COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-17-00041-CR
IAN FANCHON GILLESPIE APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY TRIAL COURT NO. CR11992
MEMORANDUM OPINION1
In a single issue, Appellant Ian Fanchon Gillespie appeals the trial court’s
sentence of 35 years’ confinement after its adjudication of his guilt for possession
of a controlled substance. We affirm.
1 See Tex. R. App. P. 47.4. Background
In 2011, Appellant pleaded guilty pursuant to a plea bargain to the first-
degree felony offense of possession of a controlled substance (MDMA) in an
amount between four and 200 grams with intent to deliver. See Tex. Health &
Safety Code Ann. § 481.103 (West Supp. 2017) (classifying MDMA as a penalty-
group-2 drug), § 481.113 (West 2017) (providing elements of offense of delivery
of substance in penalty group 2). In exchange for his guilty plea, the State
recommended that Appellant be placed on deferred adjudication community
supervision for a term of eight years. The trial court agreed and Appellant was
so sentenced. See Tex. Code Crim. Proc. Ann. arts. 42A.101–.102 (West Supp.
2017) (permitting placement on deferred adjudication community supervision).
For five years, Appellant appeared to comply with the terms of community
supervision—he completed a substance abuse rehabilitation program, passed all
required drug tests, completed community service hours as required, and was
gainfully employed as a landscaper. But in the fall of 2016, Appellant was again
engaged in dealing drugs.
Around midnight on August 28, 2016, State Trooper Randel Wilson pulled
over Appellant’s girlfriend, Cassandra Szymanski, in Hood County for driving with
a defective taillight. Szymanski’s vehicle was uninsured, did not bear a valid
registration sticker, and bore a license plate that was registered to Appellant’s
Dodge pickup. Trooper Wilson discovered yellow capsules on the floorboard of
the vehicle and in Szymanski’s purse. Szymanski claimed the pills were
2 hydrocodone and later testified that she had obtained them from Appellant.
Although a field test identified the substance as cocaine, later testing showed it to
be a synthetic substance called U-47700.2
During the investigation, Appellant arrived on the scene in his Dodge
pickup. After a drug dog positively alerted to the presence of narcotics in the
pickup, troopers searched his vehicle and found more yellow pills and a white
powder residue on the dashboard, floorboards, and seats. There was also an
odor of marijuana inside the vehicle, and troopers found bundles of cash in the
pickup and in Appellant’s pocket. The troopers arrested Appellant and
Szymanski.
A month later, on September 29, 2016, in Hood County, Appellant was
arrested a second time when Deputy Michael Jenkins carried out an arrest
warrant. At the time of Appellant’s arrest he was again in possession of bundles
of cash that Appellant admitted to Deputy Jenkins he received from drug dealing.
Appellant also admitted that there was a backpack full of drugs in his truck, and a
subsequent search revealed a backpack containing white and orange pills and a
large plastic bag of marijuana.
Following these arrests, the State moved to proceed with the adjudication
of Appellant’s guilt of the 2011 possession charge. The State alleged that
Appellant violated the terms of community supervision by (a) delivering a
2 At the adjudication hearing, a forensic scientist described U-47700 as an opiate “similar to morphine.”
3 simulated controlled substance purported to be hydrocodone to Szymanski,
(b) possessing marijuana, (c) failing to report to a Tarrant County community
supervision officer in September 2016, (d) failing to report by mail to a Hood
County community supervision officer in September 2016, (e) failing to report a
new arrest to his supervising officer within five days of the arrest, (f) failing to pay
a fee for urinalysis testing to his community supervision officer, and (g) failing to
pay a $60 supervision fee for September 2016. Appellant pleaded “not true” to
each of the allegations.
In addition to the above-recited evidence, at the adjudication hearing the
trial court received evidence recovered from Appellant’s cell phone, including a
photograph of marijuana joints and a text message in which Appellant flatly
admitted, “I’m a drug dealer.”
At the conclusion of the hearing, the trial court found that Appellant had
violated the terms and conditions of community supervision by (a) delivering a
simulated controlled substance purported to be hydrocodone to another person,
(b) possessing marijuana, (c) failing to report to the Tarrant County community
supervision office in September 2016, (d) failing to report by mail to the Hood
County community supervision office in September 2016, and (e) failing to report
a new arrest to his supervision officer within 5 days thereof. The trial court
therefore adjudicated Appellant guilty and sentenced him to 35 years’
confinement.
