Victor Borchick v. State

• Court: Court of Appeals of Texas
• Decided: July 29, 2009
• Docket: 10-08-00409-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-08-00409-CR

VICTOR BORCHICK, Appellant v.

THE STATE OF TEXAS, Appellee

From the 40th District Court Ellis County, Texas Trial Court No. 32957CR

MEMORANDUM OPINION

Victor Borchick contends in his sole point that the court abused its discretion by

revoking his community supervision and imposing the maximum sentence. We will

affirm.

Borchick pleaded guilty to burglary of a habitation in June 2008. Pursuant to a

plea agreement, the court assessed his punishment at ten years’ imprisonment and a

$1,500 fine, suspended imposition of sentence, and placed him on community

supervision for five years. The State filed a motion to revoke his community supervision two months later. As amended, the revocation motion alleged nine

violations. Borchick pleaded “true” to four of the alleged violations. Based on the

evidence presented, the court found three additional allegations true. The court

revoked Borchick’s community supervision and imposed the original sentence.

Borchick presents two complaints in his point of error. First, he contends that the

court abused its discretion in revoking his community supervision because “a cause for

revocation of community supervision was not established by the evidence.” We

construe this as a contention that the evidence is insufficient to support the decision to

revoke his community supervision.

At most, however, Borchick challenges the court’s findings with regard to only

five of the seven violations found by the court.1 “To obtain reversal for insufficiency of

the evidence in a probation revocation case, a defendant must successfully challenge

each ground on which the trial court relies, because one sufficient ground supports the

trial court’s order.” Anderson v. State, No. 10-07-00294-CR, 2008 WL 3506875, at *1 (Tex.

App.—Waco Aug. 13, 2008, no pet.) (quoting Sterling v. State, 791 S.W.2d 274, 277 (Tex.

App.—Corpus Christi 1990, pet. ref’d) (citing Moore v. State, 605 S.W.2d 924, 926 (Tex.

Crim. App. [Panel Op.] 1980))). Because Borchick does not challenge the sufficiency of

the evidence with respect to two of the seven violations found by the court, we overrule

his complaint regarding the sufficiency of the evidence. See Moore, 605 S.W.2d at 926;

Anderson, 2008 WL 3506875, at *1.

1 Specifically, Borchick pleaded “true” to allegations 7 (leaving the county without permission), 9 (failure to pay supervision fee), 10 (failure to pay costs and other fees), and 18 (failure to abide by curfew). He does not challenge the court’s findings that he committed the first and last of these violations.

Borchick v. State Page 2 Next, Borchick contends “that the imposition of the maximum sentence,

although allowed by law, was too severe under the circumstances.” Article 42.12,

section 23(a) of the Code of Criminal Procedure provides in pertinent part, “If

community supervision is revoked after a hearing under Section 21 of this article, the

judge may proceed to dispose of the case as if there had been no community

supervision.” TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23(a) (Vernon Supp. 2008). “In

other words, the judge may impose the sentence originally assessed.” Guzman v. State,

923 S.W.2d 792, 799 (Tex. App.—Corpus Christi 1996, no pet.); accord Anderson, 2008 WL

3506875, at *1 (“That statute invests a trial court with discretion upon revocation to

impose the original sentence”). A court does not abuse its discretion by imposing the

sentence originally assessed. Mendoza v. State, No. 04-06-00135-CR, 2006 WL 2546485, at

*1 (Tex. App.—San Antonio Sept. 6, 2006, no pet.) (not designated for publication); May

v. State, No. 07-03-00420-CR, 2005 WL 1743359, at *1 (Tex. App.—Amarillo July 25, 2005,

no pet.) (not designated for publication). Thus, we overrule Borchick’s complaint that

the court abused its discretion by imposing the sentence originally assessed.

The judgment is affirmed.

FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed July 29, 2009 Do not publish [CR25]

Borchick v. State Page 3