Stephen Troutz v. State of Texas ( 2010 )

Opinion filed April 15, 2010
In The
Eleventh Court of Appeals
__________
Nos. 11-09-00085-CR & 11-09-00086-CR
__________
STEPHEN TROUTZ, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 396th District Court
Tarrant County, Texas
Trial Court Cause Nos. 1006175D & 1116279W
MEMORANDUM OPINION
These are appeals from judgments adjudicating guilt. Stephen Troutz originally entered
pleas of guilty to the offenses of aggravated assault with a deadly weapon1 and assault causing
bodily injury to a public servant in retaliation for an official duty. 2 The trial court deferred the
adjudication of appellant’s guilt. For the aggravated assault offense, the trial court placed
appellant on community supervision for five years and assessed a $500 fine. For the assault
1
11-09-00085-CR.
2
11-09-00086-CR.
causing bodily injury to a public servant, the trial court placed appellant on community
supervision for three years and assessed a $300 fine. At the hearing on the State’s motions to
adjudicate, appellant entered pleas of true to several of the State’s allegations. In each case, the
trial court found that appellant had violated the terms and conditions of his community
supervision, revoked his community supervision, adjudicated his guilt, and imposed a sentence
of confinement for five years. We affirm.
In his first point, appellant contends that the evidence is factually insufficient to support
the trial court’s decision to adjudicate his guilt for each offense. Appellant is asking this court to
apply the standard stated in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). We note
that the Clewis factual sufficiency standard is not applicable to revocation of community
supervision. Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003, pet. ref=d);
Cochran v. State, 78 S.W.3d 20, 27 (Tex. App.—Tyler 2002, no pet.); Becker v. State, 33
S.W.3d 64 (Tex. App.—El Paso 2000, no pet.); Brumbalow v. State, 933 S.W.2d 298 (Tex.
App.—Waco 1996, pet. ref=d).
Moreover, in a community supervision revocation hearing, the State has the burden of
proving by a preponderance of the evidence that a condition of community supervision has been
violated. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cobb v. State, 851
S.W.2d 871, 874 (Tex. Crim. App. 1993). Proof of one violation of the terms and conditions of
community supervision is sufficient to support the revocation. McDonald v. State, 608 S.W.2d
192 (Tex. Crim. App. 1980); Taylor v. State, 604 S.W.2d 175 (Tex. Crim. App. 1980); Moses v.
State, 590 S.W.2d 469 (Tex. Crim. App. 1979). The trial court is the trier of the facts and
determines the weight and credibility of the testimony. Garrett v. State, 619 S.W.2d 172 (Tex.
Crim. App. 1981); Barnett v. State, 615 S.W.2d 220 (Tex. Crim. App. 1981). A plea of true
alone is sufficient to support the trial court’s determination to revoke. Moses, 590 S.W.2d at
470; Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979). Appellate review of an order
revoking community supervision is limited to the issue of whether the trial court abused its
discretion. Rickels, 202 S.W.3d at 763; Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.
1984).
Appellant has not established that the trial court abused its discretion. In each case, the
first point is overruled.
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In his second point, appellant contends that the trial court abused its discretion when it
assessed his punishment at confinement for five years in each case. Appellant contends that,
while the punishment assessed was within the statutory limits, the length of punishment was
“outside the zone of reasonable disagreement.” We disagree.
Appellant failed to raise his objection at trial and specifically stated that there was no
reason that the sentences could not be imposed. His complaints have not been preserved for
appellate review. TEX. R. APP. P. 33.1; Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App.
1986); Thompson v. State, 243 S.W.3d 774, 775-76 (Tex. App.—Fort Worth 2007, pet. ref’d).
Moreover, we note that the trial court assessed punishment within the range authorized by
the legislature under TEX. PENAL CODE ANN. '' 12.33, 12.34, 22.01(b), and 22.02(a) (Vernon
Supp. 2009). A penalty assessed within the range of punishment established by the legislature
will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984);
Bradfield v. State, 42 S.W.3d 350, 354 (Tex. App.CEastland 2001, pet. ref’d). The second point
is overruled in each case.
The judgments of the trial court are affirmed.
TERRY McCALL
JUSTICE
April 15, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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