Nos. 13-14-00677-CR, 13-14-00678-CR, & 13-14-00679-CR

IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT OF TEXAS

AT CORPUS CHRISTI

________________________________________

JOHN DOUGLAS HOUSTON,

Appellant,

VS.

THE STATE OF TEXAS,

Appellee.

________________________________________

On Appeal from the 94th District Court

of Nueces County, Texas

Trial Court Numbers 12-CR-2404-C, 13-CR-0268-C,

& 13-CR-3675-C

________________________________________

BRIEF FOR THE STATE

________________________________________

 James D. Rosenkild

 State Bar No. 17279200

 Assistant District Attorney

 105th Judicial District of Texas

 901 Leopard, Room 206

 Corpus Christi, Texas 78401-3602

 (361) 888-0410

 (361) 888-0254 (fax)

 james.rosenkild@co.nueces.tx.us

 Attorney for Appellee

ACCEPTED

13-14-00677-CR

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

7/27/2015 6:04:57 PM

CECILE FOY GSANGER

CLERK

 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 7/27/2015 6:04:57 PM CECILE FOY GSANGER Clerk
TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL.. . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . 2

COUNTER-STATEMENTS OF ISSUES PRESENTED FOR REVIEW. . . 2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Reply to Appellant's Issue Presented for Review No. 1:

Viewing the evidence in the light most favorable to the trial

court’s ruling, and giving deference to that court as the sole

trier of facts, the credibility of the witnesses, and the weight

to be given to the evidence presented, it cannot be said that

such court abused its discretion in finding that the greater

weight of the credible evidence before it created a reasonable

belief that Appellant violated a condition of his community

supervision, as his attorney conceded. . . . . . . . . . . . . . . . . . . . . . . . 13

B. Reply to Appellant's Issue Presented for Review No. 2:

The trial court did not assess punishment that was so

disproportionate to the offenses for which Appellant had been

found guilty as to violate the federal prohibition against cruel

and unusual punishment, however because Appellant did not

raise this complaint in the trial court, this issue was not

preserved for appellate review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

ii
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iii
IDENTITY OF PARTIES AND COUNSEL

The following are parties to the trial court's judgments and their

counsel in the trial court:

1) John Douglas Houston, 1701 or 2701 Victoria Park Dr., Corpus

Christi, TX 78414, represented by Richard Derrick Zapata, P.O. Box

867, Sinton, TX 78387; and,

2) The State of Texas, represented by Leo Henry Gonzalez of the

Nueces County District Attorney's Office, 901 Leopard, Rm. 206,

Corpus Christi, TX 78401-3602.

The following are appellate counsel:

1) Randall E. Pretzer, P.O. Box 18993, Corpus Christi, TX 78480-

8993; and,

2) James D. Rosenkild of the Nueces County District Attorney's

Office, 901 Leopard, Rm. 206, Corpus Christi, TX 78401-3602.

iv
INDEX OF AUTHORITIES

CASES PAGES

Cann v. State, Nos. 13-13-00151-CR & 13-13-00152-CR, 2014 WL

4243666, 2014 Tex. App. LEXIS 9374 (Tex. App. – Corpus Christi

Aug. 25, 2014, pet. ref’d) (mem. op., not designated for

publication).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 n.9, 18

Chaires v. State, 704 S.W.2d 397 (Tex. App. -- Corpus Christi 1985,

no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Davila v. State, 173 S.W.3d 195 (Tex. App. -- Corpus Christi 2005,

no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Garrett v. State, 619 S.W.2d 172 (Tex. Crim. App. [Panel Op.]

1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Gutierrez v. State, Nos. 13-12-00565-CR & 13-12-00566-CR, 2014

WL 2936931, 2014 Tex. App. LEXIS 6813 (Tex. App. – Corpus

Christi June 26, 2014, no pet.) (mem. op., not designated for

publication).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Hacker v. State, 389 S.W.3d 860 (Tex. Crim. App. 2013). . . . . . . . . . . . . . 14

Harris v. State, 160 S.W.3d 621 (Tex. App. -- Waco 2005, pet.

struck).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Johnson v. State, No. 13-13-00180-CR, 2014 WL 3399818, 2014

Tex. App. LEXIS 7401 (Tex. App. – Corpus Christi July 10, 2014,

no pet.) (mem. op., not designated for publication). . . . . . . . . . . . . . . 18-19

Joseph v. State, 3 S.W.3d 627 (Tex. App. -- Houston [14th Dist.]

