NO. 12-20-00024-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JEFFERY THOMAS WHITE, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Jeffery Thomas White appeals the trial court’s order revoking his deferred adjudication
community supervision and his ensuing ten-year sentence. Appellant raises four issues on
appeal. We modify and affirm as modified.
BACKGROUND
Appellant was charged by indictment with obstruction or retaliation and pleaded “guilty.”
The trial court deferred finding Appellant “guilty” and placed him on community supervision for
five years.
On December 12, 2019, the State filed a motion to proceed to final adjudication alleging
that Appellant violated a condition of his community supervision by, on December 9, 2019,
failing to report to the Smith County Community Supervision and Corrections Department “after
Court or upon release from [the] Smith County Jail.”
On January 3, 2020, the trial court conducted a hearing on the State’s motion. At the
commencement of the hearing, Appellant pleaded “not true” to the allegation that he failed to
report as alleged in the State’s motion.
The State called Smith County Community Supervision Officer Halie Melot as its sole
witness. Melot, who was present during Appellant’s original plea proceedings, identified
Appellant and confirmed that he was admonished of the condition of his community supervision
at issue. She stated that she heard the judge tell Appellant about this condition and that
Appellant appeared to understand the condition. She further stated that Appellant was released
from jail at 11:52 a.m. on December 9, 2019, and did not report to the Smith County Community
Supervision Office that day, which violated a condition of his community supervision.
In contrast, Appellant testified that he believed he had forty-eight hours following his
release from jail to report to the community supervision office. He further testified that he spent
the remainder of the day on which he was released from jail looking for a place to live.
Ultimately, the trial court found the alleged violation in the State’s motion to be “true,”
adjudicated Appellant “guilty” of obstruction or retaliation, revoked Appellant’s community
supervision, and sentenced Appellant to imprisonment for ten years. This appeal followed.
REVOCATION OF COMMUNITY SUPERVISION
In his first issue, Appellant contends that the trial court erred in revoking his community
supervision because the evidence is insufficient to support the revocation. A court may revoke a
defendant’s regular community supervision or deferred adjudication community supervision if
the state proves, by a preponderance of the evidence, that the defendant violated a condition
thereof. See Hacker v. State, 389 S.W.3d 860, 864–65 (Tex. Crim. App. 2013). Proof of a
single violation is sufficient. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012). In the
community supervision revocation context, preponderance of the evidence means “that greater
weight of the credible evidence which would create a reasonable belief that the defendant has
violated a condition of his probation.” Hacker, 389 S.W.3d at 865.
The applicable burden of proof informs the appellate standard of review for sufficiency
of the evidence. Id. For an order revoking community supervision, because the less rigorous
preponderance of the evidence standard applies, we review for abuse of discretion. See id. If the
state fails to satisfy its burden of proof, the trial court abuses its discretion by revoking a
defendant’s community supervision. See Cardona v. State, 665 S.W.2d 492, 493–94 (Tex.
Crim. App. 1984).
In determining the sufficiency of the evidence to sustain a revocation, an appellate court
views the evidence in the light most favorable to the trial court’s ruling. Id. at 493. As the
factfinder at a revocation hearing, the trial court is the sole judge of the credibility of witnesses
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and the weight to be given their testimony and may accept or reject all or any part of a witness’s
testimony. Moore v. State, 11 S.W.3d 495, 498 (Tex. App.–Houston [14th Dist.] 2000, no
pet.).
Here, Melot confirmed that Appellant was admonished of the condition of his community
supervision at issue. She further stated that she heard the judge tell Appellant about this
condition and that Appellant appeared to understand it. Lastly, Melot testified that Appellant
was released from jail at 11:52 a.m. on December 9, 2019, and did not report to the Smith
County Community Supervision Office that day, which violated a condition of his community
supervision.
