Summary
Declining to address complaint that the trial court "violated [Moore's] due process rights by proceeding to an adjudication of guilt . . . based upon allegations concerning conduct that occurred before [he] was even placed on probation."
Summary of this case from Smith v. StateOpinion
No. 05-05-01389-CR
Opinion issued July 11, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-55296-MU. Affirmed.
Before Justices MORRIS, O'NEILL, and MAZZANT.
MEMORANDUM OPINION
In this case, Jeremy LeNoy Moore pleaded guilty to aggravated assault with a deadly weapon. Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on eight year's community supervision, and assessed a $2000 fine. The State later moved to proceed with adjudication of guilt, alleging appellant violated the terms of his community supervision. Following a hearing, the trial court adjudicated appellant guilty and sentenced him to twenty years' imprisonment. In three issues, appellant contends the trial court violated his due process rights and the sentence constitutes cruel and unusual punishment. We affirm. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. In his first issue, appellant argues the trial court violated his due process rights by proceeding to an adjudication of guilt and assessing punishment based upon allegations concerning conduct that occurred before appellant was even placed on probation. In his second issue, appellant argues he was denied due process at the hearing on the motion to proceed with adjudication of guilt because the case was not heard before a neutral hearing body. The majority of appellant's claims challenge the trial court's decision to adjudicate guilt. Such complaints are not permitted. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2005); Hogans v. State, 176 S.W.3d 829, 834 (Tex.Crim.App. 2005). Moreover, to the extent appellant also challenges the sentencing procedure following adjudication of his guilt, he has waived his complaints by failing to raise an objection at trial. We resolve appellant's first and second issue against him. In his third issue, appellant contends the trial court erred in assessing a sentence that was grossly disproportionate to the offense, violating both the federal and state constitutional prohibitions against cruel and unusual punishment. See U.S. Const. Amend. VIII, XIV; Tex. Const. Art. I § 13. Appellant also argues the trial court based the sentence on the grounds for adjudication rather than on the facts of the offense. Nothing in the record shows that similarly situated defendants received lesser sentences. See King v. State, 953 S.W.2d 266, 274 (Tex.Crim.App. 1997). Moreover, appellant was convicted of aggravated assault with a deadly weapon, a second-degree felony. See Tex. Pen. Code Ann. § 12.33 (Vernon 2003). The punishment range for a second-degree felony is imprisonment for any term between two and twenty years and an optional fine up to $10,000. See Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2005). And evidence of prior criminal or delinquent history is relevant to sentencing. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2005). Nothing in the record shows the trial court sentenced appellant on the basis of improper grounds. We resolve appellant's third issue against him. We affirm the trial court's judgment.