1999, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Moore v. State, 605 S.W.2d 925 (Tex. Crim. App. [Panel Op.] 1980). . . . . 15

Naquin v. State, 607 S.W.2d 583 (Tex. Crim. App. [Panel Op.]

1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

v
Ornelas v. State, No. 13-12-00689-CR, 2013 WL 3895358, 2013

Tex. App. LEXIS 9237 (Tex. App. – Corpus Christi July 25, 2013,

no pet.) (mem. op., not designated for publication). . . . . . . . . . . . . . . . . . 19

Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006). . . . . . . . . . . 13-14

Rickels v. State, 69 S.W.3d 775 (Tex. App. -- Corpus Christi 2002),

rev’d on other grounds, 108 S.W.3d 900 (Tex. Crim. App. 2003). . . . . . . . 15

Sanchez v. State, 603 S.W.2d 869 (Tex. Crim. App. [Panel Op.]

1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Schneider v. State, 645 S.W.2d 463 (Tex. Crim. App. 1983). . . . . . . . . . . . 18

Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . 15

Sterling v. State, 791 S.W.2d 274 (Tex. App. -- Corpus Christi 1990,

pet. ref’d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Trevino v. State, 174 S.W.3d 925 (Tex. App. -- Corpus Christi 2005,

pet. ref’d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Vela v. State, No. 13-13-00230-CR, 2014 WL 3049482, 2014 Tex.

App. LEXIS 7281 (Tex. App.– Corpus Christi July 3, 2014, no pet.)

(mem. op., not designated for publication). . . . . . . . . . . . . . . . . . . . . . 18 n.9

STATUTES AND RULES

Tex. Health & Safety Code Ann. § 481.102(6) (West 2010). . . . . . . . . . 4 n.3

Tex. Health & Safety Code Ann. § 481.115(a) (West 2010). . . . . . . . . . 4 n.3

Tex. Health & Safety Code Ann. § 481.115(d) (West 2010). . . . . . . . . . 4 n.3

Tex. Penal Code Ann. § 29.03(a)(2) (West 2011). . . . . . . . . . . . . . . . . . . 3 n.2

Tex. Penal Code Ann. § 29.03(b) (West 2011). . . . . . . . . . . . . . . . . . . . . 3 n.2

vi
Tex. Penal Code Ann. § 32.21(b) (West 2011). . . . . . . . . . . . . . . . . . . . . 3 n.1

Tex. Penal Code Ann. § 32.21(e)(1) (West 2011). . . . . . . . . . . . . . . . . . . 3 n.1

Tex. Penal Code Ann. § 37.09(a)(1) (West Supp. 2014).. . . . . . . . . . . . . 4 n.4

Tex. Penal Code Ann. § 37.09(c) (West Supp. 2014). . . . . . . . . . . . . . . . 4 n.4

Tex. Penal Code Ann. § 38.04(a) (West Supp. 2014). . . . . . . . . . . . . . . . 4 n.5

Tex. Penal Code Ann. § 38.04(b)(2)(A) (West Supp. 2014). . . . . . . . . . . 4 n.5

Tex. R. App. P. 9.4(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Tex. R. App. P. 25.2(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 n.8

Tex. R. App. P. 25.2(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 n.8

Tex. R. App. P. 39.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Tex. R. App. P. 43.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

