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In The

Court of Appeals

Ninth District of Texas at Beaumont

___________________

NO. 09-14-00195-CR

___________________

JOE FREDRICK HAWKINS, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 252nd District Court

Jefferson County, Texas

Trial Cause No. 13-16946

__________________________________________________________________

MEMORANDUM OPINION

Appellant Joe Fredrick Hawkins appeals from the revocation of his deferred 

adjudication community supervision and imposition of sentence for assault 

involving family violence. In three points of error, Hawkins argues that his 

sentence is constitutionally disproportionate and unreasonable in violation of the 

United States Constitution and the Texas Constitution and that the evidence is 

legally insufficient to support the trial court’s finding that he committed a violation 

of his community supervision. We affirm the judgment of the trial court. 
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I. Background

Pursuant to a plea bargain agreement, Hawkins pled guilty to assault of a 

family member by impeding breathing or circulation, a third-degree felony. The 

trial court found the evidence sufficient to find Hawkins guilty, but deferred further 

proceedings without entering an adjudication of guilt, placed Hawkins on 

community supervision for three years, and ordered Hawkins to pay a fine of $500. 

Thereafter, the State filed a motion to revoke Hawkins’ unadjudicated 

community supervision, asserting that Hawkins violated four conditions of his 

community supervision. On April 14, 2014, the trial court held a hearing on the 

State’s motion to revoke. During the hearing, the State abandoned count one of the

motion. Hawkins pled “true” to count two of the motion, but pled “not true” to 

counts three and four.1 Following the entry of Hawkins’ pleas, the trial court reset 

the remainder of the hearing for two weeks to allow the State to present evidence 

as to counts three and four. 

 1

During the April 14, 2014 revocation hearing, the trial court mistakenly 

referred to count two of the motion to revoke as “Count 1” and referred to count 

three of the motion as “Count 2[.]” However, the record reflects that the trial court 

read the actual substance of counts two and three aloud immediately before 

Hawkins entered his plea to each count, thus making it clear which count the trial 

court was actually referring to as Hawkins entered each plea. Hawkins does not 

argue that he was confused or otherwise harmed by the trial court’s inaccurate 

reference to counts two and three during the April 14, 2014 revocation hearing. 

Therefore, we do not address this issue on appeal. See Tex. R. App. P. 38.1(i). 
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On April 28, 2014, the trial court resumed the hearing on the State’s motion 

to revoke. After hearing evidence, the trial court found count three to be true.2

 

Based on this finding, as well as Hawkins’ plea of true to count two, the trial court 

found the evidence sufficient to establish that Hawkins violated the conditions of 

his community supervision. The trial court revoked Hawkins’ community 

supervision, adjudicated him guilty of assault of a family member by impeding 

breathing or circulation, and sentenced him to four years in prison. Hawkins timely 

filed a notice of appeal. 

II. Sentence

In Hawkins’ first and second points of error, he argues that the four-year 

sentence assessed by the trial court is unconstitutionally disproportionate and 

unreasonable in violation of the Eighth Amendment of the United States 

Constitution and Article I, section 13 of the Texas Constitution. See U.S. CONST. 

amend. VIII; Tex. Const. art. I, § 13.

3 The State argues that Hawkins waived these 

points of error by failing to timely object. 

 2

The State abandoned count four at the beginning of the April 28, 2014 

hearing. 

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Hawkins also argues that the trial court violated his due process and equal 

protection rights under the United States and Texas Constitutions. Hawkins cites 

no relevant authority to support these arguments. See Tex. R. App. P. 38.1(i).
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To preserve error for appellate review, the complaining party must present a 

timely and specific objection to the trial court and obtain a ruling. Tex. R. App. P. 

33.1(a). Generally, the failure to specifically object to an alleged disproportionate 

or cruel and unusual sentence in the trial court or in a post-trial motion waives any 

error for purposes of appellate review. See Rhoades v. State, 934 S.W.2d 113, 120 

(Tex. Crim. App. 1996); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d). The record reflects that Hawkins did not raise 

any objections to his sentence at the time it was pronounced or in a post-trial 

motion. Therefore, we conclude that Hawkins waived any complaint that his 

sentence was unconstitutionally disproportionate or unreasonable for purposes of 

appellate review. See Tex. R. App. P. 33.1(a).

However, even if Hawkins had properly preserved his complaints for our 

review, his argument that his sentence is disproportionate and unreasonable under 

the Eighth Amendment of the United States Constitution and Article I, section 13 

of the Texas Constitution is without merit.4 Texas courts have traditionally held 

that as long as the punishment assessed falls within the punishment range 

 4

Hawkins does not argue that Article I, section 13 of the Texas Constitution 

provides any greater or different protection than the Eighth Amendment of the 

United States Constitution. Therefore, we examine Hawkins’ argument solely 

under the Eighth Amendment. See Rivera v. State, 363 S.W.3d 660, 678 n. 12 

(Tex. App.—Houston [1st Dist.] 2011, no pet.).
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prescribed by the Legislature, the punishment is not excessive or unconstitutionally 

cruel or unusual under either Texas law or the United States Constitution. See 

Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Diamond v. State, 

419 S.W.3d 435, 440 (Tex. App.—Beaumont 2012, no pet.); Kirk v. State, 949 

S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d). Hawkins’ four-year 

sentence is within the statutory range authorized for the crime of assault of a 

family member by impeding breathing or circulation. See Tex. Penal Code Ann. § 

12.34 (West 2011) (providing that the punishment range for a third-degree felony 

is imprisonment for a term of not less than two years or more than ten years and a 

fine of up to $10,000); § 22.01(b)(2)(B) (West Supp. 2014) (providing that the 

offense of assault of a family member by impeding breathing or circulation is a 

third-degree felony).

