Opinion
No. 13-03-00494-CR
Memorandum Opinion delivered and filed August 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 36th District Court of San Patricio County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
MEMORANDUM OPINION
On February 14, 1994, appellant, Oscar DeLeon, a/k/a Oscar Ozuna DeLeon, pleaded nolo contendere to the offense of aggravated possession of marihuana. The trial court: (1) found appellant guilty; (2) assessed his punishment at ten years imprisonment and a $1,500 fine; (3) suspended the prison sentence; and (4) placed him on community supervision for ten years. Later, the State filed a motion to revoke, alleging appellant had violated various conditions of his community supervision. Appellant pleaded "true" to all of the allegations in the motion. After an evidentiary hearing, the trial court found that appellant had violated the conditions of his community supervision, revoked his community supervision, and reassessed appellant's punishment at five years imprisonment. The trial court has certified that this is not a plea-bargain case, and the appellant has the right to appeal. See TEX. R. APP. P. 25.2(a)(2). In a single issue, appellant complains the trial court erred in sentencing him for a first-degree felony, when at the time of sentencing the offense was a second-degree felony, thus constituting cruel and unusual punishment. We affirm. As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. TEX. R. APP. P. 47.4. Appellant was required to raise any complaints regarding his sentence by an appeal after the trial court initially assessed and suspended the sentence in 1994. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23(b) (Vernon Supp. 2004) ("The right of the defendant to appeal for a review of the conviction and punishment, as provided by law, shall be accorded the defendant at the time he is placed on community supervision. When he is notified that his community supervision is revoked for violation of the conditions of community supervision and he is called on to serve a sentence in a jail or in the institutional division of the Texas Department of Criminal Justice, he may appeal the revocation."). However, appellant failed to appeal then, and any challenge now to the sentence imposed at that time is untimely. As a consequence, he now may challenge his sentence only if it was outside the maximum range of punishment, which would be unauthorized by law and therefore illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003).
See Act of May 30, 1983, 68th Leg., R.S., ch. 425, § 4.051, 1983 Tex. Gen. Laws 2388 (amended 1993) (current version at TEX. HEALTH SAFETY CODE ANN. § 481.121(b)(5) (Vernon 2003)).