vii
Nos. 13-14-00677-CR, 13-14-00678-CR, & 13-14-00679-CR

JOHN DOUGLAS HOUSTON, Appellant, *THE COURT OF APPEALS

*

v. *FOR THE THIRTEENTH

*

THE STATE OF TEXAS, Appellee. *DISTRICT OF TEXAS

BRIEF FOR THE STATE

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

In April of 2014, pursuant to plea bargain agreements, Appellant

was placed on community supervision for possession of

methamphetamine, tampering with or fabricating physical evidence,

evading arrest using a vehicle, forgery, and robbery. These are

consolidated appeals from a joint hearing on the State’s motions to

revoke Appellant’s community supervision in each case conducted on

September 18, 2014, in the 94th District Court of Nueces County,

Texas, before the Honorable Bobby Galvan. Appellant pleaded not true

to the allegations in the State’s motions to and revoke, but, after

receiving evidence, the trial court found that Appellant violated

conditions of his community supervision, revoked his community

supervision in each case, and sentenced him to ten years in prison on

1
each count in each case, all to run concurrently, in accordance with the

judgments and sentences originally entered in each case. In his appeal

from the trial court's judgments and sentences to that effect, Appellant

presents two issues for review: one contending that the evidence is

insufficient to prove any of the allegations in the motions to revoke, and

the other contending that his punishment was unconstitutionally

disproportionate to the seriousness of his crimes.

STATEMENT REGARDING ORAL ARGUMENT

Believing that the facts and legal arguments are adequately

presented in the briefs and record, that the dispositive issues have been

authoritatively decided, and that the decisional process would not be

significantly aided by oral argument, see Tex. R. App. P. 39.1, the State

does not request oral argument in this case.

COUNTER-STATEMENTS OF ISSUES PRESENTED

FOR REVIEW

1. Viewing the evidence in the light most favorable to the trial

court’s ruling, and giving deference to that court as the sole trier of

facts, the credibility of the witnesses, and the weight to be given to the

evidence presented, it cannot be said that such court abused its

discretion in finding that the greater weight of the credible evidence

2
before it created a reasonable belief that Appellant violated a condition

of his community supervision, as his attorney conceded.

2. The trial court did not assess punishment that was so

disproportionate to the offenses for which Appellant had been found

guilty as to violate the federal prohibition against cruel and unusual

punishment, however because Appellant did not raise this complaint in

the trial court, this issue was not preserved for appellate review.

STATEMENT OF PROCEDURAL HISTORY

Appellant was charged by indictment on June 13, 2013, with two

counts of the third degree felony offense of forgery

1

: one count alleged to

have occurred on December 2, 2012, and one count alleged to have

occurred on December 4, 2012. (1 C.R. [13-14-00678-CR, hereinafter

“678"] at 5-6).

On October 31, 2013, he was also charged by indictment with the

first degree felony offense of aggravated robbery,2alleged to have

occurred on May 31, 2013. (1 C.R. [13-14-00679-CR, hereinafter “679"]

at 4-5).

And on November 14, 2013, he was also charged by indictment

1See Tex. Penal Code Ann. § 32.21(b), (e)(1) (West 2011).

2See Tex. Penal Code Ann. § 29.03(a)(2), (b) (West 2011).

3
with one count of the second degree felony offense of possession of

methamphetamine,

3

one count of the third degree felony offense of

tampering with or fabricating physical evidence,

4

and one count of the

third degree felony offense of evading arrest or detention,

5

all alleged to

have occurred on July 17, 2012. (1 C.R. [13-14-00677-CR, hereinafter

“677"] at 5-6).

On April 1, 2014, Appellant waived his right to jury trials and to

the confrontation of witnesses, (1 C.R. [677] at 22-23; 1 C.R. [678] at 31-

32; 1 C.R. [679] at 20-21; 2 R.R. at 7

6

), and–-pursuant to plea bargain

agreements (1 C.R.[677] at 59-60; 1 C.R. [678] at 109-110; 1 C.R. [679]

at 97-98)–-pleaded guilty to each of the charges,

7

judicially confessed to

committing each of the offenses, and stipulated to evidence supporting

his pleas. (1 C.R. [677] at 31-56; 1 C.R. [678] at 40-106; 1 C.R. [679] at

3See Tex. Health & Safety Code Ann. § 481.115(a), (d) (West 2010); see also Tex.

Health & Safety Code Ann. § 481.102(6) (West 2010).

4See Tex. Penal Code Ann. § 37.09(a)(1), (c) (West Supp. 2014).

5See Tex. Penal Code Ann. § 38.04(a), (b)(2)(A) (West Supp. 2014).

6Although the reporter’s record in each cause number contains a volume

pertaining to the plea proceedings and a volume pertaining to the revocation hearing,

those volumes are identical and need not be identified by cause number.

