No. 14-08-00965-CR
Opinion filed April 28, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 230th District Court, Harris County, Texas, Trial Court Cause No. 1169123.
Panel consists of Justices ANDERSON, GUZMAN, and BOYCE.
EVA M. GUZMAN, Justice.
Appellant Richard Roy Quintana appeals the trial court's order adjudicating his guilt and sentencing him to five years' confinement for the offense of aggravated assault of a family member. In a single issue, appellant contends that the trial court abused its discretion in adjudicating appellant and sentencing him to five years' confinement. We affirm.
I. BACKGROUND
Appellant was indicted for the offense of aggravated assault of a family member. On June 20, 2008, the trial court deferred a pronouncement of guilt and placed appellant on deferred adjudication community supervision for five years. According to the conditions of appellant's community supervision, he was not to commit an offense against the laws of the State of Texas or any other state nor was he permitted to contact Claudia Quintana, his wife and the victim of the offense. On June 25, 2008, a protective order was issued, which prohibited appellant, among other things, from (1) committing family violence against Claudia, (2) communicating directly with Claudia, (3) communicating a threat to Claudia, and (4) going near the residence or place of employment or business of Claudia. On July 21, 2008, the State filed a motion to adjudicate appellant's guilt alleging that he had committed an offense against the laws of the State of Texas by violating the protective order. Specifically, the motion alleged appellant violated the order by communicating with Claudia in a threatening and harassing manner by following her in his vehicle. At the hearing on the motion to adjudicate, Claudia testified that on July 6, 2008, appellant called her as she was driving away from her home. Appellant drove up behind her and asked her to stop her car and get out so he could talk with her. When she refused, appellant followed her for approximately two and a half blocks. Claudia told appellant he was frightening her and drove toward the constable's office near her neighborhood. Appellant continued to follow her even though she told him she was afraid and asked him to stop harassing her. Claudia drove into the parking lot at the constable's office and honked her horn for someone to come out and help her. When she began honking the car horn, appellant drove away. After appellant left, Claudia exited her car and went into the constable's office. On cross-examination, Claudia admitted that appellant never said he intended to harm her. Appellant testified that on July 6, 2008, he was on his way to church when he drove past Claudia's townhome complex and saw her leaving the gate. He called her to ask if she planned to give him his clothes that were still in their home. Appellant denied making any threatening remarks to Claudia. He drove through the parking lot at the constable's office because it was a shortcut to the church. The trial court asked appellant if he had phoned Claudia since he had been on community supervision. Appellant admitted that he phoned her five or six times, but did not think phone calls were a violation of his community supervision unless they were threatening. The trial court told appellant that if he contacted Claudia in person, in writing, by telephone, via the internet, a third party or any other means for any reason except as specifically permitted by the court, he was in violation of his community supervision. The trial court found the allegation in the motion to adjudicate to be true, adjudicated his guilt, and assessed punishment at five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. II. STANDARD OF REVIEW
We review a trial court's order revoking community supervision under an abuse of discretion standard. See Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006); Moore v. State, 11 S.W.3d 495, 498 (Tex.App.-Houston [14th Dist.] 2000, no pet.). The State's burden of proof in a revocation proceeding is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App. 1993). In conducting our review, we consider all the evidence in the light most favorable to the trial court's finding to determine whether the trial court could have reasonably found that appellant violated the terms and conditions of his probation by a preponderance of the evidence. See Rickels, 202 S.W.3d at 763-64. The State satisfies its burden of proof when the greater weight of credible evidence before the court creates a reasonable belief that it is more probable that the defendant has violated a condition of community supervision. Id.; Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Proof of any one of the alleged violations is sufficient to support a revocation of probation. Moore v. State, 11 S.W.3d at 498. III. ANALYSIS
A. Revocation of Appellant's Community Supervision
In a single issue, appellant contends the trial court erred in sentencing him to five years in prison. Although he only challenges punishment in the wording of his issue, in his brief, appellant argues that the evidence is insufficient to show he violated the protective order. Specifically, appellant argues he did not threaten Claudia. He relies on the cross-examination testimony of Claudia in which she stated that appellant did not say he was going to harm her. Violation of a protective order is prohibited by section 25.07 of the Texas Penal Code. Claudia testified that appellant followed her from her residence to the constable's office repeatedly questioning her on her mobile phone despite her requests that he stop harassing her. Claudia felt so threatened that she was unwilling to leave her car in the constable's parking lot until appellant drove across the street. Although appellant testified that he was merely driving to church and only phoned Claudia to ask about his clothes, the trial court, as the fact-finder, was entitled to believe Claudia's testimony and disbelieve appellant's. Considering all of the evidence in the light most favorable to the trial court's finding, we conclude that the trial court could have reasonably found that appellant violated the terms and conditions of his community supervision. Therefore, the trial court did not abuse its discretion in finding that appellant committed an offense by violating the protective order. B. Appellant's Sentence
The Eighth Amendment to the United States Constitution requires that a criminal sentence be proportionate to the crime for which a defendant has been convicted. Solem v. Helm, 463 U.S. 277, 290 (1983). 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. TEX. R. APP. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996) (noting that defendant waived any error because he presented his argument for first time on appeal). Therefore, by failing to object to the five-year sentence, appellant waived a claim that the sentence was cruel and unusual. Moreover, even if appellant preserved error by objecting, the sentence imposed does not constitute cruel and unusual punishment. The legislature has the power to define crimes and assess punishment. Matchett v. State, 941 S.W.2d 922, 932 (Tex.Crim.App. 1996). Punishment that falls within the statutory guidelines is not excessive. Harris v. State, 656 S.W.2d 481, 486 (Tex.Crim.App. 1983). Where the punishment assessed by the judge or jury is within the limits prescribed by the statute, the punishment is not cruel and unusual within the constitutional prohibition. Samuel v. State, 477 S.W.2d 611, 614 (Tex.Crim.App. 1972). In this case, the trial court adjudicated appellant's guilt for aggravated assault of a family member, a second degree felony. TEX. PENAL CODE ANN. § 22.02 (Vernon 2006). The statutory limitation for a second degree felony is from two years to 20 years in prison. Id. § 12.33. The trial court assessed punishment on the lower end of this range — at five years. Because the sentence was within the statutory limits, appellant's punishment is not prohibited as cruel, unusual, or excessive. See Harris, 656 S.W.2d at 486. We overrule appellant's sole issue. The judgment of the trial court is affirmed.