Mendez, Carlos Rojas v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Opinion filed October 24, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01270-CR

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CARLOS ROJAS MENDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 679927

O P I N I O N

Appellant pleaded guilty to a felony offense of indecency with a child, and the court assessed ten years probation. Eight years later, the State moved to revoke probation. The trial court granted the revocation and assessed punishment of four years in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant complains that (1) the State provided insufficient evidence for the revocation of probation, and (2) the sentence imposed on the appellant is cruel and unusual punishment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant pleaded guilty to indecency with a child in return for a sentence of ten years probation. Included in the sentence was a requirement that appellant complete a sex offender treatment evaluation and participate fully in a treatment program. After serving eight years of his probation, appellant began missing some of the required classes. As a result of appellant s absences, the State filed a Motion to Revoke Probation. The court found appellant had violated his probation requirements and sentenced him to four years incarceration.

STANDARD OF REVIEW

An order revoking probation must be supported by a preponderance of the evidence. Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974). The greater weight of the credible evidence must create a reasonable belief that the defendant has violated a condition of his probation. Id. When the sufficiency of the evidence is challenged, the evidence is viewed in the light most favorable to the trial court s findings. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Montoya v. State, 832 S.W.2d 138, 140 (Tex. App.CFort Worth 1992, no pet.). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Naquin v. State, 607 S.W.2d 583, 586 (Tex. Crim. App. 1980). Appellate review of an order revoking probation is limited to a determination of whether the trial court abused its discretion. Flournoy v. State, 589 S.W.2d 705, 709 (Tex. Crim. App. 1979).

DISCUSSION

Appellant raises five points of error. In his first three issues, appellant contends there was insufficient evidence to support the revocation of his probation. Therefore, we will address these issues together. In his last two issues, appellant argues, under Texas and United States Constitutions, his four-year incarceration sentence constitutes cruel and unusual punishment.

I. Insufficient Evidence in Revocation of Probation

We will first address appellant s claims that the evidence was insufficient for a revocation of probation. In this case, the evidence was sufficient because the State showed (1) the appellant violated one condition of probation, and (2) the appellant failed to object to any ambiguity in the motion to revoke by filing a motion to quash. The State presented sufficient evidence to revoke appellant s probation.

First, for the State to meet its burden of proof in revoking probation, it needs to show only one violation of the condition of probation. See Rodriquez v. State, 2 S.W.3d 744, 746 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (citing Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980)). One violation alone will satisfy the State s burden of preponderance of the evidence. See id. The State s order modifying conditions of probation requires appellant to attend a sex offender treatment program. One of the amendments states the following:

(3) Submit to a Sex Offender Treatment Evaluation by 2-20-99. Attend and participate fully in an approved treatment program, including aftercare, with a State of Texas registered Sex Offender Provider and submit written proof to your Community Supervision Officer until successfully completed or until further order of the Court.

Appellant did not successfully complete this program. In fact, from May through September of 2001, appellant attended only ten of twenty-one required meetings. Appellant admitted he did not regularly attend the meetings, but used lack of money and embarrassment as excuses for his failure. In short, the record supports the trial court s finding that appellant failed to fully participate in a treatment program.

Second, there was no ambiguity in the motion to revoke probation. The State met its burden in revoking probation, even though appellant argues the State failed to provide an adequate description of the sex offender program. Appellant argues the trial court abused its discretion because appellant s revocation order states the defendant failed to participate in the community-based program . . ., when in fact it was never ordered he attend a community-based program. Appellant also argues because the record failed to show the program was staffed with a registered therapist or the record failed to show the program was approved by the State, the State failed to meet its burden. We disagree.

The proper method for challenging a motion to revoke is a motion to quash. See Burkett v. State, 485 S.W.2d 578, 580 (Tex. Crim. App. 1972). The allegations in a motion to revoke do not have to be alleged with the same particularity required in an indictment. See Labelle v. State, 720 S.W.2d 101, 104 (Tex. Crim. App. 1986). If appellant did not receive full and fair notice of the offense he would be called to defend, he should have filed a motion to quash. See Mitchell v. State, 608 S.W.2d 226, 228B229 (Tex. Crim. App. 1980). Appellant did, however, receive a full and fair notice of the claim. He was fully aware of the offense he was going to have to defend against. The motion to revoke clearly alleged that appellant was in violation of three conditions, including the failure to complete his treatment program. There is no ambiguity in the probation violation, and any possible ambiguity should have been addressed with a motion to quash.