7Appellant’s aggravated robbery charge was reduced to robbery as part of the

plea agreement in that case. (1 C.R. [679] at 97, 125; 2 R.R. at 6).

4
29-94; 2 R.R. at 7-8). The trial court accepted Appellant’s pleas, found

him guilty of the charges, followed the plea bargain agreements, and

assessed Appellant’s punishment for each count in each case at

confinement for ten years in the Institutional Division of the Texas

Department of Criminal Justice but suspended those sentences and

placed Appellant on community supervision for ten years in each case.

(1 C.R. [677] at 87; 1 C.R. [678] at 137; 1 C.R. [679] at 125; 2 R.R. at 9).

The trial court’s judgments to that effect were signed on April 1, 2014.

(1 C.R. [677] at 57-63; 1 C.R. [678] at 107-113; 1 C.R. [679] at 95-101).

On May 14, 2014, and June 9, 2014, the State filed identical

motions to revoke Appellant’s community supervision in each case,

alleging that he had violated several conditions of such supervision, in

part by committing the offense of possession of a controlled substance

on April 27, 2014. (1 C.R. [677] at 64-66; 1 C.R. [678] at 114-116; 1 C.R.

[679] at 102-104).

On August 11, 2014, the State filed identical amended motions to

revoke Appellant’s community supervision in each case, alleging, in

addition to the original allegations, that he had also violated conditions

of such supervision by committing the offenses of evading arrest on

April 27, 2014, and of fraudulent use or possession of identifying

5
information on July 31, 2014. (1 C.R. [677] at 81-83; 1 C.R. [678] at 131-

133; 1 C.R. [679] at 119-121).

On September 18, 2014, the trial court heard those motions,

accepted Appellant’s pleas of not true to the allegations in each motion,

received evidence, found all of the allegations in each motion to be true,

revoked his community supervision in each case, and assessed his

punishment for each count in each case at confinement for ten years in

the Institutional Division of the Texas Department of Criminal Justice,

all such sentences to be served concurrently. (3 R.R. at 4-50). The

sentences were imposed on September 18, 2014, and the trial court’s

judgments were signed on October 9, 2014. (1 C.R. [677] at 79-84, 87; 1

C.R. [678] at 129-134, 137; 1 C.R. [679] at 117-122, 125).

The trial court signed a certificate of Appellant's right of appeal in

each case on September 14, 2014.

8

(1 C.R. [677] at 76; 1 C.R. [678] at

126; 1 C.R. [679] at 114). Appellant filed a notice of appeal in each case

on October 6, 2014, (1 C.R. [677] at 77; 1 C.R. [678] at 127; 1 C.R. [679]

at 115), and those appeals, which were consolidated, are now before

this Court.

8See Tex. R. App. P. 25.2(a)(2) & (d).

6
STATEMENT OF FACTS

Corpus Christi Police Department (“CCPD”) officer David Alfaro

was on patrol on the afternoon of April 27, 2014, when he observed the

driver of a vehicle using a cell phone. He and his partner pulled the car

over and approached the driver, identified in court as Appellant, and

asked to see his driver’s license and proof of insurance. Appellant had

neither so in preparation to impound his vehicle, Alfaro asked

Appellant to step out of it. There was also another male in the

passenger side of the vehicle. As Alfaro patted down Appellant to check

for weapons, he observed a clear plastic baggie with a crystal-like

substance on the driver’s floorboard. Appellant was placed in Alfaro’s

patrol car and the officers inventoried the contents of Appellant’s car

before impounding it. In doing so, CCPD officer Daryl Anderson, who

had arrived to assist, found another bag under the driver’s seat of the

car. In it were two small plastic baggies containing a white, powdery

substance, several empty bags, and a syringe. A bag of synthetic

marijuana was also found. The contents of the baggie found on the

floorboard field-tested negative for methamphetamine but the contents

of the bag found under the driver’s seat field-tested positive for cocaine.

$1,138 was found in one of Appellant’s back pockets. All of the evidence

7
was tagged and placed in the evidence room at the police station. The

traffic stop was recorded by the dash-cam in the patrol car but Alfaro

did not bring that recording to court. (3 R.R. at 9-21, 29).

CCPD officer Reynaldo Tamez, Jr., was attached to the U.S.

