## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 14 - 00239 - CR

ASENCIO PEREZ, JR. APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM THE 355TH DISTR ICT COURT OF HOOD CO UNTY TRIAL COURT NO. CR10 203

---------- 

### MEMORANDUM OPINIO N 1

---------- Appellant Asencio Perez Jr. appeals from his thirty

- year sentence imposed after his deferred adjudication community supervision was revoked and he was adjudicated guilty of burglary of a habitation with intent to commit another felony. We af firm.

1 See Tex. R. App. P . 47.4.2 Background Facts Appellant was indicted on June 14, 2006, for the offense of burglary of a habitation with intent to commit aggravated assault, a first degree felony. See Tex. Penal Code Ann. § 30.02(d) (West 2011 ). Appellant ple a d ed guilty on Jan uary 29, 2007, and was placed on deferred adjudication community supervision for ten years. The trial court also entered an affirmative finding that a deadly weapon was used or exhibited during the commission of the offense. On November 7, 2007, the Sta te filed a motion to adjudicate guilt based on Appellant’s alleged cocaine use in violation of the terms of his community supervision

. Appellant ple a d ed true, and the court modified those terms by extending his supervision by one year, ordering him to ser ve 120 days in jail, and requiring that he complete a SAFP relapse program. On March 3 , 2014, the State filed a motion to adjudicate guilt based on Appellant’s alleged methamphetamine use, failure to submit a urine sample, and failure to attend NA meetin gs and prov ide appropriate documentation. Appellant ple a d ed “not true” to using methamphetamine but “true” to the failure to submit a urine sample and to properly attend and document NA attendance. At the conclusion of the bench trial, the trial court f ound true all of the State’s allegations in the motion to adjudicate. The trial court adjudicated Appellant guilty of the offense of burglary of a habitation with intent to commit aggravated r obbery and revoked his community supervision

. The trial court3 assessed Appellant’s punishment at thirty years ’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant then appeal ed

. Discussion Appellant brings two points on appeal. 1. Disproportionate sentence In his first point, Appellant claims that the punishment assessed was grossly disproportionate to the offense committed. In resolving an Eighth Amendment disproportionality complaint, we first compare the gravity of the offense to the severity of the sentence. McGrud er v. Puckett , 954 F.2d 313, 315 (5th Cir.); Moore v. State , 54 S.W.3d 529, 542 (Tex. App.

— Fort Worth 2001, pet. ref’ d) ( applying the McGruder proportionality analysis ). We evaluate the original offense, not community supervision violations, in making thi s comparison. Hulsey v. State , No. 02

- 12

- 00205

- CR, 2013 WL 627019, at *2 (Tex. App.

— For t Worth Feb. 21, 2013, pet. ref’ d) (mem. op., not designated for publication); Sullivan v. State , 975 S.W.2d 755, 756 (Tex. App.

— Corpus Christi 1998, no pet.); see Moor e , 54 S.W.3d at 542 (“[T]he court initially made a threshold comparison of the gravity of the offense against the severity of the sentence

. ”) (emphasis added) (citing McGruder , 954 F.2d at 316). Assuming without deciding that Appellant has preserved his po int, 2 we note that Appellant’s sentence falls within the statutory range for his offense of

2 At the sentencing hearing, the trial court orally announced its assessment of thirty years’ confinement and asked, “Do you have anything to say to this4 burglary of a habitation with intent to commit aggravated assault

. See Tex. Penal Code Ann. § 12.32(a) (West 2011 ) (setting range of punishment for a first degree felony as imprisonment “for life or for any term not more than 99 years or less than 5 years”). The trial court’s discretion to impose any punishment within the prescribed range is essentially “unfettered.” Ex parte Chavez , 213 S.W.3d 320, 323 (Tex. Crim . App. 2006). Punishment imposed within the statutory range is generally not subject to challenge for excessiveness. See Dale v. State , 170 S.W.3d 797, 799 (Tex. App.

— Fort Worth 2005, no pet.) (“Generally, punishment assessed within the statutory limits is not excessive, cruel, or unusual punishment.”). Although we acknowledge the evidence that Appellant had made many improvements in his life during the past few years of his community supervision, we cannot say that his punishment was grossly disproporti onate to the crime so as to violate the Eighth Amendment of the United States Constitution. See U.S. Const. amend. VIII; Solem v. Helm , 463 U.S. 277, 284, 103 S. Ct. 3001, 3006 (1983); McGruder , 954 F.2d at 315

– 17 ; Moore , 54 S.W.3d
at 542. We overrule Ap pellant’s first point.

Court as to why that sentence should not now be formally pronounced?” Appellant answered, “Yes , sir. 30 years? I didn’t even fail a UA, sir. I didn’t do

— I didn’t commit another crime. I didn’t do any of that. That was me back then. I’m a completely different person.” Appellant filed a motion for new trial, but did not argue disproportionalit y.5 2. Violation of community supervision conditions In his second point, Appellant argues that the evidence was insufficient to support the trial court’s finding that he violated the conditions of his community supervision. Appellant pleaded true to two of the three alleged violations. Those pleas of true, standing alone, are sufficient to support revocation. See Perry v. State , 367 S.W.3d 690, 693 (Tex. App.

— Texarkana 2012, no pet.). And although Appellant argues they are minor vi olations, a trial court may revoke community supervision for a violation of any condition, including any single “technical” condition. See Nurridin v. State , 154 S.W.3d 920, 924 (Tex. App.

— Dallas 2005, no pet.) . We therefore overrule Appellant’s second p oint. Conclusion Having overruled Appellant’s two points, we affirm the trial court’s judgment.

/s/ Lee Gabriel LEE GABRIEL JUSTICE PANEL: MEIER, GABRIEL, and SUDDERTH, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: June 25, 2015