Jarvis Dwhirl Ingram v. State of Texas--Appeal from 385th District Court of Midland County

Opinion filed July 31, 2008

In The

Eleventh Court of Appeals

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 No. 11-07-00085-CR

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 JARVIS DWHIRL INGRAM, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR30302

M E M O R A N D U M O P I N I O N

This is an appeal from a judgment revoking community supervision. The trial court convicted Jarvis Dwhirl Ingram, appellant, upon his plea of guilty, of the third degree felony offense of evading arrest and detention in a vehicle and assessed his punishment at confinement for five years and a $1,500 fine. Pursuant to the plea bargain agreement, the trial court suspended the imposition of the sentence and placed appellant on community supervision for five years. At the hearing on the State=s motion to revoke, appellant entered pleas of true to some of the allegations that he had violated the terms and conditions of his community supervision. The trial court found that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, and imposed the original sentence. We affirm.

Appellant presents two issues on appeal. In his first issue, he contends that the trial court violated his constitutional rights (1) because the trial court denied his motion for continuance and (2) because the evidence was insufficient to establish several of the alleged community supervision violations. In his second issue, he contends that the trial court improperly rendered his punishment and that the punishment was unduly harsh and excessive.

We review a trial court=s ruling on a motion for continuance for abuse of discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007); Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). To establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his motion. Gallo, 239 S.W.3d at 764; Janecka, 937 S.W.2d at 468. A bare assertion that counsel did not have adequate time to prepare for trial is not proof of prejudice. See Renteria v. State, 206 S.W.3d 689, 702 (Tex. Crim. App. 2006); Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995); Wilson v. State, 195 S.W.3d 193, 198 (Tex. App.CSan Antonio 2006, no pet.).

Appellant=s counsel filed a motion for continuance on the date of the revocation hearing. He filed the motion at appellant=s request. In the motion, appellant=s counsel moved for continuance on the ground that appellant Awant[ed] more time to prepare.@ The fact that appellant wanted more time to prepare for trial was not a sufficient ground for continuance. The record does not demonstrate that appellant was prejudiced by the denial of his motion. The trial court did not abuse its discretion in denying appellant=s motion.

Appellant asserts that the evidence was insufficient to establish several of the alleged community supervision violations. We review a trial court=s order revoking community supervision under an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). At a revocation hearing, the State bears the burden of proving 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, 874 (Tex. Crim. App. 1993). Proof of any one violation of the terms and conditions of community supervision is sufficient to support a revocation. McDonald v. State, 608 S.W.2d 192, 200 (Tex. Crim. App. 1980); Taylor v. State, 604 S.W.2d 175, 180 (Tex. Crim. App. 1980); Leach v. State, 170 S.W.3d 669, 672 (Tex. App.CFort Worth 2005, pet. ref=d). A plea of true alone is sufficient to support the trial court=s determination to revoke. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979); Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979); Hays v. State, 933 S.W.2d 659, 661 (Tex. App.CSan Antonio 1996, no pet.). When a plea of true is made, the sufficiency of the evidence to support the revocation may not be challenged. Cole, 578 S.W.2d at 128; Hays, 933 S.W.2d at 661.

Appellant pleaded true to the State=s allegations (1) that, on or about November 11, 2005, he used, possessed, and consumed marihuana; (2) that, on or about January 17, 2006, he used, possessed, and consumed cocaine; (3) that, on or about July 26, 2006, he used, possessed, and consumed cocaine; and (4) that he failed to attend Alcoholics Anonymous meetings as directed. Appellant=s Atrue@ pleas were sufficient to support the trial court=s revocation of his community supervision. Moses, 590 S.W.2d at 470; Cole, 578 S.W.2d at 128; Hays, 933 S.W.2d at 661. Therefore, the trial court did not abuse its discretion in revoking appellant=s community supervision. We overrule appellant=s first issue.

In his second issue, appellant contends that the trial court imposed an excessive sentence. The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. See U.S. Const. amend. VIII. Appellant=s failure to object in the trial court to the alleged excessive sentence waived any error. Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.C Houston [1st Dist.] 2006, no pet.); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d). Moreover, appellant=s sentence was not grossly disproportionate to the offense.

As a general rule, punishment is not excessive, cruel, or unusual if it falls within the range of punishment established by the legislature. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Dale v. State, 170 S.W.3d 797, 799 (Tex. App.CFort Worth 2005, no pet.); Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App.CTexarkana 2002, no pet.). A narrow exception to this rule is recognized where the sentence is grossly disproportionate to the offense. Harmelin v. Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S. 277, 290-91 (1983); Dale, 170 S.W.3d at 799. A[O]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare.@ Solem, 463 U.S. at 289-90 (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)).

Solem had suggested that, in determining the proportionality of a sentence, appellate courts could consider three factors: (1) the gravity of the offense compared with the harshness of the penalty; (2) the sentences imposed for similar crimes in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 292. In light of Harmelin, the test in Solem appears to have been reformulated as an initial threshold comparison of the gravity of the offense with the severity of the sentence. Then, if that initial comparison created an inference that the sentence was grossly disproportionate to the offense, an appellate court should consider the other two Solem factors: (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.CTexarkana 2006, no pet.); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex. App.CDallas 1994, pet. ref=d).

In this case, appellant committed a third degree felony offense of evading arrest and detention in a vehicle. The punishment for a third degree felony is Aimprisonment in the institutional division for any term of not more than 10 years or less than 2 years.@ Tex. Penal Code Ann. ' 12.34(a) (Vernon 2003). In addition, the punishment may include Aa fine not to exceed $10,000.@ Tex. Penal Code Ann. ' 12.34(b) (Vernon 2003). Appellant=s sentence of five years and a fine of $1,500 falls within the range of punishment established by the legislature. Appellant judicially confessed that he committed the offense, and he admitted that he possessed and used cocaine and marihuana during the term of his community supervision. Considering these facts, we cannot say that appellant=s sentence was grossly disproportionate. We overrule appellant=s second issue.

We affirm the judgment of the trial court.

TERRY McCALL

July 31, 2008 JUSTICE

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.