In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00171-CR
WILLIAM DAVID WITTMANN II, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 100th District Court
Childress County, Texas
Trial Court No. 5881, Honorable Stuart Messer, Presiding
November 22, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, William David Wittmann II, appeals from the order of the trial court
adjudicating him guilty of the offense of assault against a family member.1 After hearing
the evidence regarding punishment, the trial court sentenced appellant to ten years in
the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ).
Appellant has perfected his appeal and presents three issues to this Court. First,
appellant contends that the trial court abused its discretion by finding that appellant had
1
See TEX. PENAL CODE ANN. § 22.01(a), (b)(2) (West Supp. 2016).
violated his terms and conditions of deferred adjudication community supervision.
Second, appellant contends that certain of his terms and conditions of deferred
adjudication community supervision were unconstitutionally vague. Finally, appellant
contends that the trial court’s sentence of ten years’ incarceration was disproportionate
to the severity of the crime and therefore in violation of the United States Constitution’s
Eighth Amendment proscription against cruel and unusual punishment. See U.S.
CONST. amend. VIII. Disagreeing with appellant, we will affirm the judgment of
conviction and sentence entered by the trial court.
Factual and Procedural Background
Pursuant to a plea agreement, appellant entered a plea of guilty to the offense of
assault against a family member on December 22, 2015. In accordance with the plea
agreement, appellant was sentenced to five years’ deferred adjudication and placed on
community supervision, with a fine of $1,000 and court costs of $249. The State
subsequently filed a motion to adjudicate on January 20, 2016. Thereafter, the State
filed an amended motion to adjudicate on March 8. The amended motion to adjudicate
contained allegations that appellant had violated the terms and conditions of his
deferred adjudication community supervision by (1) committing the offense of assault
and violation of a protective order on January 13, 2016, a violation of condition 1; (2)
communicating with the victim in the assault case on January 13, 2016, a violation of
condition 24; (3) going within 200 feet of the victim, the victim’s residence, or the
victim’s place of employment on January 13, 2016, a violation of condition 25; and (4)
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failing to avoid places where the victim was on January 13, 2016, a violation of condition
26.2
The trial court conducted a hearing on the State’s first amended application to
adjudicate appellant guilty on April 7, 2016. Appellant entered a plea of “Not True” to
the allegations contained in the State’s pleading.
At the hearing on the State’s motion to adjudicate, the probation officer for the
trial court, Marc Latimer, testified that he conducted an intake interview with appellant
following his original plea of guilty. At that time, Latimer testified he went over all of the
terms and conditions of community supervision with appellant. Further, appellant
initialed each term and condition of community supervision, thereby signifying that he
understood each term and condition of community supervision. The clerk’s record
contains the order of the court setting forth the terms and conditions of community
supervision, and each applicable term and condition has the initials W.W. in front of it.
Additionally, Marci Mills, the probation officer who actually supervised appellant,
testified that she met with appellant on January 4, 2016, and discussed that appellant
should not have any contact with the victim, Brittany Schlenker.
Justice of the Peace for Childress County, Randy Rister, testified that on
December 3, 2015, he served a protective order on appellant at the Childress County
jail. Judge Rister further testified that he went over in detail the terms of the protective
order with appellant. Included within the terms of the protective order was the provision
2
The first amended application to adjudicate appellant guilty also contained an allegation that
appellant had failed to avoid injurious and vicious conduct and abstain from the purchase and use of
alcohol, marijuana, and other substances. The State waived these allegations before the hearing began
on April 7, 2016.
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that appellant was not to go within 200 yards of the victim, her residence, her mother’s
residence, Childress Elementary, or Dairy Queen.3 Judge Rister was specific about the
fact that he identified the victim covered by the protective order as Brittany Schlenker.
Glenn Clepper then testified that he was the victim of the assault alleged in the
amended motion to adjudicate appellant. Clepper testified that his residence is located
three houses from the residence of the victim. He is the victim’s stepfather. On
January 13, 2016, Clepper received some communication from his stepson that caused
him to check on the victim. He proceeded down the alley toward the victim’s house and
saw appellant and two other men coming out of the victim’s backyard into the alley.
Appellant and the two other men got into a pickup truck and started driving off. Clepper
testified that he shouted at them not to come back. The pickup then stopped and
appellant and the two others got out and started running toward him. When appellant
got to Clepper, he hit him in the eye with his fist two or three times. Clepper testified he
was able to wrestle appellant to the ground when the other two men jumped on his
back. Clepper let go of appellant and all three men jumped up and ran to the truck and
left the alley.
Clepper testified that he then called law enforcement and reported the incident.
