Frank Leon Thompson v. State ( 2009 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-09-00011-CR ______________________________



FRANK LEON THOMPSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 71st Judicial District Court Harrison County, Texas Trial Court No. 08-0343X

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Frank Leon Thompson has appealed from his jury conviction for the offense of burglary of a habitation. The jury assessed punishment at twenty years' imprisonment.

On appeal, Coleman contends that his sentence is disproportionate to the crime, citing Solem v. Helm, 463 U.S. 277 (1983), and Davis v. State, 905 S.W.2d 655 (Tex. App.--Texarkana 1995, pet. ref'd). To preserve such complaint for appellate review, Thompson must have presented to the trial court a timely request, objection, or motion that stated the specific grounds for the desired ruling, or the complaint must be apparent from the context. See Tex. R. App. P. 33.1(a)(1); Harrison v. State, 187 S.W.3d 429, 433 (Tex. Crim. App. 2005); Williams v. State, 191 S.W.3d 242, 262 (Tex. App.--Austin 2006, no pet.) (claims of cruel and unusual punishment must be presented in timely manner); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd) (failure to complain to trial court that sentences were cruel and unusual waived claim of error for appellate review). We have reviewed the records of the trial proceeding. No relevant request, objection, or motion was made. And, while this Court has held that a motion for new trial is an appropriate way to preserve this type of claim for review (see Williamson v. State, 175 S.W.3d 522, 523-24 (Tex. App.--Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.--Texarkana 2005, no pet.)), no motion for new trial was filed. Thompson has not preserved such an issue for appeal.

Therefore, we affirm the trial court's judgment.

   Jack Carter

Justice

Date Submitted: March 20, 2009

Date Decided: March 23, 2009

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On August 21, 2002, the State filed a motion to revoke Welch's community supervision. Welch pled "not true" to having violated the terms of his community supervision. At the conclusion of a hearing on the State's motion, the trial court found the allegations contained in the motion to revoke were true, revoked Welch's community supervision, and, on March 6, 2003, imposed the original sentence of five years' imprisonment.

Analysis

            In his sole issue before this Court, Welch contends the State presented insufficient evidence to support the trial court's finding that he had violated a condition of his community supervision. "To revoke probation, the State must prove every element of at least one ground for revocation by a preponderance of the evidence." Pierce v. State, No. 06-02-00009-CR, 2003 WL 21321476, at *2 (Tex. App.‒Texarkana June 10, 2003, pet. ref'd) (citing Tex. Code Crim. Proc. Ann. art. 42.12, § 21 (Vernon Supp. 2003)). A trial court has extremely broad discretion over the conditions of community supervision and its revocation or continuation. Id. Given the unique nature of a revocation proceeding, the general standards for appellate review of factual or legal sufficiency challenges do not apply to a trial court's decision to revoke community supervision. Id. (citing Cochran v. State, 78 S.W.3d 20, 27 (Tex. App.‒Tyler 2002, no pet.); Becker v. State, 33 S.W.3d 64, 66 (Tex. App.‒El Paso 2000, no pet.)). Instead, we must determine whether the greater weight of the credible evidence creates a reasonable belief that the defendant violated any single term of the community supervision. If so, then we will not find the trial court abused its discretion. Id.

            In relevant part, the trial court's original terms and conditions of community supervision required Welch to commit no new criminal offense and complete 240 hours of community service at a rate of ten hours each month beginning in September 2001. In its motion to revoke, the State alleged Welch committed the new criminal offense of driving while intoxicated and failed to perform his community service at the court-ordered rate.

            Edward Anozie, an employee of the Harris County Community Supervision Department, testified for the State. When he reported each month to the community supervision office, Welch was to bring Anozie a log of Welch's completed community service. Anozie testified Welch claimed to have completed more than the required ten hours in many months, but failed to present his work log. Anozie testified that, therefore, he could not verify Welch's claims. Instead, Anozie testified that, during his supervision of Welch, only during one month did Welch perform more than ten hours of community service; other months Welch did fewer than ten hours, and during one month Welch performed no community service. Anozie told the trial court that Welch's community service hours now averaged less than ten hours per month, so Welch was behind in his obligation under the terms of the community supervision order.

            On cross-examination, Anozie's testimony was somewhat unclear regarding the exact number of hours Welch completed during any given month. Nonetheless, we cannot say the trial court should have found Anozie's consistent testimony—that Welch's community service was not being completed at an average of ten hours per month and that, as of the date of the revocation hearing, Welch was behind in his obligation—incredible or untrustworthy.

            Welch neither testified at the revocation hearing, nor presented any evidence regarding the number of community service hours he worked. The trial court found true the State's allegation that Welch had failed to work ten hours each month. We cannot say this finding is against the greater weight of the credible evidence. Accordingly, we find the trial court's judgment to be based on a reasonable belief that Welch had violated at least one condition of his community supervision.

            Because we find the great weight of the credible evidence creates a reasonable belief that Welch violated the condition of his community supervision requiring him to perform ten hours of community service each month, we need not decide whether the evidence supports the trial court's finding that Welch committed the new criminal offense of driving while intoxicated while on community supervision in this case.

            We overrule Welch's sole point of error and affirm the trial court's judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          November 13, 2003

Date Decided:             November 14, 2003

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