In The
Court of Appeals
Ninth District of Texas at Beaumont
___________________
NO. 09-14-00195-CR
___________________
JOE FREDRICK HAWKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 13-16946
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MEMORANDUM OPINION
Appellant Joe Fredrick Hawkins appeals from the revocation of his deferred
adjudication community supervision and imposition of sentence for assault
involving family violence. In three points of error, Hawkins argues that his
sentence is constitutionally disproportionate and unreasonable in violation of the
United States Constitution and the Texas Constitution and that the evidence is
legally insufficient to support the trial court’s finding that he committed a violation
of his community supervision. We affirm the judgment of the trial court.
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I. Background
Pursuant to a plea bargain agreement, Hawkins pled guilty to assault of a
family member by impeding breathing or circulation, a third-degree felony. The
trial court found the evidence sufficient to find Hawkins guilty, but deferred further
proceedings without entering an adjudication of guilt, placed Hawkins on
community supervision for three years, and ordered Hawkins to pay a fine of $500.
Thereafter, the State filed a motion to revoke Hawkins’ unadjudicated
community supervision, asserting that Hawkins violated four conditions of his
community supervision. On April 14, 2014, the trial court held a hearing on the
State’s motion to revoke. During the hearing, the State abandoned count one of the
motion. Hawkins pled “true” to count two of the motion, but pled “not true” to
counts three and four. 1 Following the entry of Hawkins’ pleas, the trial court reset
the remainder of the hearing for two weeks to allow the State to present evidence
as to counts three and four.
1
During the April 14, 2014 revocation hearing, the trial court mistakenly
referred to count two of the motion to revoke as “Count 1” and referred to count
three of the motion as “Count 2[.]” However, the record reflects that the trial court
read the actual substance of counts two and three aloud immediately before
Hawkins entered his plea to each count, thus making it clear which count the trial
court was actually referring to as Hawkins entered each plea. Hawkins does not
argue that he was confused or otherwise harmed by the trial court’s inaccurate
reference to counts two and three during the April 14, 2014 revocation hearing.
Therefore, we do not address this issue on appeal. See Tex. R. App. P. 38.1(i).
2
On April 28, 2014, the trial court resumed the hearing on the State’s motion
to revoke. After hearing evidence, the trial court found count three to be true.2
Based on this finding, as well as Hawkins’ plea of true to count two, the trial court
found the evidence sufficient to establish that Hawkins violated the conditions of
his community supervision. The trial court revoked Hawkins’ community
supervision, adjudicated him guilty of assault of a family member by impeding
breathing or circulation, and sentenced him to four years in prison. Hawkins timely
filed a notice of appeal.
II. Sentence
In Hawkins’ first and second points of error, he argues that the four-year
sentence assessed by the trial court is unconstitutionally disproportionate and
unreasonable in violation of the Eighth Amendment of the United States
Constitution and Article I, section 13 of the Texas Constitution. See U.S. CONST.
amend. VIII; Tex. Const. art. I, § 13.3 The State argues that Hawkins waived these
points of error by failing to timely object.
2
The State abandoned count four at the beginning of the April 28, 2014
hearing.
3
Hawkins also argues that the trial court violated his due process and equal
protection rights under the United States and Texas Constitutions. Hawkins cites
no relevant authority to support these arguments. See Tex. R. App. P. 38.1(i).
3
To preserve error for appellate review, the complaining party must present a
timely and specific objection to the trial court and obtain a ruling. Tex. R. App. P.
33.1(a). Generally, the failure to specifically object to an alleged disproportionate
or cruel and unusual sentence in the trial court or in a post-trial motion waives any
error for purposes of appellate review. See Rhoades v. State, 934 S.W.2d 113, 120
(Tex. Crim. App. 1996); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d). The record reflects that Hawkins did not raise
any objections to his sentence at the time it was pronounced or in a post-trial
motion. Therefore, we conclude that Hawkins waived any complaint that his
sentence was unconstitutionally disproportionate or unreasonable for purposes of
appellate review. See Tex. R. App. P. 33.1(a).
However, even if Hawkins had properly preserved his complaints for our
review, his argument that his sentence is disproportionate and unreasonable under
the Eighth Amendment of the United States Constitution and Article I, section 13
of the Texas Constitution is without merit.4 Texas courts have traditionally held
that as long as the punishment assessed falls within the punishment range
4
Hawkins does not argue that Article I, section 13 of the Texas Constitution
provides any greater or different protection than the Eighth Amendment of the
United States Constitution. Therefore, we examine Hawkins’ argument solely
under the Eighth Amendment. See Rivera v. State, 363 S.W.3d 660, 678 n. 12
(Tex. App.—Houston [1st Dist.] 2011, no pet.).
