COURT OF CRIMINAL APPEALS

OF TEXAS

CORPUS CHRISTI, TEXAS

_______________________________________________________

CIPRIANO GONZALEZ APPELLANT

V.

THE STATE OF TEXAS APPELLEE

Petition in Cause No.13-14-00308-CR

Tr. Ct. No. 10-CR-2815-F

214TH District Court of Nueces County, Texas, 

and the 13th Court of Appeals, 

Corpus Christi, Texas 

_______________________________________________________ 

PETITION FOR DISCRETIONARY REVIEW

_______________________________________________________

RANDALL E. PRETZER

State Bar No. 16279300

P.O. Box 18993

Corpus Christi, Texas 78480

BUS: (361) 883-0499

FAX: (361) 883-2290

E-Mail: repretzer@gmail.com

ATTORNEY FOR APPELLANT

PD-0920-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/21/2015 8:28:28 PM

Accepted 7/22/2015 5:01:42 PM

ABEL ACOSTA

CLERK
i

IDENTITY OF PARTIES AND COUNSEL

JUDGE PRESIDING

THE HONORABLE JOSE LONGORIA

214ST JUDICIAL DISTRICT COURT 

901 LEOPARD STREET

CORPUS CHRISTI, TEXAS 78401

COUNSEL FOR THE STATE

MS. ASHLEY EARL

ASSISTANT DISTRICT ATTORNEY

901 LEOPARD STREET

CORPUS CHRISTI, TEXAS 78401

APPELLANT

MR. CIPRIANO GONZALEZ

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

STATE JAIL DIVISION

APPELLANT'S COUNSEL

MR. RANDALL E. PRETZER, PLLC

ATTORNEY FOR APPELLANT

P.O. BOX 18993

CORPUS CHRISTI, TEXAS 78480
ii

TABLE OF CONTENTS

 

Page

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . ii-iii 

INDEX OF AUTHORITIES . . . . . . . . . . . . . . iv-v

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . vi

PROCEDURAL HISTORY . . . . . . . . . . . . . . . 1-2

STATEMENT OF THE CASE . . . . . . . . . . . . . . 2-3

STATEMENT OF FACTS (MTR HEARING ON THE MERITS). . 3-6

FIRST GROUND FOR REVIEW . . . . . . . . . . . . . 6

FIRST GROUND FOR REVIEW

THE COURT OF APPEALS ERRED WHEN IT FAILED TO FIND THAT 

THE EVIDENCE INTRODUCED DURING THE MTR HEARING 

REGARDING THE ALLEGATION OF ASSAULT CAUSING BODILY 

INJURY WAS FACTUALLY INSUFFICIENT TO SUPPORT THE 

COURT’S FINDING BY A PREPONDERANCE OF THE EVIDENCE THAT 

SUCH ALLEGATION WAS TRUE.

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 6

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . 6-7

SECOND GROUND FOR REVIEW . . . . . . . . . . . . 7-8
iii

SECOND GROUND FOR REVIEW

THE COURT OF APPEALS ERRED WHEN IT FAILED TO FIND THAT 

THE PUNISHMENT ASSESSED BY THE JUDGE DURING SENTENCING 

PHASE OF THE MTR WAS DISPROPORTIONATE TO THE 

SERIOUSNESS OF THE ALLEGED OFFENSE, ALL IN VIOLATION OF 

THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED 

STATES CONSTITUTION.

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 8

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . 8-17

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . 17-18

CERTIFICATE OF SERVICE . . . . . . . . . . . . . 18

CERTIFICATE OF COMPLIANCE, RULE 9.4(i), TRAP . . 19

APPENDIX . . . . . . . . . . . . . . . . . . . . 20
iv

INDEX OF AUTHORITIES

 

Cases: Page

Harris v. State, 656 S.W.2d 481, 486(Tex.Crim. App.

1983) . . . . . . . . . . . . . . . . . . . . . . . 9

Combs v. State, 652 S.W.2d 804, 806 (Tex. App.—

Houston [1st Dist.] 1983, no pet.) . . . . . . . . 9

Swenney v. State, 828 S.W.2d 254, 258 (Tex.

App.—Houston [1st Dist.] 1992) . . . . . . . . . . 9

Lovejoy v. Lillie, 569 S.W.2d 501, 503 (Tex. Civ.

