Davila v. State, No. 13-08-00651-CR (Tex. App. 1/28/2010)
| Decision Date | 28 January 2010 |
| Docket Number | No. 13-08-00651-CR.,No. 13-08-00694-CR.,13-08-00651-CR.,13-08-00694-CR. |
| Parties | ARMANDO DAVILA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 148th District Court of Nueces County, Texas.
Before Chief Justice VALDEZ and Justices YAÑEZ and VELA.
In separate plea hearings,1 appellant, Armando Davila, pleaded guilty to the offense of assault-family violence, a third-degree felony,2 see Tex. Penal Code Ann. § 22.01(b)(2)(A) (Vernon Supp. 2009), and felony driving while intoxicated, a third-degree felony (felony DWI).3 See id. § 49.09(b)(2). In each case, the trial court sentenced him to five years' imprisonment, suspended imposition of the sentences, and placed him on five years' community supervision. The trial court imposed a $500 fine for the offense of assault-family violence and a $1,500 fine for the offense of felony DWI.
The State subsequently filed separate motions to revoke community supervision for each case. The revocation motion pertaining to the felony DWI case alleged that Davila violated the terms and conditions of community supervision by: 1) committing the offenses of attempted assault on a public servant and resisting arrest, search or transport; 2) failing to report to his community-supervision officer for the month of July 2008; 3) failing to pay the required court costs and fine; and 4) failing to report for the mental-health specialized caseload for the month of July 2008. Davila pleaded "not true" to the allegations of attempted assault on a public servant and that he failed to report for the mental-health specialized caseload during July 2008. He pleaded "true" to the remaining allegations. The revocation motion pertaining to the assault-family violence case alleged that Davila violated the terms and conditions of community supervision by committing the offense of attempted assault on a public servant.4 Davila pleaded "not true" to the allegation.
After hearing testimony, the trial court revoked Davila's community supervision in both cases, and in each case, assessed concurrent three-year prison terms. In this consolidated appeal,5 Davila argues that 1) the trial court abused its discretion by revoking his community supervision, and 2) the punishment imposed violated his Eighth Amendment right against cruel and unusual punishment.6 We affirm the judgments as modified.
On October 8, 2008, the trial court heard the revocation motions for both cases in a single hearing. After Davila pleaded to the allegations in both revocation motions, the trial court heard testimony from both sides.
John Beattie, who worked as a community-supervision officer and a specialized mental-health officer for the Nueces County Adult Probation Department, supervised Davila under the specialized mental-health caseload. He testified that Davila did not report to him in the month of July 2008. He stated the conditions of Davila's community supervision required Davila "to report to me at least two times that month [July 2008] in person and one time by telephone or through a—his mental health care physician or caseworker."
Polanco Tatman testified he was a public servant and worked as a corrections officer for the Nueces County Sheriff's Office. His duties at the county jail included escorting the nurse, who administered medications to the inmates. On September 6, 2008, he was on duty, escorting a nurse, who was giving medication to Davila, who was in a jail cell. Officer Tatman opened the door to Davila's cell, allowing the nurse to give Davila some medication. After the nurse left, Officer Tatman was closing the door to Davila's cell when Davila stopped the door from closing and swung his fist at Officer Tatman. Davila did not make contact with Officer Tatman. When the prosecutor asked Officer Tatman, "And if you hadn't gone out of the way, would it have contacted you?", he said, "Yes, probably will."7
Christopher Flores, a corrections officer for the Nueces County Sheriff's Office, testified that on September 6, 2008, he accompanied Officer Tatman when Davila was receiving the medication. Officer Flores stated that he saw Davila "swing at" Officer Tatman.
Davila denied that he attempted to hit Officer Tatman and testified that Officer Tatman assaulted him. When defense counsel asked Davila about the allegation that he failed to report for the mental-health specialized caseload for the month of July, he said that he "was having problems with alcohol" and that he was hospitalized twice that month. He testified that he took medications for his anxiety, depression, and schizophrenia. He stated that on September 6, 2008, he was given the medication, Trazodone, to help him sleep. He stated that after taking that medication, he would go to sleep in about an hour.
In issue one, Davila contends the trial court abused its discretion by revoking his community supervision and imposing the three-year sentences without considering his mental-health issues.
We review the decision to revoke community supervision for an abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The State bears the burden of showing that the defendant committed a violation of the community-supervision conditions. Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.-Eastland 2008, pet. ref'd). An order revoking community supervision "'must be supported by a preponderance of the evidence; in other words, that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation.'" Rickels, 202 S.W.3d at 763-64 (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)). In a revocation case, we review the evidence in the light most favorable to the trial court's decision. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).
In our review of a trial court's determination of the appropriate punishment in any given case, "a great deal of discretion is allowed the sentencing judge." Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Baldridge v. State, 77 S.W.3d 890, 893-94 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). It is "the general rule that as long as a sentence is within the proper range of punishment it will not be disturbed on appeal." Jackson, 680 S.W.2d at 814. A trial court will be found to have abused its discretion only if there is no evidence or factual basis for the punishment imposed. Id.; Benjamin v. State, 874 S.W.2d 132, 135 (Tex. App.-Houston [14th Dist.] 1994, no pet.).
Davila challenges the trial court's decision to revoke his community supervision by five arguments,8 which we group into three categories.
Both revocation motions alleged that Davila committed the offense of attempted assault on a public servant. A person commits assault on a public servant if he or she: "(1) intentionally, knowingly, or recklessly causes bodily injury to another, . . [and] (b) . . . the offense is committed against: (1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty," Tex. Penal Code Ann. § 22.01(a)(1), (b)(1) (Vernon Supp. 2009), "'Public servant' means a person . . . employed, . . . as one of the following, even if he has not yet qualified for office or assumed his duties: (A) an officer, employee, or agent of government; . . . ." Id. § 1.07(41)(A). The penal code sets out the elements for a criminal attempt: "A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Id. § 15.01(a) (Vernon 2003). "Intent may be inferred from acts, words and conduct of [the] accused." Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991).
Here, the trial court could have determined the following from the evidence: 1) while Officer Tatman was closing the door to Davila's jail cell, Davila stopped him from closing the door and swung at him; 2) had Officer Tatman not avoided the swing, he would have been hit by Davila; 3) at the time of the incident, Officer Tatman was on duty as a public servant, who was engaged in the lawful discharge of an official duty as an employee for the Nueces County Sheriff's Office; and 4) at the time of the incident, Davila knew Officer Tatman was a corrections officer.
To the contrary, Davila's testimony was that he did not attempt to hit Officer Tatman. He also testified that prior to the occurrence of the alleged incident, the nurse had given him the medication, Trazodone, which caused him to become sleepy.
At a revocation hearing, the trial court is the sole judge of the credibility of the witnesses and the weight given to their testimony. Hart v. State, 264 S.W.3d 364, 366 (Tex. App.-Eastland 2008, pet. ref'd). Thus, the trial court could have decided to believe Officers Tatman and Flores and disbelieve Davila. Viewing the evidence in the light most favorable to the trial court's decision, we hold that the State proved by a preponderance of the evidence that Davila, with specific intent to commit the offense of assault on a public servant, did an act, i.e., swing at Officer Tatman, that amounted to more than mere preparation, that tended but failed to effect the commission of the intended assault.
The trial court's finding that Davila committed the offense of attempted assault on a public servant supported the decision to revoke Davila's community supervision in both cases. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980) (...
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