4 Discussion
Appellant does not appeal the trial court’s revocation of community
supervision and adjudication of his guilt; indeed, his attorney admitted at the
hearing that Appellant had violated the terms of community supervision by
possessing the bag of marijuana. Proof of a single violation, such as his
possession of marijuana, is sufficient to support the revocation of community
supervision. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012); Leach
v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref’d).
Rather, in his sole issue on appeal Appellant complains that the trial court
abused its discretion by assessing a 35-year sentence based in part on violations
that, in his view, were not proven at the adjudication hearing. In particular,
Appellant argues that the State did not prove that he failed to report to the
community supervision offices of Tarrant and Hood Counties in September 2016,
or that he delivered a simulated controlled substance in August 2016.
As a basic premise of his argument, Appellant asserts that the trial court
indicated that it considered those particular violations in determining the
appropriate sentence after finding the State’s allegations to be true. We
disagree. After reciting that it found the allegations to be true, the trial court
simply added, “I do accordingly adjudicate you guilty of the offense of possession
of a controlled substance with intent to deliver as alleged in the original
indictment, and I do assess your punishment at 35 years.” We do not view this
5 as an express statement by the trial court that it considered the community-
supervision violations in assessing an appropriate sentence.
Appellant also appears to argue that the 35-year sentence is excessive or
disproportionate. This argument fails for two reasons. First, Appellant forfeited
appellate review of any sentencing complaint by failing to object to the sentence
when it was imposed or raise this argument to the trial court in his motion for new
trial. Means v. State,
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-17-00041-CR
IAN FANCHON GILLESPIE APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY TRIAL COURT NO. CR11992
MEMORANDUM OPINION1
In a single issue, Appellant Ian Fanchon Gillespie appeals the trial court’s
sentence of 35 years’ confinement after its adjudication of his guilt for possession
of a controlled substance. We affirm.
1 See Tex. R. App. P. 47.4. Background
In 2011, Appellant pleaded guilty pursuant to a plea bargain to the first-
degree felony offense of possession of a controlled substance (MDMA) in an
amount between four and 200 grams with intent to deliver. See Tex. Health &
Safety Code Ann. § 481.103 (West Supp. 2017) (classifying MDMA as a penalty-
group-2 drug), § 481.113 (West 2017) (providing elements of offense of delivery
of substance in penalty group 2). In exchange for his guilty plea, the State
recommended that Appellant be placed on deferred adjudication community
supervision for a term of eight years. The trial court agreed and Appellant was
so sentenced. See Tex. Code Crim. Proc. Ann. arts. 42A.101–.102 (West Supp.
2017) (permitting placement on deferred adjudication community supervision).
For five years, Appellant appeared to comply with the terms of community
supervision—he completed a substance abuse rehabilitation program, passed all
required drug tests, completed community service hours as required, and was
gainfully employed as a landscaper. But in the fall of 2016, Appellant was again
engaged in dealing drugs.
Around midnight on August 28, 2016, State Trooper Randel Wilson pulled
over Appellant’s girlfriend, Cassandra Szymanski, in Hood County for driving with
a defective taillight. Szymanski’s vehicle was uninsured, did not bear a valid
registration sticker, and bore a license plate that was registered to Appellant’s
Dodge pickup. Trooper Wilson discovered yellow capsules on the floorboard of
the vehicle and in Szymanski’s purse. Szymanski claimed the pills were
2 hydrocodone and later testified that she had obtained them from Appellant.
Although a field test identified the substance as cocaine, later testing showed it to
be a synthetic substance called U-47700.2
During the investigation, Appellant arrived on the scene in his Dodge
pickup. After a drug dog positively alerted to the presence of narcotics in the
pickup, troopers searched his vehicle and found more yellow pills and a white
powder residue on the dashboard, floorboards, and seats. There was also an
odor of marijuana inside the vehicle, and troopers found bundles of cash in the
pickup and in Appellant’s pocket. The troopers arrested Appellant and
Szymanski.
A month later, on September 29, 2016, in Hood County, Appellant was
arrested a second time when Deputy Michael Jenkins carried out an arrest
warrant. At the time of Appellant’s arrest he was again in possession of bundles
of cash that Appellant admitted to Deputy Jenkins he received from drug dealing.
Appellant also admitted that there was a backpack full of drugs in his truck, and a
subsequent search revealed a backpack containing white and orange pills and a
large plastic bag of marijuana.