Marshal’s warrant squad, which endeavored to apprehend individuals

with outstanding arrest warrants for violent offenses. In July of 2014, a

marshal contacted Tamez and other units to advise that as the marshal

was passing by a house, he saw Appellant, whom he knew to have an

outstanding warrant, sitting in a vehicle. Tamez proceeded to the

location where he saw that officers were already in a foot pursuit of

Appellant. Tamez went in the direction Appellant was headed and was

able to cut him off and apprehend him. Appellant was handcuffed and

taken back to the vehicle he ran from. That vehicle, which was pulling

a trailer, was inventoried prior to impounding it. In doing so, officers

found checks, blank checks, other people’s identification cards,

passports, and laptops. Several Frost Bank account checks, Social

Security cards, bank statements, and a passport belonged to an

individual by the name of Lawrence Kramer. Tamez called in that

information and the dispatcher advised that Kramer had been the

victim of a vehicle burglary. A check for jury service, payable to a

8
Cheryl Lynn Bennett, and something belonging to a Joann Rodriguez,

both of whom had also been the victims of vehicle burglaries, were also

found. Tamez indicated that Appellant had been the driver of that

vehicle and said that another individual who had been in the vehicle

got away without being caught. He did not know if fingerprints were

found on any of the recovered items. (3 R.R. at 21-28).

Appellant said that he had been on community supervision for

seventeen days when the vehicle he was driving was pulled over by the

police. An officer asked both Appellant and his passenger, Eric Trevino,

for identification. Appellant advised that his license was expired and he

did not have one. He was asked to step out of the vehicle and was

patted down. In doing so, the officers found Appellant in possession of

around $1100, which he said was because he had just gotten paid for

two weeks work as an electrical engineer at a recording studio. He had

no idea that the packages containing controlled substances were in the

vehicle and he had only been driving the vehicle for 10-15 minutes

when he was pulled over. He assumed it was Trevino’s vehicle but

didn’t really know. However, he acknowledged that he “was in

possession of it.” Appellant said Trevino was arrested because he had

outstanding warrants. (3 R.R. at 30-33, 45-46).

9
Appellant said that on July 31, 2014, he was sitting in the driver’s

seat of his vehicle in front of the house that contained the recording

studio where he had formerly been employed, waiting for his passenger

to arrive. When the passenger arrived, Appellant drove off toward a

friend’s house several blocks away. En route, Appellant noticed that

another vehicle–a silver Explorer–was “pursuing” him. Once at the

house, Appellant’s passenger got out of his vehicle, went up to the

house, and knocked on the door. At that point, the Explorer that had

been “pursuing” Appellant pulled up next to him. Appellant said the

occupants looked at him and then “tried to cut me off.” Appellant

accelerated and swerved around so the other driver couldn’t cut him off.

Appellant said he had no idea who the other driver was or why he was

there. Appellant circled the block as the Explorer followed him.

Appellant’s passenger got back in Appellant’s car. As they drove by the

Explorer, it started to follow them again. Appellant’s passenger wanted

to find out who the occupants of the Explorer were so Appellant stopped

and his passenger exited their vehicle and approached the Explorer.

Appellant said that the occupants of the Explorer then pulled guns on

Appellant’s passenger and he was on the ground. (3 R.R. at 34-37, 44).

As soon as that happened, Appellant took off again. Once the

10
Explorer caught up to him, Appellant jumped out of his vehicle while it

was still moving and ran. Appellant said that there was nothing about

the Explorer or its occupants to suggest that they were law

enforcement personnel. They were not wearing uniforms and the

Explorer did not have a siren or flashing lights. Nor did they say

anything to Appellant as they were pursuing him to suggest that they

were law enforcement personnel. However, as soon as he did see police

vehicles as he was running away, Appellant lay on the ground with his

hands over his head. Appellant acknowledged, however, that he had

warrants out for his arrest at that time. (3 R.R. at 37-42, 45).

Appellant said he had no idea that a backpack full of other

people’s information had been found or that it had ever been in the

vehicle he was driving. He added that that vehicle was not his but

rather belonged to his friend, Franky Sanchez, and that he had only

been driving it for a couple of hours before the incident. He did not

know Lawrence Kramer, Cheryl Bennett, or Joanne Rodriguez. He also

did not care to reveal the name of the passenger of the vehicle. (3 R.R.

at 42-45, 48).

