Opinion
NUMBER 13-19-00647-CR
08-27-2020
VERONICA FLORES, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Perkes, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Veronica Flores challenges the trial court's revocation of her community supervision by two issues contending that the evidence is insufficient to support the revocation and the sentence was disproportionate to the crime committed in violation of the Fourteenth and Eighth Amendments to the United States Constitution. See U.S. CONST. amends. VIII, XIV. After revoking Flores's community supervision and adjudicating her guilty of theft of property of less than $2,500 with two or more previous convictions, a state jail felony, see TEX. PENAL CODE ANN. § 31.03, the trial court sentenced Flores to incarceration for one year. We affirm.
I. BACKGROUND
Flores pleaded guilty to theft of less than $2,500 with two or more previous convictions, and the trial court placed her on deferred adjudication community supervision for a period of five years. The State filed a motion to revoke community supervision alleging that Flores violated the conditions of community supervision by breaking curfew, testing positive for and using cocaine, failing to report as directed on nine occasions, failing to take a urine drug test on two dates, failing to provide verification of employment, failing to remain in the county unless receiving permission to travel, and failing to pay fees.
At the motion to revoke hearing, Flores pleaded "true" to the allegations that she used and tested positive for cocaine, failed to report as directed on seven occasions, failed to remain in Nueces County by traveling to Travis County without authorization, and failed to pay fees. Flores pleaded "not true" to the other allegations. The trial court found the allegations that Flores admitted committing to be "true." The trial court heard evidence regarding the remaining allegations Flores denied, and it found that the two failure to submit urine drug test allegations were "not true," the breaking curfew allegation was "not true," and that the other challenged allegations were "true." The trial court found that Flores violated the conditions of community supervision as alleged by the State, revoked her community supervision, adjudicated Flores guilty, and sentenced her to one year of confinement. This appeal followed.
II. REVOCATION
By her first issue, Flores contends that the trial court abused its discretion by revoking her community supervision because the evidence is insufficient to support the trial court's finding that she violated the conditions of community supervision by intentionally failing to report to community supervision on two occasions and failing to provide the name of her employer.
A. Standard of Review and Applicable Law
We review the trial court's decision to revoke community supervision under an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). A trial court's decision to revoke community supervision is supported by a single violation. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). A defendant's plea of true, standing alone, sufficiently supports revocation of community supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979).
The State must prove that the defendant violated the conditions of community supervision by a preponderance of the evidence. Rickels, 202 S.W.3d at 763. We 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).
B. Analysis
In her brief, Flores concedes that she pleaded true to several of the State's allegations, and she does not deny that she violated those conditions. Because a plea of "true" alone to any one violation will support revocation of community supervision, on this record, revocation was within the trial court's discretion. See Cole, 578 S.W.2d at 128. Therefore, we cannot conclude that the trial court abused its discretion by revoking Flores's community supervision. See Rickels, 202 S.W.3d at 763. We overrule Flores's first issue.
III. SENTENCE
By her second issue, Flores contends the sentence imposed is disproportionate to the seriousness of the charged offense in violation of the Eighth and Fourteenth Amendments of the United States Constitution. See U.S. CONST. amends. VIII, XIV.
A. Standard of Review and Applicable Law
The trial court's decision on punishment is reviewed for an abuse of discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Quintana v. State, 777 S.W.2d 474, 479-80 (Tex. App.—Corpus Christi-Edinburg 1989, writ ref'd). "Subject only to a very limited, 'exceedingly rare,' and somewhat amorphous Eighth Amendment gross-disproportionality review, a punishment that falls within the legislatively prescribed range, and that is based upon the sentencer's informed normative judgment, is unassailable on appeal." Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006); Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi-Edinburg 2005, pet. ref'd) (explaining that a sentence will most likely not be overturned on appeal if it is assessed within the legislatively determined range).
The Eighth Amendment of the United States Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines, nor cruel and unusual punishment inflicted." U.S. CONST. amend. VIII. The Eighth Amendment applies to punishments imposed by state courts through the Due Process Clause of the Fourteenth Amendment. Id. amend. XIV. This right and almost every constitutional or statutory right can be waived by a "failure to object." Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref'd); Trevino, 174 S.W.3d at 928; Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (concluding that failure by the appellant to object at trial meant that an argument that the sentence was grossly disproportionate to offense was not preserved); see Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) ("As a general rule, an appellant may not assert error pertaining to his sentence or punishment where he failed to object or otherwise raise such error in the trial court."); see also Maza v. State, No. 13-14-00128-CR, 2015 WL 3637821, at *2 (Tex. App.—Corpus Christi-Edinburg June 11, 2015, no pet.) (mem. op., not designated for publication) (prohibiting the appellant from making his Eighth Amendment violation argument for the first time on appeal because the argument was not preserved as he did not object in the trial court); Martinez v. State, No. 13-02-00508-CR, 2003 WL 22681385, at *4 (Tex. App.—Corpus Christi-Edinburg Nov. 13, 2003, pet. ref'd) (mem. op., not designated for publication) (determining that the appellant did not preserve his Eighth Amendment excessive sentence challenge because he did not object in the trial court). To preserve a complaint of disproportionate sentencing, the defendant must make a timely, specific objection to the trial court or raise the issue in a motion for new trial. Kim, 283 S.W.3d at 475; Noland, 264 S.W.3d at 151-52; Trevino, 174 S.W.3d at 927-28; Quintana, 777 S.W.2d at 479 (holding defendant waived cruel and unusual punishment argument by failing to object).
B. Analysis
Here, Flores neither objected when the trial court pronounced the sentence, nor complained, in any post-trial motion, that the sentence was excessive or violated the Eighth Amendment. Therefore, Flores has failed to preserve this issue for our review. See TEX. R. APP. P. 33.1; Kim, 283 S.W.3d at 475; Noland, 264 S.W.3d at 151-52; Trevino, 174 S.W.3d at 927-28; Quintana, 777 S.W.2d at 479. Moreover, even if Flores had preserved error, a punishment falling within the limits prescribed by a valid statute, as in this case, is not excessive, cruel, or unusual. See Trevino, 174 S.W.3d at 928. Therefore, because Flores failed to object to sentence and the sentence is within the punishment range, we overrule Flores's second issue. See TEX. R. APP. P. 33.1; Kim, 283 S.W.3d at 475; Noland, 264 S.W.3d at 151-52; Trevino, 174 S.W.3d at 927-28; Quintana, 777 S.W.2d at 479.
Flores requests that this Court analyze whether the sentence imposed was disproportionate to the crime committed by applying the factors as set out in Solem v. Helm, 463 U.S. 277, 290-91 (1983). However, in the trial court, Flores failed to raise the Solem factors or present any evidence of the Solem factors including, evidence of the sentences imposed on other criminals in the same jurisdiction and the sentences imposed for commission of the same crime in other jurisdictions. See id. at 292. Thus, we are unable to perform a Solem analysis. See Sullivan v. State, 975 S.W.2d 755, 757 (Tex. App.—Corpus Christi-Edinburg 1998, no pet.); see also Evans v. State, No. 13-18-00658-CR, 2019 WL 3955459, at *3 (Tex. App.—Corpus Christi-Edinburg Aug. 22, 2019, no pet.) (mem. op., not designated for publication) (relying on Sullivan and declining to apply Solem factors because the appellant failed to raise the Solem factors in the trial court).
IV. CONCLUSION
We affirm the trial court's judgment.
JAIME TIJERINA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 27th day of August, 2020.