App. — Tyler 1978, writ ref'd n.r.e.) . . . . . . 9

Houston Chronicle Publishing Co. v. City of Houston,

531 S.W.2d 177 (Tex. Civ. App. — Houston [14thDist.] 

1975), writ ref'd n.r.e.,536 S.W.2d 559 (Tex.1976). 9 

Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417,

8 L.Ed.2nd 758 (1962) . . . . . . . . . . . . . . . 10

Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). 10

Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct.

2909, 2925, 49 L.Ed.2d 859 (1976) . . . . . . . . . 11

Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct

2861, 2866, 53 L.Ed.2d 982 (1977) . . . . . . . . . 11
v

Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 

L.Ed.2d 637 (1983) . . . . . . . . . . . . . . . . 11

Harmelin v. Michigan, 111 S.Ct. 2680 (1991),

115 L.Ed.2d 836 (1991) . . . . . . . . . . . . . . 12
vi

STATEMENT REGARDING ORAL ARGUMENT

Appellant waives oral argument. 
1

COURT OF CRIMINAL APPEALS

OF TEXAS

CORPUS CHRISTI, TEXAS

_______________________________________________________

CIPRIANO GONZALEZ APPELLANT

V.

THE STATE OF TEXAS APPELLEE

Petition in Cause No.13-14-00308-CR

Tr. Ct. No. 10-CR-2815-F

214TH District Court of Nueces County, Texas, 

and the 13th Court of Appeals, 

Corpus Christi, Texas 

_______________________________________________________ 

PETITION FOR DISCRETIONARY REVIEW

_____________________________________________________________________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

PROCEDURAL HISTORY

CIPRIANO GONZALEZ, hereinafter referred to as 

Appellant, respectfully petitions the Court of Criminal 

Appeals to review the judgment of the 13th Court of 

Appeals which had affirmed his conviction as per that 

judgment in Cause No. 13-14-00308-CR as set forth in the 
2

Appendix, attached hereto and incorporated by reference 

herein for any purpose.

STATEMENT OF THE CASE

On May 15, 2014, the court held a hearing on the 

state’s Motion to Revoke Community Supervision, (MTR), 

in this case. On the same day the Appellant pled NOT 

TRUE to an allegation that on December 3, 2013, he had

committed the offense of assault causing bodily injury. 

Appellant pled TRUE to the remaining allegations, with 

the exception of the first allegation which the state 

abandoned. (RR, Vol. 1, pp. 7-10). Then the state and the 

Appellant presented testimony to the court regarding the 

allegation of assault causing bodily injury. At the 

conclusion of the presentation of the evidence, the court 

found that all allegations were TRUE, (excluding the 

abandoned allegation), and sentenced Appellant to two (2) 

years in state jail. (RR, Vol. 1, page 40). 

Appellant perfected his appeal by filing with the 

District Clerk of Nueces County, Texas, in writing his 
3

Notice of Appeal, on May 23, 2014. (CR, Vol. 1, pp. 121-

123).

STATEMENT OF FACTS

(MTR HEARING ON THE MERITS)

Again, on May 15, 2014, the court held a hearing on 

the state’s Motion to Revoke Community Supervision, in 

this case. On the same day the Appellant pled NOT TRUE

to an allegation that on December 3, 2013 he had committed 

the offense of assault causing bodily injury. Appellant 

pled TRUE to the remaining allegations, with the 

exception of the first allegation which the state 

abandoned. 

During the MTR hearing in this case, the state called 

several witnesses in an effort to prove the allegation 

of assault causing bodily injury.

The first witness called by the state was Noel Perez, 

who testified as follows: that on December 3, 2013 at 

about 8:30 P.M. he was gathering up tools from his work 

site, when suddenly (and it appears from out of the blue) 

he was surrounded by Appellant and several other men; 

that next he recalled his “crawling on the floor trying 
4

to get up” after the alleged assailants surrounded him 

and allegedly struck him; that in his testimony (and 

after some prompting by the state) he suddenly recalled 

Appellant being one of the men “kicking” him, though 

according to his testimony, Appellant was not the first 

person to hit him; that it was his opinion though that 

Appellant had hit him; that all these men apparently hit 

and kicked him; that they finally stopped assaulting him

and left him on the ground; that this assault had caused

him pain; that he had worked on this job under Appellant; 

that he had made an additional and separate agreement

with the contractor (which excluded Appellant) for extra 

pay since it would then take longer to complete the job 

than anticipated under the original agreement; that this 

extra money would go to him and another person he had 

hired to help him complete the job, and not to Appellant; 

and, that he was a tall man of six feet, five inches. 