Appellant testified that he believed he had forty-eight hours from the time of his release
to report to the community supervision office. On appeal, he argues that the condition of his
community supervision he is alleged to have violated contradicts a separate condition of
community supervision, under which he was required to “[r]eport in person to your supervision
officer within 48 hours after release from jail or other confinement following any arrest or
conviction.” We disagree with Appellant’s contention that these terms of his community
supervision are conflicting. But even if we were to assume arguendo that this other condition is
contradictory, the record conclusively establishes that Appellant was given a copy of the terms
and conditions of his community supervision, that he read and understood them, and that he
failed timely to appeal the judgment imposing community supervision to address the supposed
conflicting conditions of which he now complains. Thus, by failing to appeal the trial court’s
order placing him on deferred adjudication community supervision, Appellant forfeited any issue
with regard to propriety of its terms. See Wiley v. State, 410 S.W.3d 313, 320–21 (Tex. Crim.
App. 2013); Riles v. State, 417 S.W.3d 606, 608–09 (Tex. App.–Amarillo 2013), aff’d, 452
S.W.3d 333 (Tex. Crim. App. 2015).
Based on our review of the record, we conclude that the greater weight of the credible
evidence before the trial court supports its finding that Appellant violated a condition of his
community supervision as alleged in the State’s motion to revoke. Therefore, we hold that the
trial court did not abuse its discretion by revoking Appellant’s community supervision and
adjudicating him guilty of obstruction or retaliation. Appellant’s first issue is overruled.
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ADMISSIBILITY OF PUNISHMENT EVIDENCE
In his second issue, Appellant argues that the trial court abused its discretion by admitting
evidence of his criminal history, which was not relevant to its determination of whether he
violated a condition of his community supervision.
Standard of Review and Governing Law
We review a trial court’s ruling on the admissibility of evidence for an abuse of
discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).
A trial court does not abuse its discretion when its ruling falls within the zone of reasonable
disagreement. See id.
Under the Texas Rules of Evidence, relevant evidence generally is admissible. TEX. R.
EVID. 402. At a revocation hearing, once the court has determined that the defendant violated a
condition of his community supervision and adjudicates guilt, punishment is assessed as though
adjudication had not been deferred. See TEX. CODE CRIM. PROC. ANN. art. 42A.110(a) (West
2018); cf. Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999) (discussing ability to
present punishment evidence in revocation proceeding prior to adjudication).
Furthermore, during the punishment phase of a noncapital trial, “[r]egardless of the plea
and whether the punishment [is] assessed by the judge or the jury, evidence may be offered by
the state and the defendant as to any matter the court deems relevant to sentencing[.]” TEX.
CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2020). The admissibility of evidence
in a noncapital trial is a matter of policy, which includes giving complete information to the
factfinder to allow it to tailor an appropriate sentence for the defendant. See Mata v. State, 226
S.W.3d 425, 432 (Tex. Crim. App. 2007). As a result, what is relevant for the factfinder to
consider during punishment is determined by whatever is helpful to it. See id.
Discussion
In the instant case, Appellant objected to the admission of testimony regarding his
criminal history as set forth in the presentence investigation report (PSI) because it is not
relevant to the allegations of whether he violated the terms and conditions of his community
supervision. In admitting the testimony, the trial court noted that if it revoked Appellant’s
community supervision, it would be called upon to sentence him.
A trial court has broad discretion in determining the admissibility of evidence presented
at the punishment phase of trial and may admit evidence deemed relevant to sentencing,
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including evidence of other crimes or bad acts. See Schultze v. State, 177 S.W.3d 26, 40 (Tex.
App.–Houston [1st Dist.] 2005, pet. ref’d). Furthermore, at the outset of the proceedings, the
trial court, upon the State’s request and without objection from Appellant, took judicial notice of
the PSI. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (any error admitting
evidence rendered harmless when other properly admitted evidence proved same fact).
Therefore, because the evidence of Appellant’s criminal history is relevant to the issue of
punishment and the trial court already had taken judicial notice of the PSI, we hold that the trial
court did not abuse its discretion in admitting this testimony and, further, that any error in the
admission of such testimony is harmless. See Schultze, 177 S.W.3d at 40; see also Brooks, 990
S.W.2d at 287. Appellant’s second issue is overruled.