Officer Toby Brazee of the Childress Police Department responded to the reported
assault. Brazee testified that when he saw Clepper immediately after the assault,
Clepper had a knot and a scrape on his forehead. The State introduced State’s exhibit
3
We note that the amended motion to adjudicate stated appellant violated the protective order by
going within 200 feet of the victim’s residence. This difference is without significance since 200 feet is
closer than 200 yards.
4
7, a picture of Clepper taken on the evening of the assault. According to Clepper, the
injuries were not serious but did cause him pain.
After the State rested its case-in-chief, appellant called Brittany Schlenker.
Schlenker testified that on January 13, 2016, she did not have any contact with
appellant, and that she had no phone calls or texts from appellant. She further testified
that Clepper and appellant had a contentious relationship. On cross-examination, she
restated her testimony by saying she did not see appellant in her backyard on January
13, 2016.
Appellant testified that he was a passenger in the truck and did not have control
over where the truck went. Appellant testified that he knew he was not supposed to go
around the victim’s residence. He denied having struck Clepper and testified that
Clepper came running down the alley and made contact with him that resulted in the
two wrestling. Further, appellant denied having any communication with the victim or
seeing her on January 13, 2016.
After the evidence was concluded, the trial court found that appellant had
violated condition 1 of his community supervision order by committing the offense of
assault against Clepper. Further, the trial court found that appellant had violated the
protective order by going within 200 feet of the victim’s residence. The trial court found
that this violation of the protective order was also a violation of condition 25 of the
community supervision order by going within 200 feet of the victim’s residence. After
hearing punishment testimony, the trial court sentenced appellant to ten years’
confinement in the ID-TDCJ.
5
Appellant has perfected his appeal and brings forth three issues. Appellant
contends that the trial court abused its discretion in adjudicating appellant guilty of
assault on a family member, that the terms and conditions of community supervision
were unconstitutionally vague, and that the sentence was disproportionate and
therefore in violation of the United States Constitution. Disagreeing, we will affirm.
Adjudicating Appellant Guilty
Standard of Review
On violation of a condition of community supervision imposed under an order of
deferred adjudication, the defendant is entitled to a hearing limited to the determination
by the trial court of whether it proceeds with an adjudication of guilt on the original
charge. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2016); Johnson v.
State, 386 S.W.3d 347, 350 (Tex. App.—Amarillo 2012, no pet.) (citing Antwine v. State,
268 S.W.3d 634, 636 (Tex. App.—Eastland 2008, pet. ref’d)). We review this
determination in the same manner as we review a hearing to revoke community
supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b); Johnson, 386 S.W.3d
at 350 (citing Antwine, 268 S.W.3d at 636). We review an order revoking community
supervision for an abuse of discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex.
Crim. App. 2006).
When the standard of review is abuse of discretion, the record must simply
contain some evidence to support the decision made by the trial court. See Herald v.
State, 67 S.W.3d 292, 293 (Tex. App.—Amarillo 2001, no pet.). In determining whether
some evidence supports the trial court’s decision, we view the evidence in the light most
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favorable to the trial court’s ruling. See Cardona v. State, 665 S.W.2d 492, 493 (Tex.
Crim. App. 1984) (en banc). The trial judge is the trier of fact and the arbiter of the
credibility of the testimony during a hearing on a motion to adjudicate. See Allbright v.
State, 13 S.W.3d 817, 819 (Tex. App.—Fort Worth 2000, pet. ref’d). In a proceeding to
revoke community supervision, the burden of proof is on the State to show by a
preponderance of the evidence that the defendant violated a term and condition of
community supervision as alleged in the motion to revoke. See Cardona, 665 S.W.2d
at 493. If the State fails to meet its burden of proof, the trial court abuses its discretion
by revoking community supervision. Id. at 493–94. Proof of a violation of a single term
and condition of community supervision is sufficient to support a trial court’s decision to
adjudicate. Antwine, 268 S.W.3d at 636.
Analysis
We begin our analysis with the reminder that the trial court is the sole trier of fact
and arbiter of the credibility of the testimony in a motion to adjudicate. See Allbright, 13
S.W.3d at 819. With this admonition in mind, we turn to the record before the Court.
During the hearing on the motion to adjudicate, the trial court heard the testimony
of the victim of the assault alleged in the first amended motion to adjudicate, Clepper.
Clepper testified that appellant struck him two or three times in the face on January 13,
2016, and that the resulting injury caused him pain. In addition, Officer Brazee took a
photograph of Clepper. The photograph, introduced as State’s exhibit 7, clearly shows
that Clepper had an injury to his face and forehead. One of appellant’s contentions is
that Clepper received no injury during the alleged assault. The Texas Penal Code
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defines assault as “intentionally, knowingly, or recklessly causing bodily injury to
another.” See TEX. PENAL CODE ANN. § 22.01(a)(1).4 Section 1.07(a)(8) states that
“‘[b]odily injury’ means physical pain, illness or any impairment of physical condition.”