(RR, Vol. 1, pp. 10-26).

Finally, the state called its second and last 

witness, Lucy Rodriguez, who testified as follows: that 

she witnessed the assault on Noel Perez; and, that she 
5

saw four men kicking him, including the Appellant. (RR, 

Vol. 1, pp. 27-30).

The state rested.

Thereafter, the Appellant called Pedro Gonzalez, who 

testified as follows: that he was Appellant’s brother; 

that he was at the scene of the altercation; that the 

Appellant was there to recover the keys to the building 

they were repairing; that it was Noel Perez himself, (six 

feet, five inches tall), who came charging at the 

Appellant with a five (5) foot scraper; that a person by 

the first name of “Jerry” appeared and attempted to stop 

Mr. Perez from injuring Appellant; that the fight was 

actually between “Jerry” and Noel; and, that neither he 

nor Appellant struck Mr. Perez. (RR, Vol. 1, pp. 31-39).

The Appellant rested. 

FIRST GROUND FOR REVIEW

THE COURT OF APPEALS ERRED WHEN IT FAILED TO FIND THAT 

THE EVIDENCE INTRODUCED DURING THE MTR HEARING 

REGARDING THE ALLEGATION OF ASSAULT CAUSING BODILY 

INJURY WAS FACTUALLY INSUFFICIENT TO SUPPORT THE 
6

COURT’S FINDING BY A PREPONDERANCE OF THE EVIDENCE THAT 

SUCH ALLEGATION WAS TRUE.

SUMMARY OF THE ARGUMENT

There was insufficient evidence presented at the MTR 

hearing to sustain a finding by a preponderance of the 

evidence by the trial judge that Appellant did, in fact, 

commit the offense of assault causing bodily injury since 

there was conflicting testimony regarding the true 

initiator and etiology of this confrontation.

ARGUMENT AND AUTHORITIES

 In this particular case, this Court Criminal of 

Appeals will note that there was contradicting evidence 

that Appellant committed the alleged assault against Noel 

Perez. The victim’s testimony itself was confusing since 

he recalled only “crawling on the floor” after the 

alleged assailants came from out of the blue and 

surrounded him and allegedly assaulted him. Then 

suddenly, (after being prompted by the state), he 

recalled Appellant being one of the men “kicking” him. 
7

It would appear from Mr. Perez’s testimony that he was 

anxious to deflect any blame for the assault from 

himself! Furthermore, Appellant’s brother related to the 

court that a man named “Jerry” intervened in an effort 

to fend off an initial assault perpetrated by the Mr. 

Perez, during the assault in question. These conflicting 

versions of who became the aggressor were sufficient in 

and of themselves to rebut the trial court’s conclusion 

that Appellant was a party to this confrontation. 

Accordingly, Appellant contends that the state failed to 

prove by a preponderance of the evidence, that the 

offense of assault causing bodily injury was TRUE and 

that such conflicting evidence should have caused a 

reasonable person, including the judge, to hesitate in 

concluding that Appellant was the aggressor and initiator 

of the assault. 

SECOND GROUND FOR REVIEW

THE COURT OF APPEALS ERRED WHEN IT FAILED TO

FIND THAT THE PUNISHMENT ASSESSED BY THE JUDGE 

DURING SENTENCING PHASE OF THE MTR WAS 
8

DISPROPORTIONATE TO THE SERIOUSNESS OF THE 

ALLEGED OFFENSE, ALL IN VIOLATION OF THE EIGHTH 

AND FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUTION.

SUMMARY OF THE ARGUMENT

It is Appellant’s position that the evidence 

presented at the MTR hearing did not justify the 

trial judge’s revoking his community supervision 

and assessing the maximum punishment for a state 

jail felony since the court should not have found 

the assault allegation true, and since the 

remaining allegations (to which he had pled 

TRUE), were “technical” in nature and therefore 

did not justify revoking Appellant’s community 

supervision and sentencing him to two (2) years 

in a state jail.