Appellant agreed with the prosecutor that the gist of his

testimony was that on both occasions, he was just at the wrong place at

11
the wrong time. He said he was not an identity thief, that he did not

steal, and that he did not break into cars. But he acknowledged that he

was on community supervision for forgery, robbery, and possession of a

controlled substance. (3 R.R. at 46-48).

Additional facts necessary for a resolution of the issues Appellant

presents for review will be discussed in the replies to those

presentations.

SUMMARY OF THE ARGUMENT

The trial court revoked Appellant’s community supervision on the

basis of four violations of the conditions of such supervision, including

allegations that he committed three new offenses. Viewing the evidence

in the light most favorable to the trial court’s ruling, and giving

deference to that court as the sole trier of facts, the credibility of the

witnesses, and the weight to be given to the evidence presented, it

cannot be said that such court abused its discretion in finding that the

greater weight of the credible evidence before it created a reasonable

belief that Appellant violated a condition of his community supervision.

Indeed, at the conclusion of evidence during Appellant’s revocation

hearing, his attorney conceded that the State had met its burden of

proving such allegations.

12
By failing to object to his sentences in the trial court, Appellant

has forfeited his right to complain on appeal that such sentences are

disproportionate to his crimes. But even if this issue had been

preserved, Appellant fails to show how his sentences, which were

within the legislatively prescribed punishment range, were grossly

disproportionate to the crimes for which he was convicted.

ARGUMENT

A. Reply to Appellant's Issue Presented for Review No. 1: Viewing the

evidence in the light most favorable to the trial court’s ruling, and

giving deference to that court as the sole trier of facts, the

credibility of the witnesses, and the weight to be given to the

evidence presented, it cannot be said that such court abused its

discretion in finding that the greater weight of the credible

evidence before it created a reasonable belief that Appellant

violated a condition of his community supervision, as his attorney

conceded.

In the first issue Appellant presents for review, he contends that,

“[t]he State failed to prove by a preponderance of the evidence that [he]

committed the offenses as set forth in the motions to revoke probation.”

(Appellant’s brief at 8).

This contention is without merit.

In a community supervision revocation hearing, the State must

prove by a preponderance of the evidence that a condition of such

supervision was violated. See Rickels v. State, 202 S.W.3d 759, 763

13
(Tex. Crim. App. 2006); Davila v. State, 173 S.W.3d 195, 197 (Tex. App.

-- Corpus Christi 2005, no pet.). This burden is satisfied when the

greater weight of the credible evidence before the court creates a

reasonable belief that a condition of community supervision has been

violated as alleged. Rickels, 202 S.W.3d at 763-64; Davila, 173 S.W.3d

at 197.

Appellate review of an order revoking community supervision is

limited to determining whether the trial court abused its discretion. See

Rickels, 202 S.W.3d at 763; Davila, 173 S.W.3d at 197. In reviewing

such an order, the evidence is examined in the light most favorable to

the trial court’s order, see Garrett v. State, 619 S.W.2d 172, 174 (Tex.

Crim. App. [Panel Op.] 1981); Davila, 173 S.W.3d at 197, giving

deference to the trial court as the sole trier of facts, the credibility of

the witnesses, and the weight to be given to the evidence presented. See

Naquin v. State, 607 S.W.2d 583, 586 (Tex. Crim. App. [Panel Op.]

1980); Davila, 173 S.W.3d at 197. When the standard of review is abuse

of discretion, the record must simply contain some evidence to support

the decision made by the trial court. Davila, 173 S.W.3d at 197; see also

Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013) (discussing

how the Texas Supreme Court has explained the preponderance-of-the14
evidence standard in civil cases).