CRUEL AND UNUSUAL PUNISHMENT
In his third issue, Appellant argues that his ten-year sentence amounts to cruel and
unusual punishment. However, Appellant made no timely objection to the trial court raising the
issue of cruel and unusual punishment and has, therefore, failed to preserve any such error. See
Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver with regard to rights
under the Texas Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995)
(waiver with regard to rights under the United States Constitution); see also TEX. R. APP. P. 33.1;
Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (“Preservation of error is a systemic
requirement that a first-level appellate court should ordinarily review on its own motion[;] . . . it
[is] incumbent upon the [c]ourt itself to take up error preservation as a threshold issue.”). But
even despite Appellant’s failure to preserve error, we conclude that the sentence about which he
complains does not constitute cruel and unusual punishment.
The Eighth Amendment to the Constitution of the United States provides that
“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. CONST. AMEND. VIII. This provision was made applicable to the
states by the Due Process Clause of the Fourteenth Amendment. Meadoux v. State, 325 S.W.3d
189, 193 (Tex. Crim. App. 2010) (citing Robinson v. California, 370 U.S. 660, 666–67, 82 S.
Ct. 1417, 1420–21, 8 L. Ed. 2d 758 (1962)).
The legislature is vested with the power to define crimes and prescribe penalties. See
Davis v. State, 905 S.W.2d 655, 664 (Tex. App.–Texarkana 1995, pet. ref’d); see also Simmons
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v. State, 944 S.W.2d 11, 15 (Tex. App.–Tyler 1996, pet. ref’d). Courts repeatedly have held that
punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or
unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495
S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664.
In the case at hand, Appellant was convicted of obstruction or retaliation by threatening
to assault a public servant, the punishment range for which is between two to ten years. See TEX.
PENAL CODE ANN. §§ 12.34(a) (West 2019), 36.06(c)(2) (West 2016). Therefore, because the
sentence imposed by the trial court falls within the range set forth by the legislature, the
punishment is not prohibited as cruel, unusual, or excessive per se.
Nonetheless, Appellant contends that his sentence is grossly disproportionate to the crime
of which he was convicted. Under the three part test originally set forth in Solem v. Helm, 463
U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), the proportionality of a sentence is evaluated
by considering (1) the gravity of the offense and the harshness of the penalty, (2) the sentences
imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for
commission of the same crime in other jurisdictions. Id., 463 U.S. at 292, 103 S. Ct. at 3011.
The application of the Solem test has been modified by Texas courts and the Fifth Circuit Court
of Appeals in light of the Supreme Court’s decision in Harmelin v. Michigan, 501 U.S. 957, 111
S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a threshold determination that the sentence is
grossly disproportionate to the crime before addressing the remaining elements. See, e.g.,
McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992), cert. denied, 506 U.S. 849, 113 S. Ct.
146, 121 L. Ed. 2d 98 (1992); see also Jackson v. State, 989 S.W.2d 842, 845–46 (Tex. App.–
Texarkana 1999, no pet.).
We first must determine whether Appellant’s sentence is grossly disproportionate. In so
doing, we are guided by the holding in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L.
Ed. 2d 382 (1980). In Rummel, the Supreme Court addressed the proportionality claim of an
appellant who had received a mandatory life sentence under a prior version of the Texas habitual
offender statute for a conviction of obtaining $120.75 by false pretenses. See id., 445 U.S. at
266, 100 S. Ct. at 1135. A life sentence was imposed because the appellant also had two prior
felony convictions––one for fraudulent use of a credit card to obtain $80.00 worth of goods or
services and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 265–
66, 100 S. Ct. at 1134–35. After recognizing the legislative prerogative to classify offenses as
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felonies and, further, considering the purpose of the habitual offender statute, the court
determined that the appellant’s mandatory life sentence did not constitute cruel and unusual
punishment. Id., 445 U.S. at 284–85, 100 S. Ct. at 1144–45.
