Luis Miguel Marsh v. State ( 2013 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-12-00082-CR
LUIS MIGUEL MARSH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court
Hopkins County, Texas
Trial Court No. 0921391
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Luis Miguel Marsh pled guilty to the offense of indecency with a child and was placed on
deferred adjudication community supervision for a period of ten years. 1 Eight months later, the
State filed a motion to proceed with adjudication of guilt, alleging that Marsh violated the terms
and conditions of his community supervision on grounds that he failed to abstain from the
possession or consumption of alcohol, committed the offense of driving while intoxicated
(DWI), and failed to report to his community supervision officer within forty-eight hours of his
arrest. 2 After a contested hearing, the trial court adjudicated him guilty of indecency with a
child, revoked Marsh’s community supervision, and sentenced him to ten years’ imprisonment.
Marsh appeals the trial court’s judgment on the grounds that the evidence was legally insufficient
to revoke his community supervision and that the sentence imposed constituted cruel and
unusual punishment. We affirm the judgment of the trial court.
I. The Evidence Was Sufficient
Considering the unique nature of a revocation hearing and the trial court’s broad
discretion in the proceedings, the general standards for reviewing sufficiency do not apply.
Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003, pet. ref’d). Instead, we
review the trial court’s decision to revoke Marsh’s community supervision for an abuse of
discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); In re T.R.S., 115
S.W.3d 318, 320 (Tex. App.—Texarkana 2003, no pet.). The trial court did not abuse its
1
See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West Supp. 2012).
2
The State also alleged that Marsh failed to make payments on various fees described in the terms and conditions of
his community supervision. However, the trial court did not find that Marsh had violated terms related to payment
of fees.
2
discretion if the order revoking community supervision was supported by a preponderance of the
evidence, or, in other words, if the greater weight of the credible evidence would create a
reasonable belief that Marsh had violated a condition of his community supervision. Rickels,
202 S.W.3d at 763–64; T.R.S., 115 S.W.3d at 320.
In conducting our review, we view the evidence in the light most favorable to the trial
court’s ruling. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); T.R.S., 115
S.W.3d at 321; Pierce, 113 S.W.3d at 436 (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex.
Crim. App. [Panel Op.] 1981)). If a single ground for revocation is supported by a
preponderance of the evidence and is otherwise valid, then an abuse of discretion is not shown.
Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); T.R.S., 115 S.W.3d
at 321 (citing Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.—Texarkana 1995, pet. ref’d)).
In a community supervision revocation hearing, the trial court is the sole trier of fact and
determines the credibility of the witnesses and the weight to be given their testimony. Cherry v.
State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet. ref’d). The court may accept or
reject any or all of the witness’ testimony. Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim.
App. 1987). The State is required to sustain the burden of proving the allegations of the motion
to revoke community supervision. Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App.
1974).
At the revocation hearing, Marsh’s community supervision officer, Joseph Flemens,
testified that he received a report indicating that Marsh was arrested on October 20, 2011, for the
offense of DWI. Officer Tim Cordell testified that he stopped a vehicle being driven by Marsh,
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the sole occupant in the car, after witnessing the vehicle strike a curb while turning into a
McDonald’s parking lot. Cordell noticed that Marsh “fumbled through his wallet” and “was
having a difficult time retrieving” his driver’s license from the wallet after being asked for
identification. According to Cordell, Marsh “seemed disoriented.” Cordell asked Marsh if he
had consumed alcohol, and Marsh responded, “Not much.” 3 Marsh exited the vehicle so that
sobriety tests could be performed, but “had to use his left arm to grasp the Pontiac to steady
himself as he walked.” Cordell testified that the horizontal gaze nystagmus, walk-and-turn, and
one-leg-stand tests indicated that Marsh was intoxicated.
Marsh contends that the evidence was insufficient to revoke his community supervision
because no blood-alcohol test was offered at trial, and the DWI charge was subsequently
dismissed. However, based on Cordell’s testimony recited above, which included Marsh’s
admission that he had consumed alcohol, we conclude that the greater weight of the credible
evidence would create a reasonable belief that Marsh had violated the first two conditions of his
community supervision. Thus, the trial court did not abuse its discretion in adjudicating Marsh’s
guilt and revoking his community supervision.
Marsh’s first point of error is overruled.
II. The Issue of Cruel and Unusual Punishment Was Not Preserved
Marsh argues that, although the sentence imposed was within the range of punishment
authorized by the Texas Legislature, the sentence violated Marsh’s right to be free from cruel
and unusual punishment due to the following reasons:
3
Marsh also told Cordell that he was taking “Ambien and antidepressants.”
4
Appellant is a war veteran suffering from mental and emotional issues resulting
from war time service. He was receiving treatment for alcohol abuse from the
Veteran’s Administration, and was waiting for an opening at a facility for further
treatment when he was arrested. . . . Appellant does not need to be incarcerated
for his condition, rather he needs medical treatment, which he would have
received from the Veteran’s Administration. Therefore, the Court should reverse
and remand due to a sentence which constitutes cruel and unusual punishment.
To preserve for appellate review a complaint that a sentence is grossly disproportionate,
constituting cruel and unusual punishment, a defendant must present to the trial court a timely
request, objection, or motion stating the specific grounds for the ruling desired. Kim v. State,
283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); Noland v. State, 264 S.W.3d
144, 152 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); Williams v. State, 191 S.W.3d 242,
262 (Tex. App.—Austin 2006, no pet.); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref’d); see Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App.
1995); TEX. R. APP. P. 33.1. This is because “[a] constitutionality challenge based on application
to the defendant’s case cannot be raised for the first time on appeal.” Fluellen v. State, 104
S.W.3d 152, 167 (Tex. App.—Texarkana 2003, no pet.) (citing Briggs v. State, 789 S.W.2d 918,
923 (Tex. Crim. App. 1990); Smith v. State, 10 S.W.3d 48, 49 (Tex. App.—Texarkana 1999, no
pet.)); see Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994).
Our review of the record confirms that Marsh failed to raise the issue of cruel and
unusual punishment in the trial court. 4 Therefore, no error is preserved for our review.
Marsh’s last point of error is overruled.
4
Marsh’s generalized motion for new trial failed to raise this issue.
5
III. Conclusion
We affirm the trial court’s judgment.
Jack Carter
Justice
Date Submitted: March 13, 2013
Date Decided: March 20, 2013
Do Not Publish
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