One ground for revocation, if proven, is sufficient to revoke a

defendant’s community supervision. See Smith v. State, 286 S.W.3d

333, 342 (Tex. Crim. App. 2009); Moore v. State, 605 S.W.2d 925, 926

(Tex. Crim. App. [Panel Op.] 1980); Rickels v. State, 69 S.W.3d 775, 778

(Tex. App. -- Corpus Christi 2002), rev’d on other grounds, 108 S.W.3d

900 (Tex. Crim. App. 2003). For that reason, to obtain reversal for

insufficiency of the evidence in a community supervision case, a

defendant must successfully challenge each ground on which the trial

court relies. See Smith, 286 S.W.3d at 342-43; Sterling v. State, 791

S.W.2d 274, 277 (Tex. App. -- Corpus Christi 1990, pet. ref’d) (citing

Moore); Joseph v. State, 3 S.W.3d 627, 640 (Tex. App. -- Houston [14th

Dist.] 1999, no pet.); Harris v. State, 160 S.W.3d 621, 626 (Tex. App. --

Waco 2005, pet. struck). Indeed, it is not necessary to consider the

sufficiency of the evidence to prove other violations if any one of the

alleged violations is supported by the evidence. See Sanchez v. State,

603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); Chaires v.

State, 704 S.W.2d 397, 398 (Tex. App. -- Corpus Christi 1985, no pet.).

Here, the trial court did not abuse its discretion in adjudicating

Appellant’s guilt and revoking his community supervision.

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To begin with, there was ample evidence supporting the trial

court’s finding that each of the allegations in the State’s amended

motion to revoke were true. Indeed, at the conclusion of evidence

during Appellant’s revocation hearing, his attorney conceded that the

State had met its burden of proving such allegations. (3 R.R. at 49).

Moreover, Appellant’s “wrong place at the wrong time”

contentions regarding both incidents were simply not credible. And

Appellant gave the trial court plenty of basis for believing his testimony

in general was not credible. Although Appellant testified during his

revocation hearing that the forgery conviction for which he was on

community supervision was for possessing two counterfeit $100 bills

that he did not know were counterfeit at the time, (3 R.R. at 47), the

evidence to which Appellant stipulated at the time he pleaded guilty to

those offenses included his acknowledgment that he obtained them

from the person who altered them, knowing they were counterfeit, and

that he passed them both to clerks at convenience stores. That evidence

also documented that at the time of his arrest for one of the forgery

offenses, Appellant told officers that he received one of the bills at a

“game room in Portland,” which his later confession established was

not true (1 C.R. [678] at 43, 50-51, 61, 66-67, 73-75).

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Thus, when viewed in the light most favorable to the trial court’s

order, and giving deference to that court as the sole trier of facts, the

credibility of the witnesses, and the weight to be given to the evidence

presented, it cannot be said that such court abused its discretion in

finding that the greater weight of the credible evidence before it created

a reasonable belief that Appellant violated a condition of his

community supervision.

Accordingly, the first issue Appellant presents for review should

be overruled.

B. Reply to Appellant's Issue Presented for Review No. 2: The trial

court did not assess punishment that was so disproportionate to

the offenses for which Appellant had been found guilty as to

violate the federal prohibition against cruel and unusual

punishment, however because Appellant did not raise this

complaint in the trial court, this issue was not preserved for

appellate review.

In the second issue Appellant presents for review, he contends

that, “the punishment assessed by the judge during the sentencing

phase of the motions to revoke probation was disproportionate to the

seriousness of the alleged offenses, all in violation of the Eighth and

Fourteenth Amendments of the United States Constitution.”

(Appellant’s brief at 10).

This contention is without merit.

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While this contention is without merit,

9

this Court should not

address it because the issue was not preserved for appellate review.

Appellant made no objection to his sentences in the trial court at the

time of sentencing or in any post-trial motion on any ground, let alone

on the basis of them being cruel and unusual or disproportionate to his

crimes. (3 R.R. at 50).

By failing to so object, he has forfeited his complaint on appeal.

See Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983);

Trevino v. State, 174 S.W.3d 925, 927-29 (Tex. App. -- Corpus Christi

2005, pet. ref’d); see also Cann, 2014 WL 4243666, at *1, 2014 Tex. App.