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prescribed by the Legislature, the punishment is not excessive or unconstitutionally
cruel or unusual under either Texas law or the United States Constitution. See
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Diamond v. State,
419 S.W.3d 435, 440 (Tex. App.—Beaumont 2012, no pet.); Kirk v. State, 949
S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d). Hawkins’ four-year
sentence is within the statutory range authorized for the crime of assault of a
family member by impeding breathing or circulation. See Tex. Penal Code Ann. §
12.34 (West 2011) (providing that the punishment range for a third-degree felony
is imprisonment for a term of not less than two years or more than ten years and a
fine of up to $10,000); § 22.01(b)(2)(B) (West Supp. 2014) (providing that the
offense of assault of a family member by impeding breathing or circulation is a
third-degree felony).
However, even when a sentence falls within the statutory range of
punishment, it may nevertheless be excessive in violation of the Eighth
Amendment if it is grossly disproportionate to the offense for which the defendant
has been convicted. See Reynolds v. State, 430 S.W.3d 467, 471 (Tex. App.—San
Antonio 2014, no pet.); Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—
Texarkana 1999, no pet.). To make this determination, “[w]e initially make a
threshold comparison of the gravity of the offense against the severity of the
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sentence and then ask whether the sentence is grossly disproportionate to the
offense.” Jackson, 989 S.W.2d at 846. We judge the gravity of the offense in light
of the harm caused or threatened to the victim or society and the culpability of the
offender. Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet.
ref’d). If gross disproportionality is found, we then compare the sentence to
sentences received for similar crimes in this and other jurisdictions. Jackson, 989
S.W.2d at 846.
The record reflects that Hawkins pled guilty to felony assault of a family
member by impeding breathing or circulation. Hawkins does not argue or point to
any evidence in the record explaining how the four-year sentence assessed by the
trial court—which is on the lower end of the applicable punishment range—is
grossly disproportionate to the violent assault offense to which he admitted
culpability and for which he was ultimately convicted. While Hawkins argues that
the trial court failed to consider certain factors, outlined in article 37.07, section 3
of the Texas Code of Criminal Procedure, that could have mitigated against his
sentence, the record does not support his argument. See Tex. Code Crim. Proc.
Ann. art. 37.07, § 3 (West Supp. 2014). The trial court did not exclude any
evidence of mitigating circumstances during the revocation hearings, and there is
nothing in the record to indicate that the trial court otherwise failed or refused to
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consider any evidence or information in violation of article 37.07, section 3.
Further, Hawkins failed to introduce any evidence of sentences imposed for similar
offenses in this or other jurisdictions for which we can make a reliable
comparison. 5 See Jackson, 989 S.W.2d at 846. We conclude, therefore, that
Hawkins has failed to make a showing that his sentence was grossly
disproportionate to the offense committed. See East v. State, 71 S.W.3d 774, 777
(Tex. App.—Texarkana 2002, no pet.).
Hawkins also complains that the trial court considered “unverifiable facts”
and “matters not presented in evidence,” including his criminal record, when it
assessed his sentence. Hawkins, however, did not object during the revocation
hearing or in a post-trial motion to the trial court’s alleged consideration of
unverifiable facts or matters not in evidence when it assessed his sentence, nor did
he object at any time to the sentence itself. Hawkins has therefore waived this
complaint for purposes of appellate review. See Tex. R. App. P. 33.1(a); see also
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.”).
5
Hawkins asks this Court to abate the appeal for a hearing to allow him to
gather information regarding sentences imposed for similar offenses by criminal
defendants in Texas and other jurisdictions. Hawkins cites no applicable authority
to support this proposition. See Tex. R. App. P. 38.1(i).
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We hold that Hawkins failed to preserve the complaints that he makes about
his sentence for our review on appeal. We overrule Hawkins’ first and second
points of error.
III. Sufficiency of the Evidence to Support Adjudication of Guilt
In his third point of error, Hawkins argues that the evidence is legally
insufficient to support the trial court’s finding that Hawkins violated a condition of
his community supervision by failing to provide verification that he attended an
anger management program as ordered by the court (count three of the State’s
motion to revoke).
An appellate court’s review of an order adjudicating guilt is generally
limited to a determination of whether the trial court abused its discretion. See Tex.
Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2014) (“The determination to
proceed with an adjudication of guilt on the original charge is reviewable in the
same manner as a revocation hearing conducted under Section 21 in a case in
which an adjudication of guilt had not been deferred.”); Rickels v. State, 202
S.W.3d 759, 763 (Tex. Crim. App. 2006) (“‘Appellate review of an order revoking
probation is limited to abuse of the trial court’s discretion.’”) (quoting Cardona v.
State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)). In a hearing to revoke
deferred adjudication community supervision, the State has the burden to show by
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a preponderance of the evidence that the defendant committed a violation of the
conditions of his community supervision. See Rickels, 202 S.W.3d at 763; Cobb v.
