Jaime Clark A/K/A Jamie Clark v. State

• Court: Court of Appeals of Texas
• Decided: June 27, 2013
• Docket: 13-12-00552-CR
• Status: Published

Opinion

NUMBER 13-12-00552-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG

JAIME CLARK A/K/A Appellant, JAMIE CLARK, v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Perkes Memorandum Opinion by Justice Garza

Appellant, Jaime Clark a/k/a Jamie Clark,1 appeals from the trial court’s

revocation of his deferred adjudication community supervision. See TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 5 (West Supp. 2011). By two issues, appellant contends that:

1 Documents throughout the record refer variously to “Jaime Clark” and “Jamie Clark.” (1) there was insufficient evidence to support one of the State’s allegations in its motion

to revoke; and (2) his sentence was unconstitutionally disproportionate. We affirm.

I. BACKGROUND

In 2005, pursuant to a plea bargain, Clark pleaded guilty to five counts of sexual

assault of a minor, each a second-degree felony. See TEX. PENAL CODE ANN. § 22.011

(a)–(c), (f) (West 2011). Clark was placed on deferred adjudication community

supervision for ten years. On June 1, 2012, the State filed an amended motion to

revoke deferred adjudication community supervision, alleging numerous violations,

including that Clark committed another sexual assault of a minor.

On June 28, 2012, the court held a hearing on the motion to revoke and Clark

pleaded “not true” to the allegations that he committed sexual assault and failed to

report a change of address, but pleaded “true” to the remaining allegations.

Following the revocation hearing, the trial court found all of the allegations in the

motion to revoke to be true and adjudicated appellant guilty of all five counts of sexual

assault of a minor as set forth in the original indictment.2 Id. The court revoked Clark’s

deferred adjudication community supervision, adjudicated him guilty, and sentenced him

to serve twenty years for each count, with the sentences for the first two counts to run

consecutively and the remaining three counts to run concurrently.

II. STANDARD OF REVIEW AND APPLICABLE LAW

We review a trial court’s order revoking community supervision by determining

whether the trial court abused its discretion in determining whether the appellant

violated the terms of his community supervision. 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)

2 We note that appellant’s sexual assault convictions involve offenses that occurred in 2004 and a different victim than the victim involved in the allegations in the State’s motion to revoke.

2 (en banc); see TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b). In a community

supervision revocation hearing, the State need only prove its allegations by a

preponderance of the evidence. Jones v. State, 112 S.W.3d 266, 268 (Tex. App.—

Corpus Christi 2003, no pet.); Herrera v. State, 951 S.W.2d 197, 199 (Tex. App.—

Corpus Christi 1997, no pet.) (citing Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.

App. 1993)). This standard is met when the greater weight of the credible evidence

creates a reasonable belief that the defendant violated a condition of probation as the

State alleged. In re B.C.C., 187 S.W.3d 721, 724 (Tex. App.—Tyler 2006, no pet.)

(citing Cobb, 851 S.W.2d at 873).

Further, proof of a single violation of a probation condition is sufficient to support

the trial court's decision to revoke probation. See Gipson v. State, 383 S.W.3d 152, 155

(Tex. Crim. App. 2012); 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. [Panel Op.] 1979). We examine

the record of the revocation proceeding in the light most favorable to the trial court's

ruling. See Jackson v. State, 645 S.W.2d 303, 304 (Tex. Crim. App. 1983).

III. EVIDENCE TO SUPPORT REVOCATION

By his first issue, Clark challenges the sufficiency of the evidence to support the

trial court’s finding that he committed sexual assault. Specifically, Clark argues that

because the alleged child victim recanted her testimony, there was insufficient evidence

to support the State’s allegation and the State’s reliance on the recanted testimony

violated his due process rights.

Clark does not, however, challenge the remaining allegations—that he

possessed and used dangerous drugs, failed to pay for urinalysis testing, failed to report

to his probation officer, and failed to pay his court costs, fine, monthly sex offender fees

3 and monthly supervision fees, among others. Clark's pleas of “true” to these

unchallenged alleged violations alone are sufficient to support the trial court's revocation

of his community supervision. See Herrera, 951 S.W.2d at 199. Regardless of the

relative severity of the violations to which appellant pleaded “not true” compared to

those to which he pleaded “true,” the appellant is required to successfully challenge all

of the trial court’s findings that support the revocation order. Id. We therefore conclude

that the trial court did not abuse its discretion in granting the State's motion to revoke

Clark’s community supervision. Accordingly, we overrule Clark’s first issue.

IV. DISPROPORTIONATE PUNISHMENT

By his second issue, Clark asserts that “the punishment assessed by the judge

during the sentencing phase of the trial was disproportionate to the seriousness of the

alleged offense, all in violation of the eighth and fourteenth amendments of the U.S.

Constitution.” The Eighth Amendment of the United States Constitution provides that

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishment inflicted.” U.S. CONST. amend. VIII. The Eighth Amendment is

applicable to punishments imposed by state courts through the due process clause of

the fourteenth amendment. See U.S. CONST. amend. XIV. The State responds that

appellant failed to preserve any issue for review because he did not object to his

sentence in the trial court. We agree.

Appellant made no objection to his sentence either at the time of sentencing or in

any post-trial motion. To preserve error for our review, Clark was required to show that

he made a timely objection to the trial court, stated the specific grounds for the

objection, and obtained a ruling. TEX. R. APP. P. 33.1(a); see Jacoby v. State, 227

S.W.3d 128, 130 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). By failing to

4 specifically object during trial or in a post-trial motion, appellant has waived any error for

our review. See TEX. R. APP. P. 33.1(a); see Jacoby, 227 S.W.3d at 130; see also

Trevino v. State, 174 S.W.3d 925, 927–28 (Tex. App.—Corpus Christi 2005, pet. ref’d)

(“Because the sentence imposed is within the punishment range and is not illegal, we

conclude that the rights [appellant] asserts for the first time on appeal are not so

fundamental as to have relieved him of the necessity of a timely, specific trial

objection.”).

V. CONCLUSION

Having overruled both of Clark's issues on appeal, we affirm the trial court's order

revoking his community supervision.

DORI CONTRERAS GARZA, Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 27th day of June, 2013.