Joshua Maphai Rushing v. the State of Texas

AFFIRMED and Opinion Filed May 29, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00557-CR

JOSHUA MAPHAI RUSHING, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-81554-2017

MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Garcia
Opinion by Justice Pedersen, III
Appellant Joshua Maphai Rushing appeals the trial court’s May 5, 2023

Judgment Adjudicating Guilt. In a single issue, appellant contends that the trial court

disregarded evidence of “the circumstances of his situation” and abused its

discretion when it revoked his community supervision, adjudicated his guilt for

aggravated assault with a deadly weapon, and sentenced him to five years in the

Institutional Division of Texas Department of Criminal Justice. We affirm.
Background

In 2017, appellant was indicted in this case for aggravated assault of his wife

involving a hatchet. He pleaded guilty, and the trial court placed him on deferred

adjudication community supervision for seven years. At the same time, he was

placed on deferred adjudication community supervision for five years for a dumping

offense. And one year later, he was charged with and pleaded to another assault

family violence offense, for which he was placed on a third deferred adjudication

community supervision.

In February 2018, the State filed a petition to adjudicate appellant’s guilt,

which was heard on March 23, 2018. Appellant entered a plea of true, and the trial

court extended his community supervision period to ten years.

The State filed another petition to adjudicate in May of 2019, after appellant

was charged again with assault family violence. And in November 2020, he was

charged with four offenses involving an altercation with police officers; the officers

had responded to a call that appellant was physically assaulting a woman (his wife)

in a public parking lot. After being amended multiple times, the May 2019 petition

was finally heard as the Sixth Amended State’s Petition to Enter a Final Adjudication

of Defendant’s Guilt (the Sixth Amended Petition) on December 2, 2021.

The December hearing addressed the Sixth Amended Petition in this case as

well as amended petitions in appellant’s other two deferred adjudication cases, i.e.,

the dumping case and the 2018 family violence case. After two days of evidence, the

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trial judge revoked appellant’s probation and adjudicated his guilt in the dumping

and family violence cases. The judge assessed terms of incarceration in both of those

cases. However, he gave appellant a month to get his affairs in order and ordered

him to appear to begin his concurrent sentences on January 29, 2022. The judge

continued appellant’s community service in this case, adding the new condition that

appellant report as ordered on January 29. Appellant did not report, and the State

then filed its State’s Petition to Enter a Final Adjudication of Defendant’s Guilt (the

Final Petition).

Appellant was arrested September 26, 2022, and the Final Petition was heard

on May 2, 2023. The court heard testimony from appellant’s community supervision

official establishing his failure to report in 2022 to begin his sentences and other

administrative violations of his community supervision. Appellant testified that he

had not reported as ordered because—based on the four police-related charges he

had pending—he “feared for [his] safety.” He stated, “Since my rights have been

violated in that manner, I was scared to turn myself in to this agency.” Appellant’s

older sister also testified, and both she and appellant asked for leniency based

primarily on his difficult youth, growing up in the foster care system.

The trial judge found that appellant had violated the condition that he report

to serve his sentences, revoked his community service, and adjudicated him guilty.

The judge spoke to appellant at the close of the hearing and expressed frustration

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that appellant exhibited no concern “about what the State or what society wants.”

Nevertheless, the judge told him:

I was going to sentence you to ten years. I do understand that you have
a history here and I do understand that perhaps you can be rehabilitated,
and so, I’m going to give you a chance to do that. I’m going to sentence
you to five years in Texas Department of Corrections.

This appeal followed.

Discussion

In his single appellate issue, appellant contends the trial court abused its

discretion by refusing to continue him on community supervision and by imposing

a five-year sentence following adjudication of his guilt. Appellant does not argue

that the trial court violated any legal rule in the revocation or adjudication process.

The State’s burden was to prove a violation of appellant’s conditions of supervision

by a preponderance of the evidence. See Rickels v. State, 202 S.W.3d 759, 763 (Tex.

Crim. App. 2006). Appellant acknowledged in his testimony that he failed to appear

to start his sentence on the appointed date, which was a condition of his supervision.

