No. 4-05-00941-CR
Delivered and Filed: June 7, 2006. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-0549W, Honorable Philip A. Kazen, Jr., Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Rebecca SIMMONS, Justice.
Opinion by: CATHERINE STONE, Justice.
Anthony Lee McClain was convicted of possession of a controlled substance and assessed two years confinement and a fine of $1000. This sentence was suspended and McClain was placed on four years community supervision. Before the probation period ended, the State filed a Motion to Revoke Probation for commission of a new offense and failure to make payment for administrative fees. McClain pled true to both violations and after a hearing, the trial court granted the State's motion and sentenced McClain to two years confinement in a state jail facility. McClain now appeals the trial court's ruling revoking community supervision. We affirm.
Review of a Revocation
In a revocation proceeding, the State must prove by a preponderance of the evidence that the defendant violated a term of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). Appellate review of an order revoking community supervision is limited to a determination of whether the trial court abused its discretion. Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App. 1983); Hays v. State, 933 S.W.2d 659, 660 (Tex.App. San Antonio 1996, no pet.). When ascertaining whether an abuse of discretion occurred, we view the evidence in a light most favorable to the trial court's findings. Jackson, 645 S.W.2d at 305. McClain appeals the trial court's revocation based on an abuse of discretion. It appears that McClain makes two arguments on this theory, and we will address both. First, McClain argues that the trial court abused its discretion in revoking his probation because the violations of his probation were reasonable. Second, the trial court erred in sentencing a jail term rather than re-sentencing community supervision. This amounts to an argument that the trial court's sentence was unreasonable or excessive. We disagree with both of McClain's arguments. At his revocation hearing, McClain entered a plea of true pursuant to two violations of his community supervision: 1) evading detention; and 2) failing to pay administrative fees. McClain claims that "he had a reasonable explanation for his failure to comply with the requirements of his community supervision." Specifically, he states that his initial offense was because "he possessed less than one gram of crack cocaine." Furthermore, "he had completed over three years of community supervision without any problems, and the Motion to Revoke . . . was the first one filed." McClain also provides testimony that he is HIV positive and receives Social Security benefits for his illness, and the Social Security benefits are not enough to make the administrative fee payments. Thus, McClain contends that given "the nature and circumstances of his violations of community supervision," the trial court's decision to revoke probation is an abuse of discretion. A "plea of true, standing alone[,] is sufficient to support the revocation of probation." Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979). "Once sufficient evidence is presented of a violation of a condition of community supervision, the trial court has almost absolute discretion in choosing whether to continue, modify or revoke the community supervision." Castillo v. State, No. 04-04-00169-CR, 2005 WL 357155, at *3 (Tex.App. San Antonio Feb. 16, 2005 no pet.) (mem. op.) (citing Tex. Crim. Proc. Code Ann. art. 42.12 §§ 22, 23 (Vernon Supp. 2004-05); Hays, 933 S.W.3d at 661 (parenthetical omitted)). Therefore, McClain's violation of community supervision was supported by his plea of true, notwithstanding the fact he attempted to offer mitigating circumstances. Hays, 933 S.W.2d at 661; Fletcher v. State, No. 04-02-00766-CR, 2004 WL 199285, at *1 (Tex.App. San Antonio Feb. 4, 2004, no pet.) (mem. op.). McClain's explanation concerning his health and financial status is also without merit. McClain argues that if the court sentences him to jail rather than community supervision he will lose his Social Security benefits. His argument amounts to a statement that the court's sentence is excessive. This argument fails for two reasons. First, McClain has waived this argument. A defendant must object to the excessiveness or the proportionality of the sentence at trial when the court first pronounces the sentence. Rodriguez v. State, 71 S.W.3d 778, 779 (Tex.App. Texarkana 2002, no pet.). There is no evidence in the record and McClain does not point to any evidence that he timely objected to the sentence at trial; therefore, he has waived the argument. Holley v. State, 167 S.W.3d 546, 549 (Tex.App. Houston [14th Dist.] 2005, pet. ref'd). Second, even had McClain preserved the argument, rendition of punishment within the limits of a valid statute is not excessive. Rodriguez, 71 S.W.3d at 779. Accordingly, we find no abuse of discretion in the trial court's revocation of McClain's community supervision.