ARGUMENT AND AUTHORITIES

Appellant notes that under the previous rulings of 

the Texas Court of Criminal Appeals, an appeal prefaced 
9

on the grounds of disproportionate punishment may be 

frivolous. Harris v. State, 656 S.W.2d 481, 486 

(Tex.Crim.App.1983); Combs v. State, 652 S.W.2d 804, 806 

(Tex. App. -- Houston [1st Dist.] 1983, no pet.). 

However, Appellant raised this specific issue to ensure 

there was no waiver of an anticipatory claim of 

disproportionate punishment in Federal Court. See

Swenney v. State, 828 S.W.2d 254, 258 (Tex. App.—Houston 

[1st Dist.] 1992). Clearly, it was within a court's 

power to review a sentence imposed by judge or jury and 

to determine whether such sentence passed constitutional 

muster, even if no objections were made during trial. 

Lovejoy v. Lillie, 569 S.W.2d 501, 503 (Tex. Civ. App. —

Tyler 1978, writ ref'd n.r.e.); Houston Chronicle 

Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. 

Civ. App. — Houston [14th Dist.] 1975), writ ref'd n.r.e., 

536 S.W.2d 559 (Tex. 1976). Accordingly, the issue was 

one of PROPORTIONALITY.

The Eighth Amendment to the Constitution of the 

United States provides as follows: "Excessive bail shall 

not be required, nor excessive fines imposed, nor cruel 
10

and unusual punishment inflicted." Robinson v. 

California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2nd 758 

(1962), held that the Eighth Amendment was applicable 

to punishments imposed by state courts through the Due 

Process Clause of the Fourteenth Amendment of the United 

States Constitution. Marbury v. Madison, 1 Cranch 137, 

2 L.Ed. 60 (1803), concluded that it was within the powers 

and duties of the judicial branch of our government to 

determine what was the law and whether or not a law was 

constitutional. Clearly, it was within a court's power 

to review a sentence imposed by judge or jury and to 

determine whether such sentence passed constitutional 

muster. Though the judge assessed punishment at two (2) 

years in a state jail facility, this did not mean ipso

facto that any sentence within the range of punishment 

was exempt from constitutional scrutiny simply because 

that was what a legislative body authorized courts and 

juries to impose -– obviously such an argument is 

circular in its construction. And if such were the case, 

then any state legislature could with complete impunity 

pass Draconian laws, for example, that made overtime 
11

parking an offense punishable by life imprisonment.

In previous decisions the United States Supreme Court 

concluded that the Eighth Amendment's bar to cruel and 

unusual punishments was an evolving standard which 

proscribed needless or barbaric infliction of pain and 

sanctions which were disproportionate to the severity of 

a crime. Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 

2909, 2925, 49 L.Ed.2d 859 (1976); Coker v. Georgia, 433 

U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977). 

Accordingly, in a 1983 U.S. Supreme Court decision, the 

justices set forth certain standards by which appellate 

courts might objectively review court or jury assessed 

punishments to determine if they violated the 

proscriptions of the Eighth Amendment. Solem v. Helm, 463 

U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). The 

objective standards set forth in Solem were as follows:

1. "the gravity of the offense and the harshness 

of the penalty," 463 U.S., at 290-291, 103 S.Ct., 

at 3009-3010;
12

2. "the sentences imposed on other criminals in 

the same jurisdiction," id., at 291, 103 S.Ct., 

at 3010; and,

3. "the sentences imposed for commission of the 

same crime in other jurisdictions," id. at 219-

292, 103 S.Ct., at 3010. 

However, in a U.S. Supreme Court decision, the Justices, 

by a 5-4 majority, chose to limit the application of the 

standards in Solem and stated that there was no 

proportionality guarantee (possibly with the exception 

of death penalty cases) in the Eight Amendment. Harmelin 

v. Michigan, 111 S.Ct. 2680 (1991), 115 L.Ed.2d 836 

(1991). Regardless, it was Appellant's position that the 

majority in Harmelin recognized that indeed the Eighth 

Amendment provided a limited proportionality component 

when Justice Scalia stated as follows:

"We think it enough that those who framed 

and approved the Federal Constitution chose, for 

whatever reason, not to include within it the 

guarantee against disproportionate sentences 

that some State Constitutions contained. It is 
13

worth noting, however, that there was good 

reason for that choice -- a reason that 

reinforces the necessity of overruling Solem. 

