Scott Alan Sereika v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-24-00023-CR
No. 10-24-00024-CR
No. 10-24-00025-CR
No. 10-24-00026-CR
No. 10-24-00033-CR

SCOTT ALAN SEREIKA,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 443rd District Court
Ellis County, Texas
Trial Court Nos. 40305CR, 40944CR, 40945CR, 40946CR, and 40947CR

MEMORANDUM OPINION

After a contested revocation hearing, the trial court revoked Scott Alan Sereika’s

community supervision in each of the underlying cases and sentenced him to 8 years in

prison in each case, to run concurrently. On appeal, Sereika argues that the trial court

abused its discretion in revoking his community supervision in the underlying cases and
that his sentences were grossly disproportionate in violation of the United States and

Texas Constitutions. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. We disagree.

Revocation of Community Supervision

In his first issue, Sereika asserts that the trial court abused its discretion by

revoking his probation in each case because he provided reasonable excuses for missed

appointments and drug tests, and because “Sereika attained the goals a court wants to

see from those on probation although not as timely as the court wished.”

STANDARD OF REVIEW AND APPLICABLE LAW

We review a trial court’s decision to revoke community supervision for an abuse

of discretion. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). To justify

revocation, the State must prove by a preponderance of the evidence that the defendant

violated a term or condition of community supervision. Id. at 864-65. In this context, “’a

preponderance of the evidence’ means ‘that greater weight of the credible evidence which

would create a reasonable belief that the defendant has violated a condition of his

probation.’” Id. at 865 (quoting Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App.

2006)). The trial court is the sole judge of the credibility of the witnesses and the weight

to be given their testimony. Id. Thus, we review the evidence in the light most favorable

to the trial court’s ruling. See id.

Sereika v. State Page 2
DISCUSSION

Pursuant to a plea agreement, on March 1, 2018, Sereika pled guilty in each of the

underlying cases to third-degree-felony prescription fraud and was placed on

community supervision in each case for a period of 10 years. See TEX. HEALTH & SAFETY

CODE ANN. § 481.129. The State filed a motion to revoke Sereika’s community supervision

in each case on January 25, 2023. All of the revocation motions alleged that Sereika

violated the terms of his community supervision by failing to report to the community

supervision department as scheduled on seven occasions, failing to report for required

drug testing on six occasions, and failing to complete substance abuse evaluation

requirements and recommendations.1 Sereika pled “not true” to these allegations. In

1 The revocation motions alleged that Sereika violated the terms of his community supervision as follows:

(4) (Report to the Community Supervision Department as directed by the Court or the
Supervision Officer and obey all rules and regulations of said department;) in that the said
defendant failed to report for the months of December 18, 2018, January 22, 2019, July 2,
2019, August 13, 2019, May 4, 2020, September 14, 2020, and May 11, 2022,

(13) (Submit to testing for drugs and alcohol as directed. Submit to any type of test
requested by the community supervision department supervising your case not limited to
urine, hair, buccal swab, sweat, and/or breath at your own expense;) in that the said
defendant failed to report for testing as requested by the supervision officer on November
26, 2018, December 14, 2018, January 2, 2019, January 23, 2019, February 11, 2019,and June
17, 2019, [some of the revocation motions also alleged in this section that Sereika was
delinquent in paying for some of his drug tests],

(15) (Submit to a substance abuse evaluation within 60 days and comply with any
recommendations made by said evaluation;) in that the said defendant failed to complete
IOP and MRT as recommended from Substance Abuse Evaluation,

(A2) (Complete the general Substance Abuse Evaluation requirements of Condition #15
and comply with any and all recommendations therein, including, but not limited to,
attending 12 step support group meetings as directed by your counselor and/or

Sereika v. State Page 3
trial court cause number 40944CR, the State included an additional allegation that Sereika

failed to make scheduled payments to the probation department and was delinquent in

the amount of $4,487.00.2 Sereika pled “true with…with some extenuating

circumstances” to this allegation.

Sufficient proof of a single violation will support a revocation of community

supervision. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012). Sereika’s probation

officer, Celeste Jernigan, testified at the contested revocation hearing. Jernigan testified

that Sereika failed to properly report to his community supervision officer and failed to

submit to required drug testing on each of the dates listed in the revocation motions.

