NO. 12-18-00170-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ANDREW CHRISTIAN RIVERA, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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§

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APPEAL FROM THE 349TH 

JUDICIAL DISTRICT COURT

HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

Andrew Christian Rivera appeals his conviction for possession of a controlled substance 

in a drug free zone. In two issues, he argues that the evidence is insufficient to support the trial 

court’s judgment revoking his community supervision and that the sentence imposed constitutes 

cruel and unusual punishment. We affirm.

BACKGROUND

On March 30, 2017, Appellant pleaded “guilty” to possession of a controlled substance in 

penalty group one, less than one gram, in a drug free zone, a third degree felony. Pursuant to a 

plea agreement with the State, the trial court deferred finding Appellant “guilty,” and placed him 

on community supervision for ten years. On November 29, the State filed a motion to adjudicate 

guilt alleging that Appellant violated the terms and conditions of his community supervision. On 

April 2, 2018, the State filed a first amended motion to adjudicate guilt alleging additional 

violations. After a hearing on the State’s first amended motion, the trial court found that Appellant 

violated the terms and conditions of his community supervision, proceeded to find him “guilty,” 

and sentenced him to seven years imprisonment. This appeal followed.
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SUFFICIENCY OF THE EVIDENCE 

In his first issue, Appellant argues that the evidence is insufficient to support the trial 

court’s judgment revoking community supervision and adjudicating guilt.

Standard of Review and Applicable Law 

A revocation proceeding is neither criminal nor civil in nature—rather, it is an 

administrative proceeding. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); 

Canseco v. State, 199 S.W.3d 437, 438 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). We 

review a trial court’s judgment revoking community supervision and adjudicating guilt for an 

abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Guerrero v. 

State, 554 S.W.3d 268, 273 (Tex. App.—Houston [14th Dist.] 2018, no pet.). The trial court has 

discretion to revoke community supervision when a preponderance of the evidence supports at 

least one of the State’s alleged violations of the conditions of community supervision. Guerrero, 

554 S.W.3d at 273 (citing Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012)).

In a revocation proceeding, the trial judge is the sole trier of the facts, the credibility of the 

witnesses, and the weight to be given to witnesses’ testimony. Diaz v. State, 516 S.W.2d 154, 156 

(Tex. Crim. App. 1974). Proof of a single violation is sufficient to support a revocation of 

community supervision. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012); see Smith v. 

State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009) (“We have long held that ‘one sufficient 

ground for revocation would support the trial court’s order revoking’ community supervision.” 

(quoting Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App. 1978)). Thus, to prevail on 

appeal, a defendant must successfully challenge all the findings that support the trial court’s 

revocation order. See Garcia, 387 S.W.3d at 26; Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. 

App. 1980); Guerrero, 554 S.W.3d at 274.

Discussion

The State alleged several violations of community supervision. The trial court found it 

“true” that Appellant failed to (1) report to his supervision officer from September 2017 through 

March 2018, (2) report a change of address, (3) complete community service, (4) report his address 

and phone number, and (5) pay restitution. The court found allegations that Appellant failed to 

pay his court costs, fine, and various other fees “not true” because the State did not carry its burden 
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to prove Appellant had the ability to pay the fees. Further, the Court found an allegation that 

Appellant possessed a firearm “not true.” 

The State called Mandy Zehren from the Smith County Community Supervision 

Department (SCSD), as well as Melanie Goolsby and Jose Cruz from the Houston County 

Community Supervision Department (HCSD).1 Zehren testified as a custodian of records from 

SCSD’s file, because Appellant’s supervising officer was no longer employed by SCSD. Zehren 

testified that, on August 7, 2017, Appellant told his supervising officer he was leaving Smith 

County and moving to Harris County. Zehren testified that his supervising officer told Appellant 

that he must contact HCSD, and Appellant responded that he had already notified them. 

Thereafter, SCSD closed their file and sent a letter to HCSD to that effect. Zehren testified that 

Appellant did not provide a forwarding address in Harris County to SCSD.