While there are relatively clear historical 

guidelines and accepted practices that enable 

judges to determine which modes (emphasis added) 

of punishment are "cruel and unusual," 

proportionality (emphasis added) does not lend 

itself to such analysis. Neither congress nor 

any state legislature has ever set out with the 

objective of crafting a penalty that is 

"disproportionate," yet as some of the examples 

mentioned above indicate, many enacted 

dispositions seem to be so -- because they were 

made for other times or other places, with 

different social attitudes, different criminal 

epidemics, different public fears, and different 

prevailing theories of penology. That is not to 

say that there are no absolutes; one can 

imagine extreme examples that no rational 

person, in any time or place could accept. But 
14

for the same reason these examples are easy to 

decide, they are certain never to occur

(emphasis added). Harmelin, at 111 S.Ct., at 

2696-2697.

Appellant concedes that Harmelin, may have narrowed, 

though not necessarily eliminated, the proportionality 

component of the Eighth Amendment. However, Harmelin did 

not provide any new objective standards by which to 

review and reverse those "examples" which "are easy to 

decide" other than Justice Kennedy's conclusion that the 

first objective standard in Solem (the gravity of the 

offense and the harshness of the penalty) shall be the 

initial hurdle that a reviewing court must overcome 

before ever considering the remaining standards two and 

three in Solem. Harmelin, 111 S.Ct., at 2707. 

Accordingly, Appellant contends that in reality Harmelin

has no language prohibiting appellate courts from 

reviewing the constitutionality of a particular 

punishment in the light of concepts of proportionality 

set forth in Solem. To contend now that proportionality 

was now so narrow that it was without meaning (with the 
15

exception of death penalty cases, Harmelin at 111 S.Ct. 

at 2701), that lawmakers may run amok enacting 

reactionary legislation, and that judges or juries may 

impose sentences with absolute immunity from judicial 

review, was difficult to comprehend when you consider our 

national and historical deference to fundamental 

governmental concepts of separation of powers, and checks 

and balances.

The concept of proportionality was ancient and 

fundamental to the jurisprudence of emerging world 

civilizations. The concept of limiting the penal sanction 

through proportionality predates Magna Carta or English 

Common Law and can be found in the Code of Hammurabi

which placed limits on punishment by proscribing an eye 

for an eye, a tooth for a tooth, or more concisely: no 

more than an eye for an eye, and no more than a tooth for 

a tooth. Accordingly, Appellant contends that despite 

the 5-4 decision in Harmelin, the appellate courts should 

examine case law that attempted to provide rational 

standards for reviewing particular punishments in 

determining whether particular penal sanctions were 
16

disproportionate to the severity of a particular crime. 

As previously mentioned, the United States Supreme 

Court in Solem established three major factors for 

consideration and application in determining whether a 

punishment violated the Eighth Amendment's "cruel and 

unusual" proscriptions. In Appellant's particular case, 

the punishment assessed by the judge at two (2) years in

a state jail facility, was excessive and clearly should 

be reserved for more heinous offenders so that such a 

sanction was meaningful under concepts of retribution and 

deterrence. 

If this Honorable Court of Criminal Appeals applied 

the facts of Appellant's case to those three standards 

set forth in Solem it could move through the first 

threshold standard (the gravity of the offense and the 

harshness of the penalty -- now required by Harmelin); 

find that proportionality was an issue; conclude that 

statistically intrastate sentences, from judges or 

juries, would not be as harsh; and, further conclude that 

the same intrastate statistics would apply to interstate 

sentences.
17

The punishment assessed by the judge at two (2) years 

in a state jail facility, violated the punishment 

proscriptions of the Eighth Amendment of the United 

States Constitution as applied to the various States by 

the Fourteenth Amendment, and warrants at least a new 

punishment hearing for Appellant in the trial Court. 

