Opinion
No. 06-07-00072-CR
Date Submitted: July 16, 2007.
Date Decided: July 17, 2007. DO NOT PUBLISH.
On Appeal from the 115th Judicial District Court Marion County, Texas, Trial Court No. F13,502.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
Alfonza Lewis Brown appeals the adjudication of his guilt for unauthorized use of a vehicle. See Tex. Penal Code Ann. § 31.07 (Vernon 2003). Pursuant to a plea agreement, Brown was placed on deferred adjudication community supervision November 22, 2004. The State filed a motion to proceed with the adjudication, and after a hearing on that motion, the trial court on November 9, 2006, adjudicated Brown guilty and imposed a sentence of two years' confinement in a state-jail facility. On appeal, Brown first contends the trial court abused its discretion in assessing a sentence disproportionate to the offense and the circumstances, citing Atchison v. State, 124 S.W.3d 755 (Tex.App.-Austin 2003, pet. ref'd), in addition to the Texas Constitution, the Texas Code of Criminal Procedure, and the Texas Penal Code. The only method available to attack the sentence assessed by a fact-finder is to argue that it exercised its discretion in such an unreasoning or unfair fashion to the effect that the punishment is grossly disproportionate when related to the offense. See Bradfield v. State, 42 S.W.3d 350, 352 (Tex.App.-Eastland 2001, pet. ref'd); Kanouse v. State, 958 S.W.2d 509, 510 (Tex.App.-Beaumont 1998, no pet.). As the punishment assessed was within the applicable statutory range, the issue as it may be presented is whether the punishment assessed was grossly disproportionate and thus unconstitutional. To preserve a disproportionality claim for appellate review, Brown must have presented to the trial court a timely request, objection, or motion that stated the specific grounds for the desired ruling, if not apparent from the context. See Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App. 1998); Nicholas v. State, 56 S.W.3d 760, 768 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (failure to complain to trial court about consecutive sentencing waived claim of error). No objection or motion in this case, either during the trial proceeding or in a motion for new trial, sets out any constitutional complaint. Thus, the claimed error has not been preserved for our review. We further note that, even if the contention had been preserved for review, there is no evidence in the record comparing the sentences imposed on persons in Texas with sentences imposed against defendants in other jurisdictions who committed a similar offense. Thus, the issue could not prevail in any event. See Mullins v. State, 208 S.W.3d 469, 470 (Tex.App.-Texarkana 2006, no pet.). In his second point of error, Brown contends that the judgment entered in the case does not correctly recite the plea entered by him to the State's motion to adjudicate and requests that the judgment be reformed. The State concedes in its brief that the judgment should be reformed to reflect that Brown pleaded "not true" to all six of the allegations in the State's motion to adjudicate. Therefore, we reform the judgment to indicate pleas of "not true" to all allegations contained in the motion to adjudicate. See Tex. R. App. P. 43.2; French v. State, 830 S.W.2d 607 (Tex.Crim.App. 1992). As reformed, we affirm the trial court's judgment.
Article 42.12, Section 5(b) of the Texas Code of Criminal Procedure prohibits an appeal of the trial court's decision to adjudicate guilt. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon 2006); Hargesheimer v. State, 182 S.W.3d 906, 912 (Tex.Crim.App. 2006). However, a defendant may appeal from other matters that occurred at the punishment proceeding other than the decision to adjudicate. The asserted error must directly and distinctly concern the second phase; the claim must, on its face, relate to the sentence imposed, not to the decision to adjudicate. Hogans v. State, 176 S.W.3d 829, 834 (Tex.Crim.App. 2005).
See Hyde v. State, 723 S.W.2d 754, 755 (Tex.App.-Texarkana 1986, no pet.), holding that we had no authority to review the reasonableness of punishments assessed by the juries and the trial courts of this State if within the range of punishment prescribed by statute for the offense, except under a disproportionality analysis.