Goolsby testified that she is the indirect case manager for HCSD, and is tasked with 

facilitating community supervision transfers. She received the letter from SCSD that Appellant 

moved to Harris County and SCSD had closed their case. Goolsby testified that she unsuccessfully 

attempted to contact Appellant by phone and by mail. She testified that Appellant was required to 

notify HCSD within forty eight hours of any address or phone number changes, but did not do so. 

Goolsby spoke with Appellant when he contacted HCSD on January 5, 2018, and instructed him 

to provide his new address and report in person, but he failed to comply. 

Cruz, a supervision officer with HCSD, testified he also spoke with Appellant on January 

5 by telephone. Appellant called to inquire about transferring his community supervision to Harris 

County. Appellant told Cruz he no longer lived in Smith County and was reporting in Harris 

County on another charge. Cruz learned that Appellant had not reported since SCSD closed its 

file and a warrant had been issued for Appellant’s arrest. Cruz informed Appellant to provide his 

new address and report in person to HCSD, but Appellant failed to comply.

Appellant argues that “[t]he State’s witnesses...recited from records and other data, but 

handicapped by little or no contact with the Appellant [sic].” Appellant follows this assertion with 

a summary of Texas Court of Criminal Appeals case law regarding sufficiency challenges to 

support his assertion that this Court “should find that the evidence as applied to the legal and 

 

1 Appellant committed the offense in Houston County, and was placed on community supervision in Houston 

County. His community supervision was transferred to Smith County and he was reporting there, but later moved to 

Harris County. 
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constitutional standards is deficient, and thus the conviction should be vacated, and the matter 

remanded.” We note that Appellant does not argue any error in the admission of the evidence at 

the revocation hearing; rather, Appellant seems to argue that because the State’s witnesses relied 

on notes contained in their files, there was a fatal evidentiary gap in the State’s case. 

Appellant’s complaints about the State’s witnesses’ relying on records to provide their 

testimony is an evidentiary challenge couched as a sufficiency challenge, which we will not 

address. See TEX. R. APP. P. 38.1(f) (brief must state concisely all issues or points presented for 

review), (i) (brief must contain a clear and concise argument for the contentions made, with 

appropriate citations to authorities and to the record). The testimony from the State’s witnesses 

provided sufficient evidence for the trial court to form the reasonable belief that Appellant failed 

to report and failed to provide a change in address in accordance with the terms and conditions of 

his community supervision. 

Thus, because there is sufficient evidence to support at least a single violation, we conclude 

that the trial court did not abuse its discretion in adjudicating Appellant’s guilt and revoking his 

community supervision. See Guerrero, 554 S.W.3d at 273; Rickels, 202 S.W.3d at 763; Garcia, 

387 S.W.3d at 26; Smith, 286 S.W.3d at 342.

CRUEL AND UNUSUAL PUNISHMENT

In his second issue, Appellant argues that his sentence is grossly disproportionate to his 

crime and constitutes cruel and unusual punishment. 

Discussion

In order to preserve for appellate review that a sentence is grossly disproportionate, thus 

constituting cruel and unusual punishment, a defendant must present to the trial court a timely 

objection, request, or motion stating the specific grounds for the ruling desired. Kim v. State, 283 

S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); see also Rhoades v. State, 934 S.W.2d 

113, 120 (Tex. Crim. App. 1996); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995). 

Preservation of error is a systemic requirement that this Court should ordinarily review on its own 

motion as a threshold issue. Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009); TEX. R.

APP. P. 33.1. A review of the record shows that Appellant lodged no objection to the 

constitutionality of his sentence at the trial court level, and thus failed to preserve error for 
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appellate review. See Kim, 283 S.W.3d at 475; see also Rhoades, 934 S.W.2d at 120; Curry, 910 

S.W.2d at 497; Mays, 285 S.W.3d at 889; TEX. R. APP. P. 33.1. 