Following these arrests, the State moved to proceed with the adjudication
of Appellant’s guilt of the 2011 possession charge. The State alleged that
Appellant violated the terms of community supervision by (a) delivering a
2 At the adjudication hearing, a forensic scientist described U-47700 as an opiate “similar to morphine.”
3 simulated controlled substance purported to be hydrocodone to Szymanski,
(b) possessing marijuana, (c) failing to report to a Tarrant County community
supervision officer in September 2016, (d) failing to report by mail to a Hood
County community supervision officer in September 2016, (e) failing to report a
new arrest to his supervising officer within five days of the arrest, (f) failing to pay
a fee for urinalysis testing to his community supervision officer, and (g) failing to
pay a $60 supervision fee for September 2016. Appellant pleaded “not true” to
each of the allegations.
In addition to the above-recited evidence, at the adjudication hearing the
trial court received evidence recovered from Appellant’s cell phone, including a
photograph of marijuana joints and a text message in which Appellant flatly
admitted, “I’m a drug dealer.”
At the conclusion of the hearing, the trial court found that Appellant had
violated the terms and conditions of community supervision by (a) delivering a
simulated controlled substance purported to be hydrocodone to another person,
(b) possessing marijuana, (c) failing to report to the Tarrant County community
supervision office in September 2016, (d) failing to report by mail to the Hood
County community supervision office in September 2016, and (e) failing to report
a new arrest to his supervision officer within 5 days thereof. The trial court
therefore adjudicated Appellant guilty and sentenced him to 35 years’
confinement.
4 Discussion
Appellant does not appeal the trial court’s revocation of community
supervision and adjudication of his guilt; indeed, his attorney admitted at the
hearing that Appellant had violated the terms of community supervision by
possessing the bag of marijuana. Proof of a single violation, such as his
possession of marijuana, is sufficient to support the revocation of community
supervision. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012); Leach
v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref’d).
Rather, in his sole issue on appeal Appellant complains that the trial court
abused its discretion by assessing a 35-year sentence based in part on violations
that, in his view, were not proven at the adjudication hearing. In particular,
Appellant argues that the State did not prove that he failed to report to the
community supervision offices of Tarrant and Hood Counties in September 2016,
or that he delivered a simulated controlled substance in August 2016.
As a basic premise of his argument, Appellant asserts that the trial court
indicated that it considered those particular violations in determining the
appropriate sentence after finding the State’s allegations to be true. We
disagree. After reciting that it found the allegations to be true, the trial court
simply added, “I do accordingly adjudicate you guilty of the offense of possession
of a controlled substance with intent to deliver as alleged in the original
indictment, and I do assess your punishment at 35 years.” We do not view this
5 as an express statement by the trial court that it considered the community-
supervision violations in assessing an appropriate sentence.
Appellant also appears to argue that the 35-year sentence is excessive or
disproportionate. This argument fails for two reasons. First, Appellant forfeited
appellate review of any sentencing complaint by failing to object to the sentence
when it was imposed or raise this argument to the trial court in his motion for new
trial. Means v. State, 347 S.W.3d 873, 874 (Tex. App.—Fort Worth 2011, no
pet.); see also Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009,
pet. ref’d) (holding failure to object to sentence at time of imposition or complain
of sentence in motion for new trial does not preserve complaint for appellate
review). Second, even had he preserved this argument, Appellant’s sentence is
well within the relevant statutory range for possession of MDMA in an amount
between four and 200 grams with the intent to deliver. See Tex. Health & Safety
Code Ann. § 481.113 (designating possession of four to 400 grams of a penalty-
group-2 drug with the intent to deliver as a first-degree felony offense); Tex.
Penal Code Ann. § 12.32 (West 2011) (setting punishment range for first-degree
felonies as five to 99 years’ imprisonment). If the punishment imposed is within
the statutory range, it is generally not subject to a challenge for excessiveness.
Means, 347 S.W.3d at 875. Appellant’s argument and our own review of the
record provide us no reason to believe that the trial court’s sentence was
excessive or disproportionate.
For these reasons, we overrule Appellant’s sole issue.
6 Conclusion
Having overruled Appellant’s sole issue, we affirm the trial court’s
judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH CHIEF JUSTICE
PANEL: SUDDERTH, C.J.; WALKER and BIRDWELL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: February 1, 2018