P ROPORTIONALITY OF TH E P UNISHMENT 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. Standa rd of Review and Applicable Law
The Eighth Amendment of the United S tates C onstitution provides “ [e]xcessive
bail shall not be required, nor excessive fines, nor cruel and unusual punishment

inflicted.” U.S. C ONST . 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 ti mely, 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);

s ee also T EX

. R. A PP

. P . 33.1(a).

B

. Analysis
Here, the record shows that Johnson neither raise d the a rguments he now makes
on appeal when the trial court pron ounced his sentence, nor raise d the argument in a

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

See Rhoades , 934 S.W. 2d at 120. We overrule Johnson’s second issue.7 IV. C ONCLUSION We affirm the trial court’s judgment.

___________________ __ _____ GINA M. BENAVIDES, Justice

Do not p ublish. T EX

. R. A PP

. P. 47

. 2 ( b )

. Delivered and filed the 10th day of Ju ly , 201 4

.