PRAYER FOR RELIEF

For ALL the reasons stated above, Appellant 

respectfully requests that this honorable Court Criminal 

of Appeals reverse the trial court’s judgment, set aside 

the sentence of Appellant, and remand the case back to 

the trial court for a new MTR hearing; or, in the 

alternative, remand the case back to the same trial court 

for a new sentencing hearing on the MTR; or, reverse the 

sentencing portion of the trial and render a judgment

ordering Appellant returned to community supervision 

under those terms and conditions to be set forth by the 

trial court.
18

RESPECTFULLY SUBMITTED:

/S/ Randall E. Pretzer_ 

Randall E. Pretzer, PLLC

Attorney for Appellant

State Bar No. 16279300

P.O. Box 18993

Corpus Christi, Texas 78480

BUS: (361) 883-0499

FAX: (361) 883-2290

E-MAIL: repretzer@gmail.com

CERTIFICATE OF SERVICE 

I certify that a true and correct copy of 

Appellant's Brief was delivered to the Nueces County 

District Attorney’s Office, ATTN: Appellate Division, 901 

Leopard Street, Corpus Christi, Texas 78401, by handdelivery, and to The State Prosecuting Attorney, P.O. Box 

13046, Austin, Texas 78711-3046, on July 22, 2015, by 

first class mail.

 /S/ Randall E. Pretzer

Randall E. Pretzer, PLLC 

Attorney for Appellant
19

CERTIFICAT OF COMPLIANCE

UNDER RULE 9.4 (i), TRAP

Please be advised that in compliance with Texas Rule 

of Appellate Procedure 9.4(i)(3), as amended, I certify 

that the number of words in this brief, excluding those 

matters listed in Rule 94 (i)(1), is 2,591 as per the 

computer count. 

 /S/ Randall E. Pretzer_______ 

Randall E. Pretzer, PLLC

Attorney for Appellant
20

APPENDIX
21

NUMBERS 13-14-00308-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

CIPRIANO GONZALEZ, Appellant, 

 v.

THE STATE OF TEXAS, Appellee. 

 

On appeal from the 214th

 District Court of 

 Nueces County, Texas

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes

Memorandum Opinion by Justice Perkes

Pursuant to a plea bargain agreement, appellant Cipriano Gonzalez pleaded guilty to burglary of a building, 

a state jail felony. See TEX. PENAL CODE ANN. § 30.02 (West, Westlaw through Ch. 46, 2015 R.S.). The trial 

court assessed appellant’s punishment at two years’ imprisonment, suspended sentence of confinement, and placed 

appellant on community supervision for a period of four years.1 The State subsequently moved to revoke appellant’s 

community supervision, alleging four violations. Following an evidentiary hearing, the trial court found the 

allegations true, revoked appellant’s community supervision, and sentenced him to two years' imprisonment. By two 

issues, appellant argues: (1) the evidence was insufficient to support the trial court’s finding that he committed the 

offense of assault causing bodily injury; and (2) the punishment assessed was disproportionate to the seriousness of 

the offense in violation of the Eighth and Fourteenth Amendments to the United States Constitution. See U.S.

CONST. 

 

1 During the term, the trial court extended the period of community supervision to five years. 
22

amend. VIII, XIV. We affirm.

BACKGROUND

The State filed a motion to revoke appellant’s community supervision alleging the following violations: (1) 

committing the offense of assault causing bodily injury; (2) failing to report to his probation officer; (3) failing to pay 

restitution and supervisory fees; and (4) failing to pay for and complete the Felony Impact Panel program. At the 

revocation hearing, appellant pleaded true to the second, third, and fourth allegations and “not true” to the first 

allegation. 

During the hearing, victim Noel Perez testified concerning the alleged assault. Perez stated that he worked with 

appellant on an apartment remodeling project. Perez recalled gathering his tools at the end of a work-day, when he 

was suddenly surrounded by appellant and three other men. He remembered being struck by one of the men and then 

“crawling on the floor trying to get up,” while all four of the individuals stomped and kicked him repeatedly. Perez 

testified appellant kicked him in the face while he was on the ground. Perez suffered bumps to his head, scrapes on 

his knees, and injuries to his feet. Another witness testified she saw appellant kick Perez while he was on the ground. 

Appellant’s brother testified that he was present during the altercation, but that it was another individual—not 

appellant—who fought with Perez. At the conclusion of the hearing, the trial court found the alleged violations true, 

revoked appellant’s community supervision, and sentenced appellant to two years’ imprisonment. This appeal 

followed.