Moreover, a proceeding to revoke probation is neither civil nor criminal in nature, but is an administrative hearing. See Bradley v. State, 564 S.W.2d 727, 729 (Tex. Crim. App. 1978) (en banc). The probation revocation hearing is merely an extension of the original sentencing portion of the defendant s trial. See Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). The State s burden at this hearing is not to prove the veracity of every word in every motion, but instead is to prove that the defendant is the same individual as the one originally sentenced and that he violated a term or condition of probation. See id; see also Burke v. State, 930 S.W.2d 230, 232 (Tex. App.CHouston [14th Dist.] 1996, pet. ref d). Appellant conceded he was the same person who pleaded guilty to indecency with a child eight years ago, and the State proved the probation violation. Therefore, there was no abuse of discretion simply because community-based was inserted in the motion to revoke order or because the record failed to prove the program was approved by the State.

II. Cruel and Unusual Punishment

Next, we address appellant=s argument his punishment was cruel and unusual. Most importantly, to complain to this Court of a sentence being cruel and unusual at the trial court level, appellant must first object. He did not. Second, even if appellant had objected, the imposition of a sentence within the statutory limits is not cruel and unusual punishment. Additionally, serving time of a probated sentence is not equivalent to serving time for an incarcerated sentence. The trial judge=s assessment of a four-year incarceration sentence is not cruel and unusual punishment.

First, appellant did not preserve error by objecting at the trial court level that his punishment was cruel and unusual. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); see also Jacobs v. State, 80 S.W.3d 631, 632B633 (Tex. App.CTyler 2002, no pet.); Tex. R. App. P. 33.1. By failing to object to the sentence, appellant failed to preserve the issue for appeal. See Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref d). As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion . . . . Tex. R. App. P. 33.1(a). Appellant did not object to his sentence violating his constitutional rights at the time the sentence was assessed, nor did he raise this issue in a post-trial motion. Therefore, appellant s argument that the sentence violated his constitutional rights has been waived.

Second, even if appellant had 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. See Jacobs, 80 S.W.3d at 633. Courts have repeatedly held punishment that falls within the statutory guidelines is not excessive. See id.; see also Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Here, appellant pleaded guilty to indecency with a child, a third degree felony. See Tex. Pen. Code Ann. ' 21.11(c). The statutory limitations for a third degree felony are anywhere from two years to ten years in prison. See Tex. Pen. Code Ann. ' 12.34(a). The trial court assessed punishment at the maximum of ten years, but suspended this punishment for ten years= probation. Appellant s ten-year sentence was within the statutory limits, and therefore it is not cruel and unusual punishment. See Harris, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952. [W]here the punishment assessed by the judge or jury was 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). After revoking probation, appellant received an incarceration sentence of only four years. Four years falls well within the range set forth by the legislature. See Tex. Pen. Code Ann. ' 21.11(c); Tex. Pen. Code Ann. ' 12.34(a). Therefore, appellant s current punishment is not prohibited as cruel, unusual, or excessive.

Additionally, appellant argues because he has served eight years of a ten-year probated sentence, he should receive credit for those eight years and the maximum sentence the trial court could assess should be two years. We disagree. Appellant is arguing time spent fulfilling probation is equivalent to a prison sentence. This belief is rejected by the courts and by the Code of Criminal Procedure. See Krumboltz v. State, 945 S.W.2d 176, 177 (Tex. App.CSan Antonio 1997, no writ); Pequeno v. State, 710 S.W.2d 709, 711 (Tex. App.CHouston [1st Dist.] 1986, pet. ref d) (finding that imposition of maximum sentence following probation was not excessive as to render punishment cruel and unusual); Tex. Code Crim. Proc. Ann. art 42.12 ' 23(a) (Vernon Supp. 2002) (following revocation a judge may dispose of a matter as if there was no community supervision). Even though appellant served eight of his ten years of probation, the judge can assess punishment anywhere in the statutory range. See Buerger v. State, 60 S.W.3d 358, 365 (Tex. App.CHouston [14th Dist.] 2001, no pet.). The judge assessed punishment within the statutory range, and therefore appellant s sentence is not cruel and unusual.

In conclusion, the State presented sufficient evidence to revoke appellant s probation. The State showed a violation of probation and any ambiguity should have been presented in a motion to quash. Second, appellant failed to object at the trial level his sentence was cruel and unusual. By failing to object, he waived the right to raise this on appeal. Nonetheless, the trial court assessed punishment within the statutory limits, which shows the punishment was not cruel and unusual. We overrule all five of appellant s issues, and affirm the judgment of the trial court.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Opinion filed October 24, 2002

Panel consists of Chief Justice Brister, Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.3(b).