NUMBER 13-13-00180-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SHARROD JOHNSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Benavides
By two issues, appellant Sharrod Johnson appeals the revocation of his
community supervision resulting from an adjudication of guilt for family violence assault
enhanced to a felony of the third degree due to an allegation of a prior conviction for the
same offense. TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2) (West, Westlaw through
2013 3d C.S.). We affirm.
I. BACKGROUND
Pursuant to a plea agreement, on September 2, 2010, Johnson pleaded guilty to
family violence assault. See id. The offense was enhanced to a third-degree felony
due to a prior conviction for the same offense. See id. § 22.01(b)(2). Pursuant to the
plea agreement, the trial court granted Johnson deferred adjudication and placed him on
community supervision for a term of five years.
On October 17, 2012, the State filed a motion to revoke probation, alleging that
Johnson had violated eighteen conditions of his community supervision. Johnson
pleaded “true” to eleven of the allegations and was sanctioned with placement in the
Intermediate Sanctions Facility (I.S.F.) on the substance abuse track program, but was
allowed to remain on community supervision. The alleged assault causing bodily injury
occurred on December 31, 2012 in the Nueces County Jail, while Johnson was awaiting
transfer to I.S.F. As a result of this incident, the State filed another motion to revoke
Johnson’s community supervision for violating the conditions of his community
supervision, namely, for committing an offense against the laws of Texas, i.e., assault
causing bodily injury. See id. § 22.01(a)(1).
Johnson pled “not true” to the allegation. The trial court held a hearing on this
motion on February 13, 2013. During the guilt phase, the State called one witness,
Officer Jennifer Nuñez, the officer on duty at the jail when the alleged assault occurred.
Officer Nuñez testified that she had an unobstructed view of Johnson playing cards
when, without any physical provocation, he punched another inmate, knocking him
unconscious. According to Officer Nuñez, Johnson struck the other inmate “two or
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three” more times before he was restrained by another officer. Officer Nuñez testified
that after Johnson punched the other inmate, he was “bleeding profusely” and had
lacerations and “bumps” on his head. After Officer Nuñez’s testimony, the State rested.
The defense then called Johnson to testify. Johnson testified that he was
provoked both verbally and physically before elbowing and kneeing the victim in
self-defense:
[Defense Counsel]. Well, did he call you—what triggered the—I
guess the—
[Johnson]. Well, I don't know—
Q. —thing between you and him?
A. Well, cause he hit me. There was a lot of name
calling. Am I allowed to say that?
Q. Did he call you—well, let me ask you, did he
call you a name before he hit you or after?
A. Yes, he called me a name several times before
he hit me.
Q. And what did you do in response to that?
A. To him hitting me?
Q. Yes.
A. I tackled him and then I elbowed him and then
I kneed him.
Q. So is it your testimony that he threw the first
punch?
A. Yes, ma'am. I was still sitting down when he
ran across—I ran across to my side of the
table, just throw punches at me. I was just
lucky enough I dodged the first one, threw my
cards down, got caught by the second one,
tackled him and then elbowed him and then
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kneed him.
Following Johnson’s testimony, the defense rested.
The trial court found Officer Nuñez’s testimony to be credible, adjudicated
Johnson guilty, revoked his community supervision, and sentenced him to six years in
prison with credit for any time served. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
By his first issue, Johnson contends that insufficient evidence exists to find that he
committed the alleged offense of assault causing bodily injury.
A. Standard of Review and Applicable Law
We review a trial court's order revoking community supervision for an abuse of
discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (en banc)
(citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)); Jones v. State,
112 S.W.3d 266, 268 (Tex. App.—Corpus Christi 2003, no pet.).
In determining questions regarding sufficiency of the evidence in probation
revocation cases, the State bears the burden of proof by a preponderance of the
evidence. Rickels, 202 S.W.3d at 763 (citing Cardona, 665 S.W.2d at 493); see Hacker
v. State, 389 S.W.3d 860, 864–65 (Tex. Crim. App. 2013); Jones, 112 S.W.3d at 268.
“[A]n order revoking probation must be supported by a preponderance of the evidence; in
other words, that greater weight of the credible evidence which would create a
reasonable belief that the defendant has violated a condition of his probation.” Rickels,
202 S.W.3d at 763–64 (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim.
App. 1974)). In a probation revocation proceeding, the trial court is the sole judge of the
credibility of the witnesses and determines whether the allegations in the motion to
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revoke are true or not. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel
Op.] 1981); see also Martinez v. State, 6 S.W.3d 674, 680 (Tex. App.—Corpus Christi
1999, no pet.).
B. Analysis
Johnson contends that the evidence presented during the hearing to revoke
community supervision was insufficient to find he committed the alleged assault causing
bodily injury. Without referencing authority, Johnson first argues that even though the
trial judge acknowledged the conflicting testimony, absent testimony from the other
inmate, the “confrontation should be seen as mutual combat, at best, with [Johnson]
defending his person from further attacks by the [other inmate].” We are not persuaded
by this argument.
The trial court was the sole judge in determining the credibility of Officer Nuñez
and Johnson’s testimony. See Garrett, 619 S.W.2d at 174. Upon hearing Officer
Nuñez’s testimony, the trial court acknowledged that the testimony was conflicting, but
found the allegation to be true because it believed Officer Nuñez to be a credible
witness. See id. In finding Officer Nuñez’s testimony to be credible, the trial court
found by a preponderance of the evidence that Johnson committed the assault causing
bodily injury, thereby violating the terms of community supervision.
Second, Johnson argues that “the injuries to the [other inmate] could very well
have resulted of his falling on the concrete floor of the jail . . . and not necessarily the
result of [Johnson] trying to defend his person from attack by the [other inmate].” Again,
we disagree. This claim is premised on Johnson’s “mutual combat” theory of the
incident, one which the trial court expressly rejected. See id. Viewing the evidence
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most favorable to the verdict, we conclude that the trial court did not abuse its discretion
in finding that Johnson violated the terms of his community supervision by committing
assault causing bodily injury. See Rickels, 202 S.W.3d at 763. Johnson’s first issue is
overruled.
III. PROPORTIONALITY OF THE PUNISHMENT
By his second issue, Johnson alleges that the punishment assessed by the trial
court was disproportionate to the seriousness of the alleged offense, in violation of the
Eighth and Fourteenth Amendments of the United States Constitution.
A. Standard of Review and Applicable Law
The Eighth Amendment of the United States Constitution provides “[e]xcessive
bail shall not be required, nor excessive fines, nor cruel and unusual punishment
inflicted.” U.S. CONST. amend. VIII. This right can be waived if a defendant fails to
object to a sentence on this basis. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim.
App. 1986). To preserve a complaint of disproportionate sentencing, the criminal
defendant must make a timely, specific objection to the trial court or raise the issue in a
motion for new trial. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);
Trevino v. State, 174 S.W.3d 925, 927–28 (Tex. App.—Corpus Christi 2005, pet. ref’d);
see also TEX. R. APP. P. 33.1(a).
B. Analysis
Here, the record shows that Johnson neither raised the arguments he now makes
on appeal when the trial court pronounced his sentence, nor raised the argument in a
motion for a new trial. Therefore, Johnson has not preserved this issue for our review.
See Rhoades, 934 S.W.2d at 120. We overrule Johnson’s second issue.
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IV. CONCLUSION
We affirm the trial court’s judgment.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
10th day of July, 2014.
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