Opinion
No. 10-05-00388-CR
Opinion delivered and filed September 20, 2006. DO NOT PUBLISH.
Appeal from the 232nd District Court, Harris County, Texas, Trial Court No. 915637. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
The trial court placed Williams on deferred-adjudication community supervision for aggravated sexual assault of a child. See Act of May 28, 1999, 76th Leg., R.S., ch. 417, § 1, 1999 Tex. Gen. Laws 2752, 2752-53 (amended 2001, 2003) (current version at TEX. PENAL CODE ANN. § 22.021(a) (Vernon Supp. 2006)). Williams appeals his sentence after adjudication of guilt and revocation of his community supervision. In Williams's first issue, he contends that the sentence was cruel or unusual. See U.S. CONST. amend. VIII; id. amend. XIV. "As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court. . . ." TEX. R. APP. P. 33.1(a). "An appellant who fails to complain in the trial court that a sentence is cruel and unusual forfeits the issue on appeal." Gravens v. State, No. 10-05-00019-CR, 2006 Tex. App. LEXIS 1085, at *8 (Tex.App.-Waco Feb. 8, 2006, no pet.) (not designated for publication) (mem. op.); accord Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996) (plurality op.); see Mendez v. State, 138 S.W.3d 334, 339 (Tex.Crim.App. 2004). Williams does not point to a cruel-or-unusual-punishment complaint in the trial court. Williams forfeited his cruel-or-unusual-punishment issue. We overrule Williams's first issue. In Williams's second issue, he contends that the trial court's denial of Williams's request for community supervision constituted a deprivation of due course of law. See TEX. CONST. art. I, § 19. "The decision whether to grant probation is wholly discretionary and nonreviewable." Speth v. State, 6 S.W.3d 530, 533 (Tex.Crim.App. 1999); accord Baker v. State, 151 Tex. Crim. 454, 454-55, 209 S.W.2d 769, 769-70 (1948). We overrule Williams's second issue. In Williams's third issue, he contends that the evidence of his identity at the hearing on the motion to adjudicate his guilt was insufficient. "No appeal may be taken from th[e] determination" "by the court of whether it proceeds with an adjudication of guilt on the original charge." Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2006). "[T]he courts of appeals do not have jurisdiction to consider claims relating to the trial court's determination to proceed with an adjudication of guilt on the original charge." Davis v. State, 195 S.W.3d 708, 710 (Tex.Crim.App. 2006) (quoting Hogans v. State, 176 S.W.3d 829, 832 (Tex.Crim.App. 2005)); accord Green v. State, No. 10-02-00281-CR, 2004 Tex. App. LEXIS 3564, at *1 (Tex.App.-Waco Apr. 21, 2004, pet. dism'd) (mem. op.) (sufficiency of the evidence). We lack jurisdiction over an attempted appeal of the sufficiency of the evidence of the identity of a defendant at a hearing adjudicating guilt after deferred-adjudication community supervision. We overrule Williams's third issue. Having overruled Williams's issues, we affirm.
In any case, as Williams concedes, he signed a stipulation of evidence as to his identity. Williams argues only that the State did not call a fingerprint expert or Williams's community-supervision supervisor to testify as to Williams's identity.