However, even when a sentence falls within the statutory range of 

punishment, it may nevertheless be excessive in violation of the Eighth 

Amendment if it is grossly disproportionate to the offense for which the defendant 

has been convicted. See Reynolds v. State, 430 S.W.3d 467, 471 (Tex. App.—San 

Antonio 2014, no pet.); Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—

Texarkana 1999, no pet.). To make this determination, “[w]e initially make a 

threshold comparison of the gravity of the offense against the severity of the 
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sentence and then ask whether the sentence is grossly disproportionate to the 

offense.” Jackson, 989 S.W.2d at 846. We judge the gravity of the offense in light 

of the harm caused or threatened to the victim or society and the culpability of the 

offender. Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. 

ref’d). If gross disproportionality is found, we then compare the sentence to 

sentences received for similar crimes in this and other jurisdictions. Jackson, 989 

S.W.2d at 846.

The record reflects that Hawkins pled guilty to felony assault of a family 

member by impeding breathing or circulation. Hawkins does not argue or point to 

any evidence in the record explaining how the four-year sentence assessed by the 

trial court—which is on the lower end of the applicable punishment range—is 

grossly disproportionate to the violent assault offense to which he admitted 

culpability and for which he was ultimately convicted. While Hawkins argues that 

the trial court failed to consider certain factors, outlined in article 37.07, section 3 

of the Texas Code of Criminal Procedure, that could have mitigated against his 

sentence, the record does not support his argument. See Tex. Code Crim. Proc. 

Ann. art. 37.07, § 3 (West Supp. 2014). The trial court did not exclude any 

evidence of mitigating circumstances during the revocation hearings, and there is 

nothing in the record to indicate that the trial court otherwise failed or refused to 
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consider any evidence or information in violation of article 37.07, section 3. 

Further, Hawkins failed to introduce any evidence of sentences imposed for similar 

offenses in this or other jurisdictions for which we can make a reliable 

comparison.5 See Jackson, 989 S.W.2d at 846. We conclude, therefore, that 

Hawkins has failed to make a showing that his sentence was grossly 

disproportionate to the offense committed. See East v. State, 71 S.W.3d 774, 777 

(Tex. App.—Texarkana 2002, no pet.).

Hawkins also complains that the trial court considered “unverifiable facts” 

and “matters not presented in evidence,” including his criminal record, when it 

assessed his sentence. Hawkins, however, did not object during the revocation 

hearing or in a post-trial motion to the trial court’s alleged consideration of 

unverifiable facts or matters not in evidence when it assessed his sentence, nor did 

he object at any time to the sentence itself. Hawkins has therefore waived this 

complaint for purposes of appellate review. See Tex. R. App. P. 33.1(a); see also 

Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (“As a general 

rule, an appellant may not assert error pertaining to his sentence or punishment 

where he failed to object or otherwise raise such error in the trial court.”).

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Hawkins asks this Court to abate the appeal for a hearing to allow him to 

gather information regarding sentences imposed for similar offenses by criminal 

defendants in Texas and other jurisdictions. Hawkins cites no applicable authority 

to support this proposition. See Tex. R. App. P. 38.1(i).
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We hold that Hawkins failed to preserve the complaints that he makes about 

his sentence for our review on appeal. We overrule Hawkins’ first and second 

points of error.

III. Sufficiency of the Evidence to Support Adjudication of Guilt

In his third point of error, Hawkins argues that the evidence is legally 

insufficient to support the trial court’s finding that Hawkins violated a condition of 

his community supervision by failing to provide verification that he attended an 

anger management program as ordered by the court (count three of the State’s 

motion to revoke). 

An appellate court’s review of an order adjudicating guilt is generally 

limited to a determination of whether the trial court abused its discretion. See Tex. 

Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2014) (“The determination to 

proceed with an adjudication of guilt on the original charge is reviewable in the 

same manner as a revocation hearing conducted under Section 21 in a case in 

which an adjudication of guilt had not been deferred.”); Rickels v. State, 202 

S.W.3d 759, 763 (Tex. Crim. App. 2006) (“‘Appellate review of an order revoking 

probation is limited to abuse of the trial court’s discretion.’”) (quoting Cardona v. 

State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)). In a hearing to revoke 

deferred adjudication community supervision, the State has the burden to show by 
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a preponderance of the evidence that the defendant committed a violation of the 

conditions of his community supervision. See Rickels, 202 S.W.3d at 763; Cobb v. 

