Opinion
No. 05-03-00989-CR.
Opinion Filed March 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F96-40494-KI. Affirmed.
Before Justices WHITTINGTON, LANG, and LANG-MIERS.
MEMORANDUM OPINION
David Clay Parramore entered a non-negotiated nolo contendere plea to the offense of aggravated sexual assault of child under fourteen years of age. The trial court deferred adjudicating guilt, placed appellant on ten years community supervision, and assessed a $1000 fine. The State later moved to adjudicate guilt, alleging appellant violated three conditions of community supervision. Following a hearing, the trial court adjudicated appellant guilty and sentenced him to twenty years confinement. Appellant raises three issues, claiming the trial court abused its discretion in adjudicating him guilty and that the twenty-year sentence is disproportionate to the crime. We affirm. In his first issue, appellant complains the trial court abused its discretion in adjudicating guilt because appellant was making progress in his treatment and was continuing to work through his sex offender issues. The State responds that the decision to adjudicate guilt is not reviewable. We agree with the State. No appeal may be taken from the trial court's determination to adjudicate guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). Accordingly, we dismiss appellant's first issue. Appellant's second and third issues challenge the constitutionality of the twenty-year sentence. Appellant argues the sentence is disproportionate to the offense in violation of the United States and Texas Constitutions. The State argues appellant has not preserved his complaints and the sentence is not cruel and unusual. Again, we agree with the State. Appellant did not raise his disproportionality complaints at the time the trial court sentenced him, nor did he raise them in a motion for new trial. Therefore, the complaints have not been preserved for appellate review. See Tex.R.App.P. 33.1; Castaneda v. State, 2003 WL 21463920, at *3 (Tex. App.-Dallas 2003, no pet.) (citing Rhoades v. State, 934 S.W.2d 113, 121 (Tex.Crim.App. 1996)). Moreover, appellant's twenty-year sentence falls towards the lower end of the five to ninety-year or life punishment range available for the offense. See Tex. Pen. Code Ann. §§ 12.32, 22.021 (Vernon 2003 Supp. 2004). Punishment assessed within the statutory range is not unconstitutionally cruel and unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd) (op. on remand). We overrule appellant's second and third issues. We affirm the trial court's judgment.
The trial court's rule 25.2(d) certification states that this case involved a plea bargain and that appellant waived his right to appeal. The record does not support the certification. Although the order deferring adjudication of guilt reflects terms of a plea bargain agreement, the reporter's record from the plea hearings reflect appellant entered an "open" plea. Moreover, there was no agreement as to punishment at the adjudication hearing, nor does the record contain any written or oral waivers of appellant's right to appeal. In fact, "N/A" is marked next to the waiver of the right to appeal paragraph on the admonishment form from the May 30, 2003 adjudication hearing. Therefore, we conclude the certification is incorrect and will address appellant's complaints.