Jimmy Derrick Hicks v. State ( 2019 )

Affirmed and Memorandum Opinion filed February 12, 2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00822-CR
JIMMY DERRICK HICKS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 75474
MEMORANDUM OPINION
Appellant pleaded guilty to a felony family-violence assault, and the trial
court placed appellant on community supervision probation. The State moved to
revoke appellant’s probation, alleging twenty-four violations. The trial court found
twenty of the allegations “true,” revoked probation, and sentenced appellant to four
years’ confinement. In two issues, appellant contends that the evidence is
insufficient to support the trial court’s revocation of probation and that the sentence
was excessive and disproportionate to the crime committed.
We affirm.
I. Sufficient Evidence
To revoke community supervision probation, the State must prove a violation
of a condition of probation by a preponderance of the evidence. Hacker v. State, 389
S.W.3d 860, 864–65 (Tex. Crim. App. 2013). A preponderance of the evidence is
met if the greater weight of the credible evidence creates a reasonable belief that the
defendant has violated a condition of probation. Id. at 865. Evidence is sufficient to
revoke probation if there is more than a scintilla of evidence. Id. The trial court is
the sole judge of the credibility of witnesses and the weight to be given their
testimony. Id. Proof of a single violation of the terms of probation will support the
trial court’s decision to revoke. See Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim.
App. 2012); Bessard v. State, 464 S.W.3d 427, 429 (Tex. App.—Houston [14th
Dist.] 2015, pet. ref’d).
We review the trial court’s ruling to revoke probation for an abuse of
discretion. See Hacker, 389 S.W.3d at 865. A trial court does not abuse its discretion
if the ruling is within the zone of reasonable disagreement. Burch v. State, 541
S.W.3d 816, 820 (Tex. Crim. App. 2017).
One of the conditions of appellant’s probation required him to “totally abstain
from the use or consumption of alcoholic beverages of any kind.” Of the twenty
violations of the conditions of probation that the trial court found “true,” two
concerned appellant’s use of alcohol on separate occasions. Appellant’s probation
officer testified that appellant admitted to using alcohol on those dates. The officer
also testified that appellant’s urine tested positive for alcohol. Appellant testified at
2
the revocation hearing and admitted to drinking alcohol while on probation.
Appellant’s argument that “these two minor infractions are hardly worthy of the
adjudication of his guilt and the imposition of a prison sentence” is something
beyond this court’s scope of review on sufficiency of the evidence.
Accordingly, there is more than a scintilla of evidence—and proof by a
preponderance of the evidence—that appellant violated at least one term of the
conditions of community supervision probation. The trial court did not abuse its
discretion by revoking probation. See Cunningham v. State, 488 S.W.2d 117, 121–
22 (Tex. Crim. App. 1972) (no abuse of discretion to revoke probation when the
probationer told the probation officer that the probationer used narcotics); see also
Barajas v. State, 682 S.W.2d 588, 589 (Tex. App.—Waco 1984, no pet.) (“An oral
admission of a violation of probation terms, made by probationer to his probation
officer is sufficient to revoke probation.”).
Because the evidence is sufficient and the trial court did not abuse its
discretion by revoking probation, we do not address appellant’s contentions on
appeal about the eighteen other violations. See Moore v. State, 605 S.W.2d 924, 926
(Tex. Crim. App. 1980); Bessard, 464 S.W.2d at 429.
Appellant’s first issue is overruled.
II. Punishment
In his second issue, appellant contends that the trial court violated his rights
under the Eighth Amendment to the United States Constitution and Article I, Section
13 of the Constitution of the State of Texas because the court assessed an excessive
and disproportionate sentence.
Generally, an appellant must preserve error for a complaint that a sentence is
unconstitutionally excessive or disproportionate under the federal or Texas
3
constitution. See Battle v. State, 348 S.W.3d 29, 30–31 (Tex. App.—Houston [14th
Dist.] 2011, no pet.); see also Quick v. State, 557 S.W.3d 775, 788 (Tex. App.—
Houston [14th Dist.] 2018, pet. filed). Appellant did not object to the imposition of
his sentence or otherwise raise his appellate complaints in the trial court. And,
appellant does not make a status-based or individualized-sentencing claim under
Miller v. Alabama, 567 U.S. 460 (2012), for which error preservation is not required.
See Garza v. State, 435 S.W.3d 258, 262–63 (Tex. Crim. App. 2014) (regarding
automatic imposition of sentence of life without parole for a juvenile). Accordingly,
no error is preserved. See Quick, 557 S.W.3d at 788; Battle, 348 S.W.3d at 30–31.
Appellant’s second issue is overruled.
III. Conclusion
Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Zimmerer, and Spain.
Do Not Publish — Tex. R. App. P. 47.2(b).
4