No. 01-09-01043-CR
Opinion issued January 27, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Case No. 1220706.
Panel consists of Justices JENNINGS, ALCALA, and SHARP.
TERRY JENNINGS, Justice.
Appellant, Odair Jose Reyes, pleaded guilty to the offense of stalking, and the trial court deferred adjudication of his guilt, placed him on community supervision for four years, and assessed a fine of $100. The State subsequently filed a motion to adjudicate appellant's guilt, alleging several violations of the conditions of his community supervision. After hearing evidence on the motion, the trial court found appellant guilty of stalking and assessed his punishment at confinement for seven years. In two points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction and the punishment is excessive and disproportionate to the offense committed. We affirm.
Background
On July 8, 2009, the trial court deferred adjudication of appellant's guilt and placed him on community supervision for four years with terms and conditions, which read, in pertinent part, as follows: "You're not to contact the complainant in person, in writing, by telephone, via e-mail, via internet, no third party, or by any other means, or for any other reason except as specified by the Court." Community Supervision Officer A. Walls testified that the terms and conditions of community supervision were explained to appellant and he had a chance to ask questions before signing a document indicating that he understood them. She explained that appellant was never given "specific permission . . . to contact the complainant." The complainant testified that she had had a prior dating relationship with appellant for approximately three years. She explained that prior to his pleading guilty to stalking her, appellant "constantly" called her and, when she "quit answering [his] phone calls and [] messages," he began to drive by her house to "try to see [her]." If her parents' cars were at her house, appellant would leave, but if there were not any cars there, or just her car or her brother's, "he would knock on the door [or] ring the door bell." The complainant explained that no one would answer the door, and appellant would eventually leave. However, she began to get "scared and nervous" because appellant "was coming by a lot" and he had "violent tendencies." On July 23, 2009, after the trial court had placed appellant on community supervision, the complainant's father had dropped her off at a "Metro Park and Ride" around 6:00 a.m. As she was walking to get onto a bus, appellant approached her and attempted to speak with her. The complainant explained that because she did not want to talk to him, she "tried to ignore him and get on the bus, but he [got] in front of [her]." She described appellant as "very persistent in trying to continue the conversation." Appellant asked the complainant why she did not call him, answer his phone calls, and if she had been talking "to other boyfriends." Appellant had a lunch with him in a Tupperware container that he tried to give to the complainant, which she refused. She told him that she had to go to school, and she tried to get on to the bus, but appellant would not let her. The complainant then "walked back downstairs, so as to not make a scene, because there [were] a lot of people there." The complainant explained that appellant began calling her "the day that he got out" of jail and placed on community supervision. Thus, she had her mother's telephone with her at the Park and Ride because her father was trying to get the text messages and voice mails from her cellular telephone that appellant had previously sent to her. After the complainant took out her mother's cellular telephone to call her father or for emergency assistance, appellant took the telephone from her and ran to his car. She "got in the car with him because all [she] could think about was getting the cell phone back." The complainant "struggle[d]" with appellant and tried to do "anything to prolong him from" leaving. After she spoke with appellant, calmed him down, and got her phone back, she left his car, called her father, and told him what had just happened. The complainant explained that although she is afraid of appellant, she only got into the car in order to retrieve the phone; she "quit thinking at that point in time." The complainant's father testified that appellant had dated his daughter in the past and he had helped her obtain a restraining order against appellant. On July 23, 2009, he drove his daughter to the Park and Ride at about 6:10 a.m. to drop her off for work. Approximately fifteen minutes later, when he was almost home, he received a phone call from his daughter who "was pretty upset," "hysterical." The complainant's father then decided to drive down "Walter's Road" because appellant's subdivision is "right off Walter's Road." As he neared appellant's subdivision, he saw appellant driving in a "grayish S.U.V." Appellant was wearing a bright white T-shirt, as described to him by his daughter. The complainant's father noted that he had had additional contact with appellant that day when appellant began texting his daughter's cellular telephone. He explained that he had his daughter's telephone because he "was going to have the text messages transcribed off of by T-mobile and bring those along with the cell phone itself to the D.A.'s office to take whatever action" necessary. Appellant testified that on the morning of July 23, 2009, he was at the Park and Ride to drop off a friend. He saw the complainant at the bus stop, and, when she "said hi," he said "hi" and gave her a hug. He asked her, "What happened? You got big. Are you pregnant or something?" Although he knew that he had been ordered not to speak to the complainant, he explained that he had done so only because he ran into her at the Park and Ride and he did not go there to see her. Appellant admitted that he had called the complainant's cellular telephone that day, but only to speak with her father to "tell him that [he] was sorry." Appellant further admitted that he had also, through a text message, threatened to kill the complainant, but he did not mean it. He stated that he "never ended up with [the complainant's] phone" and claimed that she "probably made up the story about him grabbing her phone." On cross-examination, appellant admitted that he had "violated" his conditions of probation by speaking with the complainant, but asserted, "I have done nothing wrong." Sufficiency of the Evidence
