COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00438-CR
Devin Marquette Lynch § From the 371st District Court
§ of Tarrant County (0785798D)
v. § February 28, 2013
§ Opinion by Justice Dauphinot
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Lee Ann Dauphinot
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00438-CR
DEVIN MARQUETTE LYNCH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Devin Marquette Lynch appeals from the trial court’s revocation
of his community supervision for felony driving while intoxicated (DWI).2 In his
sole issue, he contends that the trial court abused its discretion by imposing a
sentence, seven years’ confinement, that was grossly disproportionate to his
community supervision violations. Because Appellant pled true to two violations,
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 49.09(b)(2) (West Supp. 2012).
2
his sentence was within the legislatively created range of confinement, two to ten
years,3 for his offense, and there is no evidence that the sentence is grossly
disproportionate to the offense, we hold that the trial court did not abuse its
discretion by sentencing Appellant to seven years’ confinement. We affirm the
trial court’s judgment.
On November 28, 2001, Appellant pled guilty to the third-degree felony
offense of DWI. He was convicted and sentenced to ten years’ confinement and
ordered to pay a fine of $1,250. Imposition of the confinement portion of his
sentence was suspended, he was placed on community supervision for ten
years, and, as a condition of his community supervision, he was confined in the
Tarrant County Jail for a period of 120 days, which was to be served through
labor detail. Almost ten years later, on August 5, 2011, the State filed a petition
to revoke Appellant’s community supervision, alleging that he had operated a
motor vehicle without having a valid Texas driver’s license and that he had driven
a vehicle without an end ignition interlock device on or about July 19, 2011.
Appellant pled true to the allegations contained in the State’s petition, and after a
hearing on punishment, the trial court sentenced him to seven years’
confinement and gave him credit for the time he had served previously.
Appellant filed a motion for new trial raising the issue of disproportionality of the
sentence in relation to the violations (as opposed to the offense for which he was
3
See id. § 12.34(a) (West 2011).
3
sentenced),4 and the trial court denied Appellant’s motion for new trial in a written
order.
We review an order revoking community supervision under an abuse of
discretion standard.5 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.6 The trial court is the sole judge of the
credibility of the witnesses and the weight to be given their testimony, and we
review the evidence in the light most favorable to the trial court’s ruling. 7 If the
State fails to meet its burden of proof, the trial court abuses its discretion in
revoking the community supervision.8
Proof by a preponderance of the evidence of any one of the alleged
violations of the conditions of community supervision is sufficient to support a
4
See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.) (explaining that a
grossly disproportionate sentence relative to the convicted offense violates the
Eighth Amendment), cert. denied, 506 U.S. 849 (1992).
5
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v.
State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).
6
Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).
7
Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex.
Crim. App. [Panel Op.] 1981).
8
Cardona, 665 S.W.2d at 493–94.
4
revocation order.9 A plea of true, standing alone, is sufficient to support the
revocation of community supervision.10
In his motion for new trial, Appellant concedes that the trial court acted
within its discretion in sentencing him and further appears to concede that any
sentence within the statutory range of punishment lies within the trial court’s
discretion. Specifically, he states,
The Court could have exercised its discretion and imposed a
sentence that was more consistent with the fair and equal
administration of justice. Society gains no benefit in incarcerating a
Defendant that has been sober for many years because he drove a
vehicle that did not have an installed guardian interlock device.
Appellant offered no evidence of disproportionality, either at the hearing on
the State’s motion to revoke or in his motion for new trial. He does not complain
that he was denied the opportunity to offer such evidence when the trial court
overruled his motion without a hearing. His argument appears to be that it is
simply unfair to sentence a person to seven years’ incarceration when he has
stopped drinking and when he has come within months of completing a ten-year
term of community supervision.
Because Appellant pled true to the State’s allegations, the sentence was
within the statutory range of punishment, and Appellant has offered no evidence
of disproportionality, we hold that the trial court did not abuse its discretion by
9
Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980);
Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980).
10
Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979).
5
imposing the seven-year sentence on Appellant. We overrule his sole point and
affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 28, 2013
6