LEXIS 9374, at *1-2 (summarily rejected for failure to preserve issue);

Gutierrez v. State, Nos. 13-12-00565-CR & 13-12-00566-CR, 2014 WL

2936931, at *1-2, 2014 Tex. App. LEXIS 6813, at *3-4 (Tex. App. –

Corpus Christi June 26, 2014, no pet.) (mem. op., not designated for

publication) (same); Johnson v. State, No. 13-13-00180-CR, 2014 WL

9

Indeed, Appellant notes that appeals on this basis may be frivolous,

(Appellant’s brief at 10), and this Court has repeatedly rejected such claims. See, e.g.,

Cann v.State, Nos. 13-13-00151-CR & 13-13-00152-CR, 2014 WL 4243666, at *1, 2014

Tex. App. LEXIS 9374, at *1-2 (Tex. App. – Corpus Christi Aug. 25, 2014, pet. ref’d)

(mem. op., not designated for publication) (summarily rejected for failure to preserve

issue); Vela v. State, No. 13-13-00230-CR, 2014 WL 3049482, at *1-3, 2014 Tex. App.

LEXIS 7281, at *3-9 (Tex. App.– Corpus Christi July 3, 2014, no pet.) (mem. op., not

designated for publication) (rejected on merits).

18
3399818, at *3, 2014 Tex. App. LEXIS 7401, at *7-8 (Tex. App. –

Corpus Christi July 10, 2014, no pet.) (mem. op., not designated for

publication) (same); Ornelas v. State, No. 13-12-00689-CR, slip op. at 10

n.3, 2013 WL 3895358, at *5 n.3, 2013 Tex. App. LEXIS 9237, at *14-15

n.3 (Tex. App. – Corpus Christi July 25, 2013, no pet.) (mem. op., not

designated for publication) (responding to same contention as that

urged on page 11 of Appellant’s brief that a court has power to review a

sentence to determine whether it passes constitutional muster even if

no objection lodged in trial court).

But even if this issue had been preserved, Appellant fails to show

how his sentences, which were within the legislatively prescribed

punishment range, were grossly disproportionate to the crimes for

which he was convicted.

As a result of plea bargain agreements, Appellant was assessed

six concurrent ten-year suspended sentences for committing six thirddegree felony offenses, one of which was reduced from a second-degree

felony charge. When assessing punishment upon revoking Appellant’s

community supervision for violating the conditions of such supervision

by committing three new felony offenses beginning within weeks of

being placed on supervision, the trial court simply ordered that

19
Appellant be punished in accordance with the judgments and sentences

originally entered in each case—the sentences Appellant bargained for

and willingly accepted at the time of his initial pleas. While in his brief,

Appellant offers the fact that he had only been on community

supervision “for a very short period of time” as a basis for his

contention that the trial court should have continued him on such

supervision with new conditions, (Appellant’s brief at 19-20), if

anything, Appellant’s commission of three new offenses so soon after

being placed on his ten-year term of community supervision merely

supports the trial court’s decision to revoke such supervision and

impose the generous concurrent sentences it had initially suspended.

For both of these reasons, the second issue Appellant presents for

review should be overruled.

PRAYER FOR RELIEF

For the foregoing reasons, the State respectfully requests that the

judgment of the trial court be affirmed. See Tex. R. App. P. 43.2(a).

/s/ James D. Rosenkild

James D. Rosenkild

State Bar No. 17279200

Assistant District Attorney

105th Judicial District of Texas

901 Leopard, Room 206

Corpus Christi, Texas 78401-3602

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(361) 888-0410

(361) 888-0254 (fax)

james.rosenkild@co.nueces.tx.us

CERTIFICATE OF COMPLIANCE

This is to certify that the word count of the computer program

used to prepare this brief indicates that such brief contains 3,078

words, not counting the following if part of this brief: the caption,

identity of parties and counsel, statement regarding oral argument,

table of contents, index of authorities, statement of the case, statement

of issues presented, statement of jurisdiction, statement of procedural

history, signature, proof of service, certification, certificate of

compliance, and appendix. See Tex. R. App. P. 9.4(i).

/s/ James D. Rosenkild

James D. Rosenkild

CERTIFICATE OF SERVICE

This is to certify that a copy of this brief was served via certified

electronic service provider (or mailed if electronic service could not be

made) this 27th day of July 2015, to Appellant's attorney, Randall E.

Pretzer, P.O. Box 18993, Corpus Christi, TX 78480-8993;

Rpretzer@Clearwire.net.

.

/s/ James D. Rosenkild

James D. Rosenkild

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