Lakim Mintrell Guild v. State ( 2013 )

NUMBER 13-12-00750-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
BODERICK HOLCOMBE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Valdez
On April 14, 2011, appellant, Broderick Holcombe, was charged by indictment
with the second-degree felony offense of possession of cocaine. See TEX. HEALTH &
SAFETY CODE ANN. § 481.115(d) (West 2010). Pursuant to a plea bargain agreement,
appellant pleaded guilty to the charge, confessed to committing the offense, and
stipulated to evidence supporting his plea. The trial court accepted appellant’s plea,
deferred adjudication of appellant’s guilt, and placed him on community supervision for
six years. On July 10, 2012, the State filed an amended motion to adjudicate
appellant’s guilt and revoke his community supervision, alleging he had violated thirteen
conditions of his community supervision. The trial court heard the State’s amended
motion on October 18, 2012, where appellant pleaded true to eleven of the thirteen
allegations. The trial court accepted appellant’s pleas, received evidence, and
subsequently found that all thirteen allegations set forth in the State’s motion to
adjudicate were true. The court adjudicated appellant’s guilt, revoked his community
supervision, and assessed his punishment at twenty years confinement in the
Institutional Division of the Texas Department of Criminal Justice.
By his first issue, appellant challenges the revocation of his community
supervision on the ground that he did not commit the offense of aggravated robbery. By
his second issue, appellant challenges the constitutionality of his sentence. We affirm.
I. REVOCATION OF COMMUNITY SUPERVISION
By his first issue, appellant contends that because the State did not prove by a
preponderance of the evidence that he committed the offense of aggravated robbery,
one of the alleged violations, the revocation violated his due process rights and
privileges under the Fifth and Fourteenth Amendments of the U.S. Constitution. See
U.S. CONST. amend. V, XIV. Appellant contends that this Court should find the
allegation of aggravated robbery “not true” and render a judgment returning him to
community supervision under the previous terms and conditions set forth by the trial
court.
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A. Standard of Review and Applicable Law
The trial court’s decision to revoke a defendant’s deferred adjudication
community supervision is reviewed under an abuse of discretion standard. Rickels v.
State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). At a revocation hearing, the State
bears the burden of proving by a preponderance of the evidence that the defendant
violated the terms and conditions of his community supervision. Cobb v. State, 851
S.W.2d 871, 873 (Tex. Crim. App. 1993). Proof of any of the alleged violations is
sufficient to support a revocation order. Moore v. State, 605 S.W.2d 924, 926 (Tex.
Crim. App. 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980). At a
revocation hearing, the trial court is the sole judge of the credibility of the witnesses and
the weight to be given their testimony, and we must 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); Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981).
B. Analysis
The State alleged that appellant violated his community supervision by: (1)
committing the offense of aggravated robbery; (2) testing positive for benzodiazepines
following arrest; (3) testing positive for marihuana following arrest; (4)–(5) failing to
report to his probation officer as directed on two occasions; (6) failing to pay court costs;
(7) failing to pay monthly supervision fees; (8) failing to pay urinalysis fees; (9) failing to
report any new arrest; (10) being unsatisfactorily discharged from a drug treatment
program; (11) failing to satisfactorily complete another required program; (12) failing to
complete the required number of community service restitution hours; and (13) failing to
observe curfew.
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Here, appellant pleaded “true” to eleven of the thirteen allegations in the State’s
amended motion to adjudicate and revoke. Appellant’s pleas of “true” to these
violations are sufficient to support the trial court’s revocation of his community
supervision, regardless of whether the State met its burden to prove that appellant
committed the offense of aggravated robbery. See Smith v. State, 286 S.W.3d 333,
343–44 (Tex. Crim. App. 2009) (finding that the trial court was justified in revoking the
appellant’s community supervision where the trial court found that the appellant
committed three of four violations alleged, and appellant challenged only one ground);
see also Gobell v. State, 528 S.W.2d 223, 224 (Tex. Crim. App. 1975) (“Since the other
finding upon which probation was revoked is unchallenged, appellant’s contention, even
if correct, would not show an abuse of discretion.”); see also Wiley v. State, No. 13-11-
00130-CR, 2012 Tex. App. LEXIS 279, at *2–4 (Tex. App.—Corpus Christi Jan. 12,
2012, no pet.) (mem. op., not designated for publication) (concluding that even if the
trial court erred in the admission of evidence, it had not abused its discretion in revoking
the appellant’s community supervision because the appellant did not challenge the
other alleged violations not affected by trial court’s error); see also DeLeon v. State, No.
13-10-00581-CR, 2012 Tex. App. LEXIS 2083, at *10–12 (Tex. App.—Corpus Christi
Mar. 15, 2012, no pet.) (mem. op., not designated for publication) (overruling the
appellant’s claim that the trial court abused its discretion by revoking his community
supervision because the appellant did not challenge all grounds supporting the trial
court’s revocation). Therefore, the trial court did not abuse its discretion in revoking
appellant’s community supervision and adjudicating him guilty. We overrule appellant’s
first issue.
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II. CONSTITUTIONALITY OF THE SENTENCE
By his second issue, appellant contends that the sentence imposed by the trial
court was disproportionate to the seriousness of the alleged offense, in violation of the
Eighth and Fourteenth Amendments to the United States Constitution. See U.S. CONST.
amend. VIII, XIV. Specifically, appellant argues that the sentence is cruel, unusual, and
grossly disproportionate to the severity of his crime.
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor
excessive fine imposed, nor cruel and unusual punishment inflicted.” See U.S. CONST.
amend. VIII, XIV. The Eighth Amendment applies to punishments imposed by state
courts through the Due Process Clause of the Fourteenth Amendment. See U.S.
CONST. amend. XIV. Yet, it is possible for this right, and every constitutional or statutory
right, to be waived by a “failure to object.” Smith v. State, 721 S.W.2d 844, 855 (Tex.
Crim. App. 1986). Generally, to preserve error for appellate review, a party must
present a timely objection to the trial court, state the specific grounds for the objection,
and obtain a ruling. TEX. R. APP. P. 33.1(a). 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 our review. Noland v. State, 264 S.W.3d 144, 151 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d) (“[I]n order 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.”); Trevino v. State, 174
S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet. ref’d) (providing that “by failing
to object to the trial court’s sentence, [the appellant] forfeited his complaint” that the
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sentence was cruel and unusual); see also Daliet v. State, No. 13-11-00611-CR, 2013
Tex. App. LEXIS 3871, at *5 (Tex. App.—Corpus Christi Mar. 28, 2013, pet. ref’d)
(mem. op., not designated for publication) (holding in regards to an appeal on
proportionality of sentencing that, “appellant acknowledges that no objection was made
to the sentence in the trial court, but invites us to review the sentence under our
inherent power. The error being unpreserved, we decline the invitation.”).
Appellant complains for the first time on appeal that his Eighth Amendment rights
have been violated because the sentence is cruel, unusual, and grossly
disproportionate to the offense committed. Appellant did not object to the sentence at
the punishment hearing or in any post-trial motion. Therefore, his argument is not
preserved for our review. See TEX. R. APP. P. 33.1(a); Noland, 264 S.W.3d at 151;
Trevino, 174 S.W.3d at 928; see also Daliet, 2013 Tex. App. LEXIS 3871, at *5. We
overrule appellant’s second issue.
III. CONCLUSION
We affirm the trial court’s judgment.
________________________
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
13th day of June, 2013.
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