Ricardo Martell Espinoza v. State

• Court: Court of Appeals of Texas
• Decided: July 2, 2009
• Docket: 02-08-00402-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-08-402-CR

RICARDO MARTELL ESPINOZA APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION 1

Ricardo Martell Espinoza appeals from his adjudication for aggravated

assault with a deadly weapon. In one point, he argues that the trial court

abused its discretion by proceeding to adjudication. We affirm.

Background

Appellant pleaded guilty to aggravated assault with a deadly weapon.

Pursuant to a plea bargain, the trial court placed him on deferred adjudication

community supervision for eight years beginning September 8, 2006.

1 … See Tex. R. App. P. 47.4. On May 16, 2008, the State filed a petition to proceed to adjudication,

alleging Appellant had violated the terms of his community supervision by

failing to report to his supervision officer from April 2007 through March 2008;

leaving Tarrant County without the permission of his supervision officer; failing

to pay costs, fees, and fines as ordered; and failing to attend anger-control

classes. The State later waived the costs, fines, and fees allegation, and

Appellant pleaded “true” to the other alleged violations.

At the adjudication hearing, Appellant testified that he cut off his ankle

monitor and fled to El Paso to visit his dying father in March 2007. Although

he returned to his home in Dallas a few days after his father’s funeral on May

2, 2007, he never again reported to his supervision officer, and Dallas police

eventually arrested him in May 2008. Appellant said he did not complete the

anger-control class because he could not afford to do so.

The trial court proceeded to adjudication, found Appellant guilty of

aggravated assault with a deadly weapon, and sentenced him to prison for a

term of ten years and one day.

Discussion

We review a trial court’s decision to proceed to adjudication under the

same standard we apply when reviewing a revocation of community

supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp.

2 2008) (“This determination is reviewable in the same manner as a revocation

hearing conducted under Section 21 of this article in a case in which an

adjudication of guilt had not been deferred.”). We review an order revoking

community supervision under an abuse of discretion standard. Cardona v.

State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Jackson v. State, 645

S.W.2d 303, 305 (Tex. Crim. App. 1983); Cherry v. State, 215 S.W.3d 917,

919 (Tex. App.—Fort Worth 2007, pet. ref’d). In a revocation proceeding, the

State must prove by a preponderance of the evidence that the defendant

violated the terms and conditions of community supervision. Cobb v. State,

851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Cherry, 215 S.W.3d at 919.

A single violation of the terms of community supervision will support a

revocation order. O'Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App.

1981). A plea of true to any alleged violation is sufficient to satisfy the State’s

burden as to that allegation. See Watts v. State, 645 S.W.2d 461, 463 (Tex.

Crim. App. 1983); Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App.

1979).

Here, a plea of “true” to any one of the three alleged violations would

have supported the exercise of the trial court’s discretion to proceed to

adjudication; Appellant pleaded “true” to all three. Appellant argues that “just

because a violation of community supervision . . . is shown does not mean that

3 the [c]ourt has no choice but to revoke supervision and impose a sentence of

incarceration.” This argument is valid; but while the trial court was not required

to adjudicate Appellant, it certainly had the discretion to do so. Appellant also

argues that the trial court abused its discretion by proceeding to adjudication

because “other than the [p]rosecutor, no one wanted the Appellant

incarcerated[,] including the complainant in these cases.” But again, once

Appellant pleaded “true” to one of the alleged violations, the trial court had the

discretion to revoke his community supervision, proceed to adjudication, and

sentence Appellant to a term of confinement. The desires of Appellant and the

complainant do not take the case beyond the bounds of discretion.

Appellant also complains, in passing, that the trial court abused its

discretion by sentencing him to confinement for ten years and a day. But

Appellant failed to preserve this issue for review. He did not object when the

trial court pronounced his sentence. See Tex. R. App. P. 33.1(a)(1); Mercado

v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (“As a general rule, an

appellant may not assert error pertaining to his sentence or punishment where

he failed to object or otherwise raise such error in the trial court.”). Although

Appellant filed a timely motion for new trial challenging the sentence as

excessive and disproportional, nothing in the record suggests that he

“presented” the motion to the trial court. See Tex. R. App. P. 21.6; Carranza

4 v. State, 960 S.W.2d 76, 78–79 (Tex. Crim. App. 1998); Reyes v. State, 849

S.W.2d 812, 815 (Tex. Crim. App. 1993); Amaro v. State, 970 S.W.2d 172,

174 (Tex. App.—Fort Worth 1998, no pet.). Even if Appellant had preserved

this issue for review, his sentence is within the range of punishment authorized

by the legislature, and Appellant does not explain how the trial court abused its

discretion by imposing the ten-year, one-day sentence. See Tex. Penal Code

Ann. § 12.33(a) (Vernon Supp. 2008) (providing range of punishment of two

to twenty years’ confinement for second-degree felony); Darden v. State, 430

S.W.2d 494, 496 (Tex. Crim. App. 1968) (“If the punishment is within that

prescribed by the statute, it is beyond the province of this Court to pass upon

the question of excessive punishment.”).

Finding no abuse of discretion, we overrule Appellant’s sole point and

affirm the trial court’s judgment.

PER CURIAM

PANEL: GARDNER, J.; CAYCE, C.J.; and LIVINGSTON, J.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: July 2, 2009