Had Appellant preserved error, we would nevertheless conclude that his sentence does not 

constitute cruel and unusual punishment. The Eighth Amendment to the Constitution of the United 

States provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel 

and unusual punishments inflicted.” U.S. CONST. AMEND. VIII. This provision was made 

applicable to the states by the Due Process Clause of the Fourteenth Amendment. Meadoux v. 

State, 325 S.W.3d 189, 193 (Tex. Crim. App. 2010) (citing Robinson v. California, 370 U.S. 660, 

666-667, 82 S. Ct. 1417, 1420-21, 8 L. Ed. 2d 758 (1962)).

The legislature is vested with the power to define crimes and prescribe penalties. See Davis 

v. State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet. ref d); see also Simmons v. State, 

944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref’d). Courts have repeatedly held that 

punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or 

unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 

S.W.2d 949, 952 (Tex. Crim. App.1973); Davis, 905 S.W.2d at 664. In this case, Appellant was 

sentenced to seven years imprisonment for possession of a controlled substance in a drug free zone,

a third degree felony, the punishment range for which is two to ten years imprisonment. See TEX.

HEALTH &SAFETY CODE ANN. §§ 481.115(b),481.134(d)(1) (West 2017); TEX. PENAL CODE ANN. 

§ 12.34(a) (West 2011). Thus, the sentence imposed by the trial court falls within the range set 

forth by the legislature. Therefore, the punishment is not prohibited as cruel, unusual, or excessive 

per se. See Harris, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952; Davis, 905 S.W.2d at 664. 

Nonetheless, Appellant urges the court to perform the three part test originally set forth in 

Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, the 

proportionality of a sentence is evaluated by considering (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. Id., 463 U.S. 

at 292, 103 S. Ct. at 3011. The application of the Solem test has been modified by Texas courts 

and the Fifth Circuit Court of Appeals in light of the Supreme Court’s decision in Harmelin v. 

Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a threshold 

determination that the sentence is grossly disproportionate to the crime before addressing the 

remaining elements. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992), cert. 
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denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v. State, 989 

S.W.2d 842, 845-46 (Tex. App.—Texarkana 1999, no pet.).

We are guided by the holding in Rummel v. Estelle in making the threshold determination 

of whether Appellant’s sentence is grossly disproportionate to his crime. 445 U.S. 263, 100 S. Ct. 

1133, 63 L. Ed. 2d 382 (1980). In Rummel, the Supreme Court considered the proportionality 

claim of an appellant who had received a mandatory life sentence under a prior version of the 

Texas habitual offender statute for a conviction of obtaining $120.75 by false pretenses. See id., 

445 U.S. at 266, 100 S. Ct. at 1135. In that case, the appellant received a life sentence because he 

had two prior felony convictions—one for fraudulent use of a credit card to obtain $80 worth of 

goods or services and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. 

at 265–66, 100 S. Ct. at 1134–35. After recognizing the legislative prerogative to classify offenses 

as felonies and, further, considering the purpose of the habitual offender statute, the court 

determined that the appellant’s mandatory life sentence did not constitute cruel and unusual 

punishment. Id., 445 U.S. at 284–85, 100 S. Ct. at 1144–45.

In this case, the offense committed by Appellant—possession of a controlled substance in 

a drug free zone—is certainly no less serious than the combination of offenses committed by the 

appellant in Rummel, while Appellant’s seven year sentence is far less severe than the life sentence 

upheld by the Supreme Court in Rummel. Thus, it is reasonable to conclude that if the sentence 

in Rummel is not constitutionally disproportionate, neither is the sentence assessed against 

Appellant in this case. For the above reasons, we overrule Appellant’s second issue. 

CONCLUSION

Having overruled Appellant’s two issues, we affirm the trial court’s judgment. 

BRIAN HOYLE

Justice

Opinion delivered January 23, 2019.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JANUARY 23, 2019

NO. 12-18-00170-CR

ANDREW CHRISTIAN RIVERA,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 349th District Court 

of Houston County, Texas (Tr.Ct.No. 17CR-029)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court below 

for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.