Terrell, Jeffrey Charles v. State

Affirmed and Memorandum Opinion filed October 5, 2006 Affirmed and Memorandum Opinion filed October 5, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-04-00996-CR ____________ JEFFREY CHARLES TERRELL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 339th District Court Harris County, Texas Trial Court Cause No. 899,988 M E M O R A N D U M   O P I N I O N Appellant, Jeffrey Charles Terrell, pleaded guilty, without an agreed punishment recommendation, to the felony offense of driving while intoxicated. The trial court found him guilty and assessed punishment at six years= community supervision, and a $500 fine. Subsequently, the State filed a motion to revoke community supervision. The trial court revoked community supervision and sentenced appellant to six years= confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant challenges the revocation and sentence with three issues: (1) the sentence is a violation of the Eighth Amendment to the U.S. Constitution because it is a disproportionate sentence; (2) the trial court violated appellant=s due process rights under the Texas Constitution by sentencing him to actual imprisonment rather than reinstating community supervision; and (3) the State did not produce legally sufficient evidence to prove appellant was the same person placed on probation as alleged. We affirm. Factual and Procedural Background Since 1997, appellant has been arrested eight times for driving while intoxicated. Appellant=s most recent probationary term was for a DWI offense committed on January 20, 2002. Appellant pleaded guilty and received six years= probation, beginning in May of 2002. During the term of his probation, appellant committed numerous probation violations, including fleeing from an officer, driving while intoxicated, public intoxication, failing to present written verification of employment on multiple dates, failing to fulfill community service requirements, failing to pay supervision fees, failing to pay a fine and court costs, failing to pay Crime Stoppers, driving with a suspended license and without a deep-lung breath analysis machine, and failing to participate in the Substance Abuse Felony Punishment Facility Caseload. As a result of appellant=s failure to abide by the requirements of his probation, the State filed a motion to revoke probation on March 15, 2004. Judge Caprice Cosper of Harris County held a hearing on September 3, 2004. Appellant pleaded true to the allegations and stipulated to certain facts, including that he was the person serving probation as alleged. The trial court revoked probation and sentenced appellant to six years= imprisonment in the Texas Department of Corrections, Institutional Division. Appellant timely filed a notice of appeal raising three issues based on the Eighth Amendment to the United States Constitution, Due Process protections under the Texas Constitution, and a legal sufficiency challenge. Analysis I. Cruel and Unusual Punishment In his first issue, appellant contends that his right to be free from cruel and unusual punishment, as guaranteed by the Eighth Amendment to the U.S. Constitution, was violated. Specifically, appellant argues that his sentence of six years was grossly disproportionate to the offense. However, appellant has waived this issue. At trial, appellant did not object to or complain about his sentence. Thus, appellant=s issue is waived. Jagaroo v. State, 180 S.W.3d 793, 802 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Having no error to review, we overrule appellant=s first issue. II. Due Process Appellant next attacks his sentence as a violation of his rights under the Texas Constitution. Appellant argues that although his sentence was within the statutory range of punishment, it represents a disparity when compared with sentences for similar and more serious crimes. Appellant presented no argument, complaint, or evidence of such a disparity to the trial court. Thus, as with his first issue, appellant has waived this issue by failing to object to or complain about his sentence to the trial court. See Santos v. Comm=n for Lawyer Discipline, 140 S.W.3d 397, 404B05 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (holding that failure to object at trial waived Due Process issue on appeal); Jagaroo, 180 S.W.3d at 802 (holding appellant waived complaint concerning sentence as violation of Texas and U.S. Constitutions by failing to object at trial); Nicholas, 56 S.W.3d at 768 (same). We overrule appellant=s second issue. III. Sufficiency of the Evidence In his final issue, appellant argues that there was insufficient evidence to prove that he was the person placed on probation as indicated in the judgment and order of probation. Specifically, appellant argues that, although he stipulated that he was the person on probation, the State failed to adduce adequate evidence at the hearing. Appellant asks us to view the evidence presented at trial absent his stipulation. We disagree that this is the proper way to view the evidence and will overrule appellant=s final issue. At a revocation hearing, the State must prove that the defendant is the same individual who is named in the judgment and order of probation, and then must prove that he violated a term of probation as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). The State=s burden of proof is preponderance of the evidence. Id. In our review of the evidence, we view it in the light most favorable to the trial court=s judgment. Moore v. State, 11 S.W.3d 495, 498 (Tex. App.CHouston [14th Dist.] 2000, no pet.) . Our review is solely for an abuse of discretion, and the record simply must contain some evidence to support the trial court=s decision. See id. Below, the trial court did not abuse its discretion. Appellant himself provided conclusive proof that he was the person placed on probation as indicated in the judgment and probation order. The stipulation of evidence, which was admitted and which appellant stated was true in open court, conclusively establishes that he was the person placed on probation. Appellant cites only one case for the proposition that his stipulation is not adequate proof. See McCowan v. State, 739 S.W.2d 652 (Tex. App.CBeaumont 1987, pet. ref=d). However, that case is irrelevant here. In that case, the appellant did not stipulate to the necessary evidence as appellant did in this case. Therefore, it does not stand for the proposition that our review must concern only the evidence offered by the State. Indeed, we know of no case that has held that a stipulation of evidence, conclusively establishing certain necessary facts, is ineffective on its own to prove the stipulated facts. Cf. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (stating the rule that, when conducting a legal sufficiency review of a conviction, a court should evaluate all of the evidence in the record, whether direct or circumstantial, admissible or not). We overrule appellant=s final issue. Conclusion Having overruled each of appellant=s issues, we affirm the judgment of the trial court. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed October 5, 2006. Panel consists of Justices Fowler, Edelman, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b).