In his first point of error, appellant argues that the evidence is legally and factually insufficient to support the trial court's adjudication of his guilt for stalking because the State failed to prove by a preponderance of the evidence that he had violated the no-contact condition of his community supervision. In a community supervision revocation hearing, the State must prove by a preponderance of the evidence that the defendant violated the terms and conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). This standard is met when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of community supervision as alleged by the State. Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983); Akbar v. State, 190 S.W.3d 119, 123 (Tex. App.-Houston [1st Dist.] 2005, no pet.). The trial judge is the sole trier of the facts and determines the credibility of the witnesses and the weight to be given their testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); Amado v. State, 983 S.W.2d 330, 332 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd). Proof of a single violation is sufficient to support a revocation. Akbar, 190 S.W.3d at 123. Appellate review of a trial court's order revoking community supervision is limited to determining whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006.) We examine the evidence in the light most favorable to the trial court's order. Id. We note that a factual sufficiency review, as urged by appellant, is inapplicable to revocation proceedings. Johnson v. State, 943 S.W.2d 83, 85 (Tex. App.-Houston [1st Dist.] 1997, no writ); see also Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.-Fort Worth 2007, pet. ref'd); Becker v. State, 33 S.W.3d 64, 66 (Tex. App.-El Paso 2000, no pet.). Instead, we review the evidence in the light most favorable to the trial court's order to determine whether the State proved, by a preponderance of the evidence, that appellant violated the terms of his community supervision by approaching the complainant and speaking with her. Appellant argues that the State failed to prove by a preponderance of the evidence that he violated the no-contact condition of his community supervision because (1) he "testified that he never planned to meet [the complainant] at the bus stop because he was taking a friend name[d] Mario to the bus stop for a trip to Chicago," (2) he "denied that he took the complainant's cell phone from her," (3) although he "may have called the complainant's cell phone, her father answered the phone," and (4) the State "failed to provide any proof that appellant left voicemails for the complainant or sent text messages to her cell phone apart from the testimony of the complainant." Here, the complainant testified that appellant approached her at the Park and Ride, spoke with her repeatedly, and took her cellular telephone. Her father further testified that appellant had previously called the complainant's cellular telephone that day. Furthermore, appellant testified that he spoke with the complainant that day, and he admitted that speaking with the complainant violated his community supervision. Viewing the evidence in the light most favorable to the order of the trial court, we hold that the evidence is sufficient to support the trial court's finding that appellant violated a condition of his community supervision. Accordingly, we hold that the trial court did not abuse its discretion in adjudicating appellant's guilt. We overrule appellant's first point of error. Excessive Punishment
In his second point of error, appellant argues that his punishment of confinement for seven years is excessive and disproportionate to the crime committed because his conduct did not involve any type of violence or threats, the complainant "did not fear for her safety," he had been on community supervision for less than two months, and he had never been convicted of a felony. He asserts that his punishment is cruel and unusual. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. The State argues that because appellant neither objected to the alleged disproportionality of the sentence in the trial court, nor raised the issue in a post-trial motion, appellant has not preserved this argument for our review. To preserve error for appellate review, a timely and reasonably specific objection, followed by an adverse ruling is required. TEX. R. APP. P. 33.1(a); Jacoby v. State, 227 S.W.3d 128, 130 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (citing Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991)). The failure to object to an alleged disproportionate sentence in the trial court or in a post-trial motion waives any error. Jacoby, 227 S.W.3d at 130; See, e.g., Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). Here, appellant neither objected to the alleged disproportionality of the sentence in the trial court, nor raised the issue in a post-trial motion. His argument, therefore, is not preserved for review. See TEX. R. APP. P. 33.1(a). Accordingly, we overrule appellant's second point of error. Conclusion
We affirm the judgment of the trial court.