State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The evidence meets this 

standard when the greater weight of the credible evidence creates a reasonable 

belief that the defendant has violated a condition of his community supervision. 

Rickels, 202 S.W.3d at 763-64 (quoting Scamardo v. State, 517 S.W.2d 293, 298 

(Tex. Crim. App. 1974)); Duncan v. State, 321 S.W.3d 53, 57 (Tex. App.—

Houston [1st Dist.] 2010, pet. ref’d).

We must examine the evidence in the light most favorable to the trial court’s 

order. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). In 

determining whether the allegations in the motion to revoke are true, the trial court 

is the sole trier of facts, the judge of the credibility of the witnesses, and the arbiter 

of the weight to be given to the testimony. Taylor v. State, 604 S.W.2d 175, 179 

(Tex. Crim. App. 1980); Trevino v. State, 218 S.W.3d 234, 240 (Tex. App.—

Houston [14th Dist.] 2007, no pet.). To support the trial court’s order revoking 

community supervision, the State need only establish one sufficient ground for 

revocation. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).

At the April 14, 2014 revocation hearing, Hawkins pled “true” to the State’s 

allegation, asserted in count two of the State’s motion to revoke, that he had 
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violated a condition of his community supervision by failing to report to the 

Jefferson County Community Supervision and Corrections Department during the 

month of February 2014. A plea of true to any alleged violation of the terms of a 

defendant’s community supervision, standing alone, is sufficient to support 

revocation of community supervision. See Cole v. State, 578 S.W.2d 127, 128 

(Tex. Crim. App. 1979); Jones v. State, 112 S.W.3d 266, 268 (Tex. App.—Corpus 

Christi 2003, no pet.). Therefore, Hawkins’ plea of true to the State’s allegation 

that he failed to report to the Jefferson County Community Supervision and 

Corrections Department during the month of February 2014, by itself, is sufficient 

to support the trial court’s order revoking community supervision and adjudicating 

him guilty of the underlying assault offense. See Cole, 578 S.W.2d at 128; Jones, 

112 S.W.3d at 268.

However, even if Hawkins had not entered a plea of true to the allegations in 

count two, we find the evidence sufficient to support the trial court’s finding that 

the allegations in count three of the motion to revoke were true. Hawkins’ deferred 

adjudication order required Hawkins to “[a]ttend rehabilitation, treatment, 

residential programs, and counseling as directed by [his] Community Supervision 

Officer, pay for said treatments as directed, and provide verification of such.” In its 

motion to revoke, the State alleged in count three that Hawkins violated his 
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deferred adjudication order by failing to provide verification that he attended anger 

management classes. During the April 28, 2014 adjudication hearing, the State 

called Gatta Harmon, Hawkins’ community supervision officer, to testify. Harmon

testified that after Hawkins was placed on community supervision, Harmon asked 

the trial court to sign an order requiring Hawkins to attend anger management 

classes. Harmon testified that in response to his request, the trial court signed an 

order on January 19, 2014 requiring Hawkins to attend anger management classes. 

Harmon testified that he could not recall if he showed the order to Hawkins after 

the trial court signed it. However, Harmon explained that he showed the order to 

Hawkins before he sent it to the trial court to sign and that Hawkins personally 

signed the order himself. Harmon testified that Hawkins was also told “several 

times that he needed to attend the [anger management classes] as soon as we send 

the order to the Court for approval” and that “he was expected to attend the class.” 

Harmon testified that despite these instructions, Hawkins failed to provide 

verification that he attended the anger management classes as directed. 

Hawkins’ deferred adjudication order required Hawkins to attend treatment 

programs as directed by his community supervision officer and to provide 

verification of his attendance. The trial court could have reasonably found that 

Hawkins was directed to attend an anger management program, that Hawkins had 
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notice that he was required to attend that program and to provide verification of his 

attendance, and that Hawkins failed to provide the required verification. Viewing 

the evidence in the light most favorable to the trial court’s order, we find that the 

evidence was sufficient to establish, by a preponderance of the evidence, that 

Hawkins failed to provide verification that he attended rehabilitation, treatment, 

residential programs, and counseling as directed by his community supervision 

officer, in violation of a condition of his deferred adjudication order. See Rickels, 

202 S.W.3d at 763-64; Garrett, 619 S.W.2d at 174. Accordingly, we conclude that 

there was legally sufficient evidence to support the trial court’s finding that the 

allegation in count three of the State’s motion to revoke was true. In light of this 

conclusion, as well as Hawkins’ plea of true to count two, we find that the trial 

court did not abuse its discretion in revoking Hawkins’ community supervision and 

adjudicating his guilt. See Rickels, 202 S.W.3d at 763. We overrule Hawkins’ third 

point of error. 

Having overruled each of Hawkins’ points of error, we affirm the judgment 

of the trial court. 

AFFIRMED .

_________________________

 CHARLES KREGER

 Justice
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Submitted on November 24, 2014

Opinion Delivered May 27, 2015

Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.