In the case at hand, the offense committed by Appellant––obstruction or retaliation by
threatening assault on a public servant––is more serious than the combination of offenses
committed by the appellant in Rummel, while Appellant’s ten-year sentence is less severe than
the life sentence upheld by the Supreme Court in Rummel. Thus, it is reasonable to conclude
that if the sentence in Rummel was not unconstitutionally disproportionate, then neither is the
sentence assessed against Appellant in the case at hand. Therefore, since the threshold test has
not been satisfied, we need not apply the remaining elements of the Solem test. See McGruder,
954 F.2d at 316; see also Jackson, 989 S.W.2d at 845–46. Appellant’s third issue is overruled.
COURT COSTS
In his fourth issue, Appellant argues that the trial court erred in assessing a “time
payment” fee previously authorized by Texas Local Government Code, Section 133.103 in its
judgment. 1 The State concedes that this fee is facially unconstitutional. We agree. See Salinas
v. State, 523 S.W.3d 103, 112 n.54 (Tex. Crim. App. 2017); see also Ovalle v. State, 592 S.W.3d
at 618; Simmons v. State, 590 S.W.3d 702, 712 (Tex. App.–Waco 2019, no pet.); Dulin v. State,
583 S.W.3d 351, 353 (Tex. App.–Austin 2019, no pet.); Johnson v. State, 573 S.W.3d 328, 340
(Tex. App.–Houston [14th Dist.] 2019, no pet.) (concluding that, because the portions of time
payment fee authorized by subsections 133.103(b) and (d) were deposited in general revenue and
were not sufficiently allocated to administration of criminal justice system, those subsections
were facially unconstitutional as violating the separation-of-powers provision of Texas
Constitution).
1
The Texas Legislature passed legislation, effective January 1, 2020, that transfers Texas Local
Government Code, Section 133.103 to Texas Code of Criminal Procedure, Article 102.030 and revises the statute to
provide that all of the fees collected under the section are “to be used for the purpose of improving the collection of
outstanding court costs, fines, reimbursement fees, or restitution or improving the efficiency of the administration of
justice in the county or municipality.” See Act of May 23, 2019, 86th Leg., R.S., S.B. 346, § 2.54, 2019 Tex. Sess.
Law Serv. Ch. 1352. The changes apply only to a cost, fee, or fine assessed on a conviction for an offense
committed on or after the effective date of the Act. Id. § 5.01. Because the offense in this case was committed
before January 1, 2020, the former law applies. See Ovalle v. State, 592 S.W.3d 615, 617 n.1 (Tex. App.–Dallas
2020, pet. filed).
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Here, the judgment of conviction reflects that the trial court assessed $229.00 in court
costs. The judgment includes a document identified as “Attachment A Order to Withdraw
Funds,” which states that Appellant incurred “[c]ourt costs, fees and/or fines and/or restitution”
in the amount of $229.00 The certified bill of costs itemizes the court costs imposed and
indicates that a $15.00 time payment fee “will be assessed if any part of a fine, court costs, or
restitution is paid on or after the 31st day after the date the judgment assessing the fine, court
costs, or restitution is entered.” But see TEX. LOC. GOV’T CODE ANN. § 133.103(c) (West 2008)
(treasurer shall deposit ten percent of fees collected under this section in general fund of county
or municipality for purpose of improving efficiency of administration of justice in county or
municipality).
The proper remedy when a trial court erroneously includes amounts as court costs is to
modify the judgment to delete erroneous amounts See Sturdivant v. State, 445 S.W.3d 435, 443
(Tex. App.–Houston [1st Dist.] 2014, pet. ref’d). Accordingly, we will modify the trial court’s
judgment and Attachment A to reflect the appropriate assessment of court costs that do not
include the unconstitutional portion of the time payment fee. See Ovalle, 592 S.W.3d at 618.
Appellant’s fourth issue is sustained.
CONCLUSION
Having sustained Appellant’s fourth issue, we modify the trial court’s judgment to reflect
that the amount of court costs is $215.50. See TEX. R. APP. P. 43.2(b). We also modify
Attachment A to state that the total amount of “court costs, fees and/or fines and/or restitution” is
$215.50. See id. Having overruled Appellant’s first, second, and third issues, we affirm the trial
court’s judgment as modified.
GREG NEELEY
Justice
Opinion delivered November 30, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 30, 2020
NO. 12-20-00024-CR
JEFFERY THOMAS WHITE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-1257-19)
THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that the judgment of
the court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to reflect that the amount of court costs is $215.50. We also
modify Attachment A to state that the total amount of “court costs, fees and/or fines and/or
restitution” is $215.50; in all other respects the judgment of the trial court is affirmed; and that
this decision be certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.