State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The evidence meets this
standard when the greater weight of the credible evidence creates a reasonable
belief that the defendant has violated a condition of his community supervision.
Rickels, 202 S.W.3d at 763-64 (quoting Scamardo v. State, 517 S.W.2d 293, 298
(Tex. Crim. App. 1974)); Duncan v. State, 321 S.W.3d 53, 57 (Tex. App.—
Houston [1st Dist.] 2010, pet. ref’d).
We must examine the evidence in the light most favorable to the trial court’s
order. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). In
determining whether the allegations in the motion to revoke are true, the trial court
is the sole trier of facts, the judge of the credibility of the witnesses, and the arbiter
of the weight to be given to the testimony. Taylor v. State, 604 S.W.2d 175, 179
(Tex. Crim. App. 1980); Trevino v. State, 218 S.W.3d 234, 240 (Tex. App.—
Houston [14th Dist.] 2007, no pet.). To support the trial court’s order revoking
community supervision, the State need only establish one sufficient ground for
revocation. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).
At the April 14, 2014 revocation hearing, Hawkins pled “true” to the State’s
allegation, asserted in count two of the State’s motion to revoke, that he had
9
violated a condition of his community supervision by failing to report to the
Jefferson County Community Supervision and Corrections Department during the
month of February 2014. A plea of true to any alleged violation of the terms of a
defendant’s community supervision, standing alone, is sufficient to support
revocation of community supervision. See Cole v. State, 578 S.W.2d 127, 128
(Tex. Crim. App. 1979); Jones v. State, 112 S.W.3d 266, 268 (Tex. App.—Corpus
Christi 2003, no pet.). Therefore, Hawkins’ plea of true to the State’s allegation
that he failed to report to the Jefferson County Community Supervision and
Corrections Department during the month of February 2014, by itself, is sufficient
to support the trial court’s order revoking community supervision and adjudicating
him guilty of the underlying assault offense. See Cole, 578 S.W.2d at 128; Jones,
112 S.W.3d at 268.
However, even if Hawkins had not entered a plea of true to the allegations in
count two, we find the evidence sufficient to support the trial court’s finding that
the allegations in count three of the motion to revoke were true. Hawkins’ deferred
adjudication order required Hawkins to “[a]ttend rehabilitation, treatment,
residential programs, and counseling as directed by [his] Community Supervision
Officer, pay for said treatments as directed, and provide verification of such.” In its
motion to revoke, the State alleged in count three that Hawkins violated his
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deferred adjudication order by failing to provide verification that he attended anger
management classes. During the April 28, 2014 adjudication hearing, the State
called Gatta Harmon, Hawkins’ community supervision officer, to testify. Harmon
testified that after Hawkins was placed on community supervision, Harmon asked
the trial court to sign an order requiring Hawkins to attend anger management
classes. Harmon testified that in response to his request, the trial court signed an
order on January 19, 2014 requiring Hawkins to attend anger management classes.
Harmon testified that he could not recall if he showed the order to Hawkins after
the trial court signed it. However, Harmon explained that he showed the order to
Hawkins before he sent it to the trial court to sign and that Hawkins personally
signed the order himself. Harmon testified that Hawkins was also told “several
times that he needed to attend the [anger management classes] as soon as we send
the order to the Court for approval” and that “he was expected to attend the class.”
Harmon testified that despite these instructions, Hawkins failed to provide
verification that he attended the anger management classes as directed.
Hawkins’ deferred adjudication order required Hawkins to attend treatment
programs as directed by his community supervision officer and to provide
verification of his attendance. The trial court could have reasonably found that
Hawkins was directed to attend an anger management program, that Hawkins had
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notice that he was required to attend that program and to provide verification of his
attendance, and that Hawkins failed to provide the required verification. Viewing
the evidence in the light most favorable to the trial court’s order, we find that the
evidence was sufficient to establish, by a preponderance of the evidence, that
Hawkins failed to provide verification that he attended rehabilitation, treatment,
residential programs, and counseling as directed by his community supervision
officer, in violation of a condition of his deferred adjudication order. See Rickels,
202 S.W.3d at 763-64; Garrett, 619 S.W.2d at 174. Accordingly, we conclude that
there was legally sufficient evidence to support the trial court’s finding that the
allegation in count three of the State’s motion to revoke was true. In light of this
conclusion, as well as Hawkins’ plea of true to count two, we find that the trial
court did not abuse its discretion in revoking Hawkins’ community supervision and
adjudicating his guilt. See Rickels, 202 S.W.3d at 763. We overrule Hawkins’ third
point of error.
Having overruled each of Hawkins’ points of error, we affirm the judgment
of the trial court.
AFFIRMED .
_________________________
CHARLES KREGER
Justice
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Submitted on November 24, 2014
Opinion Delivered May 27, 2015
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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