See § 1.07(a)(8) (West Supp. 2016); Settlemyre v. State, 489 S.W.3d 607, 609 (Tex.
App.—Eastland 2016, pet. ref’d) (holding that the Texas Penal Code by its very terms
requires nothing more to prove assault than that the victim felt pain). Thus, the State
proved the elements of assault.
Although appellant denied striking Clepper, it was up to the trial court to decide
which testimony was the credible testimony. See Allbright, 13 S.W.3d at 819. By the
trial court’s finding that appellant had violated condition 1 of his terms and conditions of
community supervision, that he commit no offense against the laws of this state, any
other state or the United States, it is apparent that the trial court found the testimony of
Clepper to be the credible testimony. See id. In reviewing this finding, we review the
record in the light most favorable to the trial court’s ruling. See Cardona, 665 S.W.2d at
493. This finding is supported by the evidence produced at the hearing and is sufficient
to meet the State’s burden of proof by a preponderance of the evidence. See id.
Therefore, the trial court had some evidence upon which to base its ruling. See Herald,
67 S.W.3d at 293. Thus, the trial court did not abuse its discretion in adjudicating
appellant guilty of the offense of assault on a family member. See Rickels, 202 S.W.3d
at 763. Accordingly, we overrule appellant’s first issue.5
4
Further reference to the Texas Penal Code will be by reference to “section ____” or “§ ____.”
5
Having found that the trial court did not abuse its discretion in finding that appellant had
committed a new offense, we need not address appellant’s second issue that certain terms and
conditions of community supervision were unconstitutionally vague.
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Punishment Assessed
By his third issue, appellant contends that the punishment assessed was grossly
disproportionate to the severity of the crime in violation of appellant’s Eighth
Amendment rights. See U.S. CONST. amend. VIII. It is appellant’s contention that the
trial court sentence of ten years’ confinement in the ID-TDCJ was so grossly
disproportionate as to violate the aforementioned Eighth Amendment to the United
States Constitution.
Appellant and the State both agree that Texas courts have long held that, as long
as punishment is assessed within the range set by the legislature in a valid statute, the
punishment is not excessive. See Romero v. State, No. 07-15-00036-CR, 2015 Tex.
App. LEXIS 12176, at *4 (Tex. App.—Amarillo Nov. 30, 2015, pet. ref’d) (mem. op.).
However, a federal constitutional prohibition against grossly disproportionate sentences
does survive. See id. In deciding the question of proportionality of a sentence we are
guided by the following objective criteria: (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. See id. at *4–5. However, the state legislature is afforded great
deference. See id. at *5.
In applying these factors to the case before the Court, we note that appellant was
convicted of assault on a family member. This is a third-degree felony offense carrying
a punishment range of two to ten years in the ID-TDCJ. See §§ 12.34 (West 2011),
22.01(b)(2). We have no information in this record as to what other individuals charged
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with the same offense have received in Texas. Further, there is nothing in the record
indicating what similarly situated defendants have received, in terms of punishment, in
other jurisdictions.
To the above, we add the following observations. Appellant was placed on
deferred adjudication for the instant offense on December 22, 2015. Within the space
of less than a month, the incident which led to the filing of the State’s motion to proceed
with adjudication occurred. Further, as the trial court stated in open court, it was very
apparent that appellant understood the terms and conditions of community supervision,
more especially those that prohibited his contact with the victim. Finally, the trial court
heard testimony from the Chief Deputy of the Childress county jail that over 900 phone
calls had been made from the jail to the victim’s phone while appellant was being held in
the jail.
Despite what appellant may contend, that there is nothing in the record to
indicate the seriousness of the injuries received by the victim at the time of the initial
assault, it is still a physical assault on someone with whom appellant had a dating
relationship. This is a serious offense. Moreover, the factual allegations, to which
appellant pleaded guilty, indicate that the assault was occasioned by appellant
restricting the airway of the victim. Again, this is a very serious offense.
In light of the gravity of the offense, the short time that appellant was on
community supervision, and appellant’s apparent attempts to make contact with the
victim after the date of the adjudication hearing, we find that there is nothing shown to
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indicate that the sentence pronounced by the trial court was grossly disproportionate.
We overrule appellant’s third issue.
Conclusion
Having overruled all of appellant’s issues necessary for our review, we affirm the
trial court’s judgment and sentence.
Mackey K. Hancock
Justice
Do not publish.
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