NUMBER 13-08-00244-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ELIBERTO GARZA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court of Nueces County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion by Justice Benavides
After a revocation hearing, the trial court revoked Appellant, Eliberto Garza’s,
deferred adjudication community supervision, adjudicated his guilt, and sentenced him to
serve two, concurrent, thirty-year terms in prison. Garza raises two issues on appeal. We
affirm. I. BACKGROUND
On August 24, 2006, Garza was indicted on two counts of sexual assault of a child
younger than the age of fourteen. See TEX . PENAL CODE ANN . § 22.021 (Vernon Supp.
2008). On October 16, 2006, Garza pleaded guilty to both counts. Pursuant to a plea
agreement, the trial court deferred adjudication and placed Garza on community
supervision. See TEX . CODE CRIM . PRO . ANN . art. 42.12 (Vernon Supp. 2008).
On September 17, 2007, the State filed a motion to revoke Garza’s community
supervision and to adjudicate his guilt. The State alleged Garza violated several conditions
of his community supervision by using narcotics, failing to report to his supervisor, and
failing to pay the required fees. On April 7, 2008, the trial court held a hearing on the
State’s motion. Garza answered “true” to the allegations, and the trial court revoked his
community supervision, adjudicated him guilty, and sentenced him to serve two concurrent
thirty-year terms in prison. This appeal ensued.
II. INSUFFICIENT EVIDENCE TO ADJUDICATE GUILT
In his first issue, Garza asserts that the “trial court abused its discretion when it
adjudicated the defendant’s guilt and imposed a thirty year [sic] sentence to the [Texas
Department of Criminal Justice-Institutional Division] without considering substance abuse
treatment.” Rephrased, Garza argues that the evidence is insufficient to support
revocation and that the trial court failed to consider placing him in a substance abuse
felony punishment facility.
We review the revocation of community supervision under an abuse of discretion
standard. Herrera v. State, 951 S.W.2d 197, 199 (Tex. App.–Corpus Christi 1997, no pet.)
(citing Wester v. State, 542 S.W.2d 403, 405 (Tex. Crim. App. 1976)). We review the
2 evidence in the light most favorable to the trial court’s decision. Id. The State has the
burden to prove, by a preponderance of the evidence, the violations alleged in its motion
for revocation. Jones v. State, 112 S.W.3d 266, 268 (Tex. App.–Corpus Christi 2003, no
pet.). “Pleas of true, standing alone, support revocation of community supervision.” Id.
(citing Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); Rivera v.
State, 688 S.W.2d 659, 660 (Tex. App.–Corpus Christi 1985, no pet.)); see also Grant v.
State, No. 13-08-00424-CR, 2009 WL 1361701, at *1 (Tex. App.–Corpus Christi Mar. 5,
2009, pet. struck) (mem. op., not designated for publication).
At the revocation hearing, Garza answered “true” to the allegations in the motion to
revoke. Additionally, Garza specifically admitted using narcotics, failing to report, and
failing to pay the required fees, all in violation of his community supervision. Viewing the
evidence in the light most favorable to the trial court’s decision, we conclude that the
evidence is sufficient to support revocation. See Jones, 112 S.W.3d at 268.
A. Predetermined Sentence
In a subissue, Garza contends that the trial court failed to consider the full range of
punishment. Due process requires that the trial court consider the full range of punishment
for an offense, to consider the evidence, and not to merely render a predetermined
sentence. Howard v. State, 830 S.W.2d 785, 787 (Tex. App.–San Antonio 1992, pet.
ref’d). However, in order to preserve this complaint for our review, Garza must show that
he made a timely request, objection, or motion to the trial court. TEX . R. APP. P. 33.1.; see
Hull v. State, 67 S.W.3d 215, 218 (Tex. Crim. App. 2002). The record indicates that Garza
3 failed to do so; therefore, he did not preserve this subissue for appellate review.1 Hull, 67
S.W.3d 218.
B. “Enrage the Court”
Garza raises another subissue claiming that “the State failed to meet its burden by
a preponderance of the evidence and purposely brought up the underlying offense to
enrage the court which should have continued him on community supervision.” Garza cites
no case law nor makes any reference to the record to substantiate this assertion, therefore
he has not properly presented this issue for our review. See TEX . R. APP. P. 38.1(i); City
of Corpus Christi v. Taylor, 126 S.W.3d 712, 719 n.4 (Tex. App.–Corpus Christi 2004, pet.
withdrawn). We overrule Garza’s first issue.
