Cipriano Gonzalez v. State ( 2015 )

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.
amend. VIII, XIV. We affirm.
I. 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
1 During the term, the trial court extended the period of community supervision to five years.
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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.
II. 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).
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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
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to revoke for failing to report for three consecutive months). Although appellant argues
the violations—other than assault 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.
III. 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
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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.
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