Violation of one condition is sufficient to support revocation. Dansby v. State, 468

S.W.3d 225, 231 (Tex. App.—Dallas 2015, no pet.).

Appellant recognizes that the decision to revoke community supervision after

a violation is proved falls within the discretion of the trial court. Rickels, 202 S.W.3d

at 763; see also State v. Waters, 560 S.W.3d 651, 661 (Tex. Crim. App. 2018) (trial

court has wide discretion to modify, revoke, or continue probation after finding

violation). His complaint, therefore, is that the trial court failed to exercise its
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discretion more leniently in his favor. In this case, however, appellant had already

been continued on community supervision three times following hearings on

petitions to adjudicate his guilt. And while he was on community supervision for

this offense he was charged with committing a number of additional violent offenses.

The purposes of community supervision are: to protect or restore the

community; to protect or restore the victim; or to punish, rehabilitate, or reform the

defendant. TEX. CODE CRIM. PROC. art. 42A.301(a). In this case, the trial court could

reasonably conclude after six years that appellant’s community supervision was not

protecting his victim or the community and was not rehabilitating or reforming

appellant.

That said, it is clear the court did take into account the testimony concerning

appellant’s circumstances. After revoking appellant’s community service and

adjudicating him guilty, the judge acknowledged appellant’s “history,” and reduced

the sentence he had intended to impose from ten years to five years. The judge could

reasonably have concluded that incarceration—rather than community

supervision—would assist appellant in that rehabilitation. We conclude the trial

court acted within its discretion in refusing to continue appellant on community

supervision, in revoking his supervision, and in adjudicating his guilt.

Appellant also complains that the trial court’s imposition of a five-year

sentence was excessive. The Court of Criminal Appeals has described the trial

court’s discretion to impose any sentence within the prescribed range as essentially

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unfettered. Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006).

Likewise, that court has held that a sentence within the statutory range of punishment

is not excessive and will not be disturbed on appeal. See Ware v. State, No. 05-22-

00302-CR, 2023 WL 1431422, at *1 (Tex. App.—Dallas Feb. 1, 2023, no pet.)

(mem. op., not designated for publication) (citing State v. Simpson, 488 S.W.3d 318,

323 (Tex. Crim. App. 2016)). Appellant was charged with a second degree felony,

which carries a sentencing range of two to twenty years’ imprisonment. TEX. PENAL

CODE ANN. § 12.33(a). The trial court’s sentence is not only within that range, it is

on the lower end of that range. We are assured, therefore, that the trial court

considered appellant’s mitigating evidence. See Gonzalez v. State, No. 05-02-01716-

CR, 2003 WL 22072692, at *1 (Tex. App.—Dallas Sept. 8, 2003, no pet.) (not

designated for publication) (trial court clearly considered mitigating evidence

because sentence assessed was less than maximum allowable for the offense).

Appellant relies on article 42A.755, which provides that, following

revocation:

if the judge determines that the best interests of society and the
defendant would be served by a shorter term of confinement, [the judge
may] reduce the term of confinement originally assessed to any term of
confinement not less than the minimum prescribed for the offense of
which the defendant was convicted.

CRIM. PROC. art. 42A.755(a)(2). In this case, appellant’s plea agreement provided

for a sentence of seven years’ confinement. Thus, his five-year sentence already

represents a reduction from the initial assessment. After considering both appellant’s

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testimony and the record of his conduct while on community supervision, we cannot

say that the trial court abused its discretion by not reducing appellant’s sentence even

further.

We overrule appellant’s single issue on appeal.

Conclusion

We affirm the trial court’s judgment.

/Bill Pedersen, III/
BILL PEDERSEN, III
Do Not Publish JUSTICE
TEX. R. APP. P. 47
230557F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JOSHUA MAPHAI RUSHING, On Appeal from the 401st Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 401-81554-
No. 05-23-00557-CR V. 2017.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Pedersen, III. Justices Partida-
Kipness and Garcia participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered May 29, 2024.

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