Amber Dawn Carreon v. The State of Texas--Appeal from 5th District Court of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00197-CR

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AMBER CARREON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 5th Judicial District Court

Bowie County, Texas

Trial Court No. 01-F0150-005

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Amber Carreon appeals the trial court's judgment revoking her community supervision and sentencing her to two years' confinement in a state jail facility. In her first issue on appeal, Carreon contends the evidence is insufficient to support the trial court's finding that she violated her community supervision. Next, she asks us to find that her punishment is disproportionate to the gravity of her violation of the community supervision agreement. We affirm the judgment.

Procedural Background

On July 8, 2002, Carreon pled guilty to delivering methamphetamine in the amount of less than one gram. See Tex. Health & Safety Code Ann. 481.112(a) (Vernon 2003). That offense is a state jail felony. Tex. Health & Safety Code Ann. 481.112(b) (Vernon 2003). Pursuant to a plea agreement, the trial court found the evidence substantiated Carreon's guilt, but deferred a finding of guilt and placed her on community supervision for a period of five years.

Several months later, Carreon admitted violating her conditions of community supervision. In response, the trial court adjudicated Carreon's guilt April 11, 2003, and sentenced her to a term of imprisonment. The trial court, however, suspended imposition of that sentence for a period of five years and continued her on community supervision with the condition that she spend thirty days in jail (with credit for time she had served pending the adjudication hearing).

On May 7, 2003, the State filed a motion to have Carreon's community supervision revoked because she had allegedly failed to report to her supervision officer on four occasions. After an August 21 hearing, the trial court found Carreon had violated the conditions of her community supervision, revoked her community supervision, and sentenced her to two years' confinement in a state jail facility.

Evidentiary Sufficiency

In her first point of error, Carreon contends the evidence is legally insufficient to support the trial court's finding that she violated the terms of her community supervision. "At a hearing on an application to revoke [community supervision], guilt or innocence is not at issue, and the trial court need not determine the defendant's original criminal culpability, only whether the [defendant] broke the contract made with the trial court to receive [community supervision]." Pierce v. State, 113 S.W.3d 431, 436 (Tex. App. Texarkana 2003, pet. ref'd). Revocation is proper if the evidence is sufficient to support the trial court's finding that the defendant violated the terms of the community supervision agreement with the trial court. Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977); Pierce, 113 S.W.3d at 436 37.

We review a trial court's decision to revoke community supervision under an abuse of discretion standard and examine the evidence in the light most favorable to the trial court's order. Pierce, 113 S.W.3d at 436. A trial court does not abuse its discretion to revoke a defendant's community supervision if the State presents sufficient evidence that the defendant violated at least one term of the community supervision agreement as alleged in the State's motion to revoke. Id. "If the greater weight of credible evidence creates a reasonable belief a defendant has violated a condition of his or her [community supervision], the trial court's order of revocation did not abuse its discretion and must be upheld." Id. (citing Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)). The trial court is the sole judge of credibility of the witnesses and the weight to be given to witness testimony. In re B.J., 100 S.W.3d 448, 453 (Tex. App. Texarkana 2003, no pet.). In this case, the trial court found Carreon had not reported to her supervision officer April 4, 10, 15, and 25, 2003, as required by the terms of her community supervision. Carreon testified at the hearing she did not report April 4 because she thought she was told she did not have to report until Monday, April 7. Carreon also told the trial court she did not report April 10 and 15 because she was ill. According to Carreon's testimony, she did not report April 25 because she was bonding a friend out of jail, but she had attempted several times on that date to call and inform her supervision officer of the reason she would not be reporting on that date.

Jerry Funderburk, the Bowie County supervision officer who supervised Carreon's community supervision, testified that on several occasions he instructed Carreon to report every day to Bowie County's "Day Reporting Center." According to Funderburk, however, Carreon failed to report April 10 and April 25. Carreon provided a doctor's excuse for not reporting on the 10th. On the 25th, however, Carreon went to bail a friend out of jail instead of reporting.

Viewing the evidence in the light most favorable to the trial court's verdict, the great weight of credible evidence shows Carreon failed to report to her supervision officer April 25, 2003, as alleged in the State's motion to revoke. Her supervision officer testified she failed to report to the community supervision department April 25. Carreon admitted she did not report to Bowie County's Day Reporting Center April 25, 2003. And, in hindsight, Carreon acknowledged she exercised poor judgment in deciding to miss the appointment with her supervision officer to instead go bail a friend out of jail. Therefore, we cannot say the trial court abused its discretion by finding Carreon had violated the conditions of her community supervision agreement on at least one occasion. We overrule Carreon's first point of error.

Disproportionate Sentence

In her second point of error, Carreon contends the trial court's sentence constitutes a disproportionate punishment, considering the minor nature in which she violated her community supervision agreement. Carreon was convicted of a state jail felony offense, the punishment range for which is not less than 180 days nor more than two years' confinement in a state jail facility. See Tex. Pen. Code Ann. 12.35(a) (Vernon 2003). The trial court sentenced Carreon to two years' confinement.

Traditionally, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, Texas appellate courts have held that a defendant's punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). But in Jackson v. State, 989 S.W.2d 842, 845 (Tex. App. Texarkana 1999, no pet.), we recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App. Texarkana 2002, pet. ref'd); Latham v. State, 20 S.W.3d 63, 68 69 (Tex. App. Texarkana 2000, pet. ref'd).

Our proportionality analysis under both the Eighth Amendment to the United States Constitution and Article I, Section 13 of the Texas Constitution is guided by (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.

Alberto v. State, 100 S.W.3d 528, 530 (Tex. App. Texarkana 2003, no pet.) (referencing Solem v. Helm, 463 U.S. 277, 292 (1983); and Simmons v. State, 944 S.W.2d 11, 15 (Tex. App. Tyler 1996, pet. ref'd)). If we first find that the trial court imposed a sentence that is grossly disproportionate to the offense, then (and only then) will we consider the remaining factors of the Solem test and compare the sentence received to either sentences for similar crimes in the same jurisdiction or to sentences for the same crime in other jurisdictions. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Davis v. State, 905 S.W.2d 655, 664 65 (Tex. App. Texarkana 1995, pet. ref'd).

In the case now before us, Carreon did not present this issue to the trial court. As such, she did not preserve this issue for our review. See Tex. R. App. P. 33.1(a); Alberto, 100 S.W.3d at 529. Moreover, even had Carreon preserved this issue for our review, the record contains no evidence for us to use in comparing the sentence imposed with sentences of other persons in Texas or in other jurisdictions who committed a similar offense yet violated their community supervision in allegedly minor ways. See Alberto, 100 S.W.3d at 530.

Conclusion

For the reasons stated, we affirm the trial court's judgment.

Donald R. Ross

Justice

Date Submitted: May 19, 2004

Date Decided: May 25, 2004

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