1 W e note that in Hernandez v. State, we held that a defendant has an absolute right to an im partial judge during sentencing, and that “a defendant m ay com plain for the first tim e on appeal about a trial court's refusal (i.e., lack of im partiality) to consider the full range of punishm ent— so long as the trial judge's conduct is so egregious as to deem the judge biased on the m atter of punishm ent.” 268 S.W .3d 176, 178 (Tex. App. –Corpus Christi 2008, no pet.). Garza does not argue that the trial court’s conduct was so egregious as to indicate bias in the m atter of punishm ent. See, e.g., id. (holding that bias exists where trial court sum m arily doubled the prior sentence). Garza asserts that the trial court should have considered “his current circum stances,” and that “the trial court failed to consider placem ent at a substance abuse felony punishm ent center.” The record does not indicate that Garza actually m ade this request to the trial court. Actually, in response to questioning from his attorney, Garza adm itted that he understood that “the Court is lim ited on what he can do with you,” and “that there [are] very little options available for any kind of drug rehab” as a condition of probation. Additionally, while adm onishing Garza regarding his rights in the revocation hearing, the trial court stated:
If I find that you have violated term s and condition [sic] of your probation [sic] several things I can do. One, I can leave it the way it is, do nothing. I could sanction you or I could revoke your probation and send you to the Texas Departm ent of Crim inal Justice Institutional Division for a period of up to life and assess $10,000 on each count.
“Based on the evidence presented,” the trial court adjudicated Garza’s guilt and pronounced the sentence. W hile the trial court knew the sentences could run consecutively, it ordered the sentences to run concurrently.
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NUMBER 13-08-00244-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ELIBERTO GARZA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court of Nueces County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion by Justice Benavides
After a revocation hearing, the trial court revoked Appellant, Eliberto Garza’s,
deferred adjudication community supervision, adjudicated his guilt, and sentenced him to
serve two, concurrent, thirty-year terms in prison. Garza raises two issues on appeal. We
affirm. I. BACKGROUND
On August 24, 2006, Garza was indicted on two counts of sexual assault of a child
younger than the age of fourteen. See TEX . PENAL CODE ANN . § 22.021 (Vernon Supp.
2008). On October 16, 2006, Garza pleaded guilty to both counts. Pursuant to a plea
agreement, the trial court deferred adjudication and placed Garza on community
supervision. See TEX . CODE CRIM . PRO . ANN . art. 42.12 (Vernon Supp. 2008).
On September 17, 2007, the State filed a motion to revoke Garza’s community
supervision and to adjudicate his guilt. The State alleged Garza violated several conditions
of his community supervision by using narcotics, failing to report to his supervisor, and
failing to pay the required fees. On April 7, 2008, the trial court held a hearing on the
State’s motion. Garza answered “true” to the allegations, and the trial court revoked his
community supervision, adjudicated him guilty, and sentenced him to serve two concurrent
thirty-year terms in prison. This appeal ensued.
II. INSUFFICIENT EVIDENCE TO ADJUDICATE GUILT
In his first issue, Garza asserts that the “trial court abused its discretion when it
adjudicated the defendant’s guilt and imposed a thirty year [sic] sentence to the [Texas
Department of Criminal Justice-Institutional Division] without considering substance abuse
treatment.” Rephrased, Garza argues that the evidence is insufficient to support
revocation and that the trial court failed to consider placing him in a substance abuse
felony punishment facility.
We review the revocation of community supervision under an abuse of discretion
standard. Herrera v. State, 951 S.W.2d 197, 199 (Tex. App.–Corpus Christi 1997, no pet.)
(citing Wester v. State, 542 S.W.2d 403, 405 (Tex. Crim. App. 1976)). We review the
2 evidence in the light most favorable to the trial court’s decision. Id. The State has the
burden to prove, by a preponderance of the evidence, the violations alleged in its motion
for revocation. Jones v. State, 112 S.W.3d 266, 268 (Tex. App.–Corpus Christi 2003, no
pet.). “Pleas of true, standing alone, support revocation of community supervision.” Id.
(citing Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); Rivera v.
State, 688 S.W.2d 659, 660 (Tex. App.–Corpus Christi 1985, no pet.)); see also Grant v.
State, No. 13-08-00424-CR, 2009 WL 1361701, at *1 (Tex. App.–Corpus Christi Mar. 5,
2009, pet. struck) (mem. op., not designated for publication).
At the revocation hearing, Garza answered “true” to the allegations in the motion to
revoke. Additionally, Garza specifically admitted using narcotics, failing to report, and
failing to pay the required fees, all in violation of his community supervision. Viewing the
evidence in the light most favorable to the trial court’s decision, we conclude that the
evidence is sufficient to support revocation. See Jones, 112 S.W.3d at 268.
