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
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MEMORANDUM OPINION 1
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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.
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… 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.
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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
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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
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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
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