SUFFICIENCY OF EVIDENCE

By his first issue, appellant argues that the evidence was insufficient concerning the allegation of assault 

causing bodily injury. Appellant maintains that there was conflicting evidence whether appellant was the aggressor 

and initiator of the assault. 

 

A. Standard of Review 

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). At a probation revocation proceeding, the State bears the burden of 

showing by a preponderance of the evidence that the defendant committed a violation of his community supervision 

conditions. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993) (en banc); Jones v. State, 112 S.W.3d 

266, 268 (Tex. App.—Corpus Christi 2003, no pet.). If the State does not meet its burden of proof, the trial court 

abuses its discretion in revoking the community supervision. Cardona v. State, 665 S.W.2d 492, 493–94 (Tex. 

Crim. App. 1984). 

Proof by a preponderance of the evidence of any one of the alleged violations of the community supervision 

conditions is sufficient to support a revocation order. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 

[Panel Op.] 1980); Herrera v. State, 951 S.W.2d 197, 199 (Tex. App.—Corpus Christi 1997, no pet.). Further, a 

plea of true alone is sufficient to support revocation of community supervision. See Cole v. 

State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979); Perry v. State, 367 S.W.3d 690, 693 (Tex. App.—Texarkana 

2012, no pet.); Jones, 112 S.W.3d at 268. When multiple violations are found by the trial court, we will affirm the 

order revoking community supervision if the State proved any violation by a preponderance of the evidence. 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.”).

 

B. Analysis 

Appellant pleaded true to the allegations of: failing to report to his probation officer; failing to pay restitution 

and supervisory fees; and failing to pay for and complete the Felony Impact Panel program. A failure to report 

violation provides a sufficient basis for the trial court's decision to revoke community supervision. See, e.g., 

Flournoy v. State, 589 S.W.2d 705, 707, 709–10 (Tex. Crim. App. [Panel Op.] 1979) (no abuse of discretion to 

revoke for failing to report for nine months over a period of about four years); Greer v. State, 999 S.W.2d 484, 489 

(Tex. App.—Houston [14th Dist.] 1999, pet. denied) (no abuse of discretion to revoke for failing to report for a single 

month); Guerra v. State, 664 S.W.2d 412, 413 (Tex. App.—Corpus Christi 1983, no pet.) (no abuse of discretion to 

revoke for failing to report for three consecutive months). Although appellant argues the violations—other than assault 
23

causing bodily injury—are minor, 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.). Because appellant’s plea of true to failing to report is sufficient to support revocation, we need not address 

appellant’s contentions concerning the assault causing bodily injury allegation. See Smith, 286 S.W.3d at 342. We 

overrule appellant's first issue. 

SENTENCING

By his second issue, appellant argues that the sentence is disproportionate to the seriousness of the offense 

in violation of the Eighth and Fourteenth Amendments to the United States Constitution. See U.S. CONST. amend. 

VIII, XIV. To preserve a complaint of disproportionate sentencing, the defendant must make a timely, specific 

objection in the trial court or raise the issue in a motion for new trial. TEX. R. APP. P. 33.1; Heidelberg v. State, 

144 S.W.3d 535, 542–43 (Tex. Crim. App. 2004); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.—Corpus 

Christi 1989, pet. ref'd); see also Montemayor v. State, No. 13–10–00292–CR, 2011 WL 1844449, at *3 (Tex. 

App.—Corpus Christi March 17, 2011, no pet.) (mem. op., not designated for publication). Almost every right, 

constitutional or statutory, may be waived by the failure to object. Broxton v. State, 909 S.W.2d 912, 918 (Tex. 

Crim. App. 1995); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref'd). Appellant did not 

object to his sentence at the hearing, and he did not file a motion for new trial asserting any constitutional or statutory 

complaints concerning his sentence. Appellant failed to preserve this issue for review on appeal. See TEX. R. APP.

P. 33.1. We overrule appellant's second issue. 

IV. CONCLUSION

We affirm the trial court’s judgment. 

GREGORY T. PERKES 

 Justice 

Do not 

publish. 

TEX. R.

APP. P. 

47.2(b). 

Delivered and 

filed the 9th day 

of July, 2015.