A. Predetermined Sentence
In a subissue, Garza contends that the trial court failed to consider the full range of
punishment. Due process requires that the trial court consider the full range of punishment
for an offense, to consider the evidence, and not to merely render a predetermined
sentence. Howard v. State, 830 S.W.2d 785, 787 (Tex. App.–San Antonio 1992, pet.
ref’d). However, in order to preserve this complaint for our review, Garza must show that
he made a timely request, objection, or motion to the trial court. TEX . R. APP. P. 33.1.; see
Hull v. State, 67 S.W.3d 215, 218 (Tex. Crim. App. 2002). The record indicates that Garza
3 failed to do so; therefore, he did not preserve this subissue for appellate review.1 Hull, 67
S.W.3d 218.
B. “Enrage the Court”
Garza raises another subissue claiming that “the State failed to meet its burden by
a preponderance of the evidence and purposely brought up the underlying offense to
enrage the court which should have continued him on community supervision.” Garza cites
no case law nor makes any reference to the record to substantiate this assertion, therefore
he has not properly presented this issue for our review. See TEX . R. APP. P. 38.1(i); City
of Corpus Christi v. Taylor, 126 S.W.3d 712, 719 n.4 (Tex. App.–Corpus Christi 2004, pet.
withdrawn). We overrule Garza’s first issue.
1 W e note that in Hernandez v. State, we held that a defendant has an absolute right to an im partial judge during sentencing, and that “a defendant m ay com plain for the first tim e on appeal about a trial court's refusal (i.e., lack of im partiality) to consider the full range of punishm ent— so long as the trial judge's conduct is so egregious as to deem the judge biased on the m atter of punishm ent.” 268 S.W .3d 176, 178 (Tex. App. –Corpus Christi 2008, no pet.). Garza does not argue that the trial court’s conduct was so egregious as to indicate bias in the m atter of punishm ent. See, e.g., id. (holding that bias exists where trial court sum m arily doubled the prior sentence). Garza asserts that the trial court should have considered “his current circum stances,” and that “the trial court failed to consider placem ent at a substance abuse felony punishm ent center.” The record does not indicate that Garza actually m ade this request to the trial court. Actually, in response to questioning from his attorney, Garza adm itted that he understood that “the Court is lim ited on what he can do with you,” and “that there [are] very little options available for any kind of drug rehab” as a condition of probation. Additionally, while adm onishing Garza regarding his rights in the revocation hearing, the trial court stated:
If I find that you have violated term s and condition [sic] of your probation [sic] several things I can do. One, I can leave it the way it is, do nothing. I could sanction you or I could revoke your probation and send you to the Texas Departm ent of Crim inal Justice Institutional Division for a period of up to life and assess $10,000 on each count.
“Based on the evidence presented,” the trial court adjudicated Garza’s guilt and pronounced the sentence. W hile the trial court knew the sentences could run consecutively, it ordered the sentences to run concurrently. “In the absence of a clear showing to the contrary, a reviewing court will presum e that the trial court was neutral and detached.” Jaenicke v. State, 109 S.W .3d 793, 796 (Tex. App.–Houston [1st Dist.] 2003, pet. ref’d). Therefore, Garza’s failure to object is not excused by Hernandez.
4 III. GROSS DISPROPORTIONALITY
In his second issue, Garza argues, “[t]he trial court’s thirty year [sic] sentence
violated the defendant’s Eight Amendment right against cruel and unusual punishment.”
The permissible sentence range for aggravated sexual assault is five years to ninety-nine
years. See TEX . PENAL CODE ANN . § 12.32 (Vernon 2003) (providing the sentence for first-
degree felonies); id. § 22.021 (making the sexual assault of a child a first-degree felony).
The trial court sentenced Garza to two terms of thirty years’ imprisonment to run
concurrently.
To preserve this complaint for our review, Garza must have made a timely objection,
motion, or request to the trial court. TEX . R. APP. P. 33.1.; see Hull, 67 S.W.3d at 218. At
the time the trial court pronounced the sentence, Garza did not object or make any
requests or motions regarding the sentencing. We conclude, therefore, that Garza has
waived this complaint. We overrule Garza’s second issue on appeal.
IV. CONCLUSION
Having overruled both of Garza’s issues, we affirm the judgment of the trial court.
__________________________ GINA M. BENAVIDES, Justice
Do not publish. See TEX . R. APP. P. 47.2(b)
Memorandum Opinion delivered and filed this the 28th day of August, 2009.