Sereika also testified at the revocation hearing. Sereika did not deny missing scheduled

appointments and drug tests; rather, he explained that his missed appointments and drug

tests were for health reasons, family reasons, and emergencies. He admitted that he

supervision officer, calling random drug/alcohol testing line if instructed, and obtaining a
sponsor and working a recovery program.) in that the said defendant failed to complete
the general substance abuse evaluation requirements of Condition #15[.]

2 This additional allegation states:

(10) (Make payments to the Ellis County Community Supervision and Corrections
Department as follows: (a) Court Costs $279.00 (b) Restitution $0 (c) Attorney Fee $0 (d)
Fine $0 (e) Collection Fee $25.00 (f) Crime Stoppers $0 (g) DA Forgery Fee $0 (h) Family
Violence $0 (i) Children Advocacy Center $0 (j) Interpreter Fee $0 (k) Other $0, by making
monthly payments in the amount of $100.00 per month beginning in the month next
following entry of this order, or next following your release from jail, and continuing until
all court-ordered obligations are paid in full. The defendant acknowledges that he or she
possesses the financial means and ability to make payments in accordance with this
schedule;) in that the said defendant failed to make payments as directed and is currently
delinquent in the amount of $4,487.00[.]

Sereika v. State Page 4
“made several mistakes” in missing scheduled appointments, but explained that he

would always try to rectify the situation.

Jernigan also explained that after Sereika was released from a detox program in

2018, he was required to complete a 26-week Intensive Outpatient Program (“IOP”).

Though Sereika was given multiple opportunities to complete the program over the

course of several years, he failed to successfully complete it. In compromise, in June of

2022, the probation department reached an agreement with Sereika that he would receive

credit for his IOP program if he completed a 15-week Moral Reconation Therapy (“MRT”)

program. Sereika enrolled in the MRT program but was unsuccessfully discharged for

failure to attend. He did not complete the MRT program until approximately November

of 2023, several months after the State filed its revocation motions. Sereika admitted

during the contested hearing that his failure to timely complete the class was

“[a]bsolutely 100 percent my fault,” though he attributed his untimely completion to

scheduling conflicts, extenuating circumstances, or financial concerns.

The trial court, as sole judge of the credibility of the witnesses and the weight to

be given their testimony, was free to disbelieve Sereika’s explanations and excuses for his

missed appointments, missed drug tests, and untimely completion of required treatment

programs. In reviewing the record, we conclude that the trial court did not abuse its

discretion in revoking Sereika’s probation in each of the underlying cases.

Accordingly, Sereika’s first issue in each of these appeals is overruled.

Sereika v. State Page 5
Grossly Disproportionate Sentence Complaints

In his second and third issues, Sereika contends that his sentences were “grossly

disproportionate to the crime and inappropriate to the offender” in violation of the Eighth

Amendment to the United States Constitution and article I, section 13 of the Texas

Constitution. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13.

A disproportionate-sentence claim must be preserved for appellate review. See

TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)

(noting that constitutional rights, including the right to be free from cruel and unusual

punishment, may be waived); see also Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d) (“[I]n order to preserve for appellate review a

complaint that a sentence is grossly disproportionate, constituting cruel and unusual

punishment, a defendant must present to the trial court a timely request, objection, or

motion stating the specific grounds for the ruling desired.”).

Sereika did not assert his disproportionate-sentence claims when the trial court

orally pronounced his sentences at the revocation hearing. When asked by the trial court

if there was any legal reason why sentence should not be imposed, defense counsel only

requested some additional time for Sereika to get his affairs in order before serving his

sentences. Furthermore, Sereika did not raise a disproportionate-sentence claim in a

motion for new trial or otherwise present a post-trial objection to the imposed sentences.

Sereika v. State Page 6
Therefore, we conclude that Sereika did not preserve his disproportionate-sentence

complaints for review.

Accordingly, Sereika’s second and third issues in each of these appeals is

overruled.

Conclusion

Having overruled all of Sereika’s issues in each of these appeals, we affirm the trial

court’s judgments in each case.

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed August 29, 2024
[CR25]

Sereika v. State Page 7