Opinion filed July 21, 2011



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 10

- 00101

- CR

__________ MARLON WAGNER , A ppellant

V.

STATE OF TEXAS , A ppellee

On Appeal from the 3rd District Court

Anderson County, Texas

Trial Court Cause No. 23650

M E M O R A N D U M O P I N I O N This is an appeal from a judgment adjudicating appellant’s guilt. On April 25, 1995,

a ppellant pleaded guilty to the offense of aggravated robbery with a deadly weapon. Pursuant to a plea bargain, the trial court deferred adjudication of appellant’s guilt and placed appellant on probation for ten years. The State subsequently filed a motion to adjudicate. On December 5, 1997, t he trial court revoked appellant’s deferred adjudication probation, convicted appellant of the offense of aggravated robbery with a deadly weapon, and assessed punishment at
confinement for thirty

- five years. T rial counsel faile d to timely file a notice of appeal, but the2

Court of Criminal Appeals found that a ppellant was entitled to the opportunity to file an out

- of

time appeal , which we now address

. Ex Parte Wagner , No. AP

- 76287, 2010 WL 465722 (Tex. Crim. App. Feb

. 10, 2010). We affirm. We note that the hearing on the State’s motion to adjudicate was conducted prior to the June 15, 2007 effective date of the amendment to T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.12, § 5(b) (Vernon Supp. 2010 )
, allowing an appeal from a determination to adjudicat e. Therefore, former
T EX

. C ODE C RIM

. P ROC

. art

. 42.12, § 5(b) (2005) and its prohibition concerning appeals from a determination to proceed with the adjudication of guilt apply. 1 Davis v. State , 195 S.W.3d 708, 709 (Tex. Crim. App. 2006); Hargesheimer v. State , 182 S.W.3d 906, 909 (Tex. Crim. App. 2006); Hogans v. State , 176 S.W.3d 829, 831 (Tex. Crim. App. 2005); Phynes v. State , 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Olowosuko v. State , 826 S.W.2d 940, 942 (Tex. Crim. App. 1992). F ormer A rticle 42.12, section 5(b) , however, does permit an appeal from the trial court’s

assessment of punishment following a determination to proceed with an adjudicat ion of guilt. Kirtley v. State , 56 S.W.3d 48, 51 (Tex. Crim. App. 2001); see also Phynes , 828 S.W.2d at 1 n .1. In his first issue, appellant argues that his punishment was excessive and grossly disproportionate to the offense under both the United States and Texas constitutions

. Wagner
did not raise these claims i n the trial court. Therefore, his first issue has not been preserved for
review. See T EX

. R. A PP

. P. 33.1; Rhoades v. State , 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding cruel and unusual punishment argument under Texas constitution was waived when appellant failed to object at tri al); Curry v. State , 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (holding cruel and unusual punishment argument under United States Constitution was waived when appellant never objected on those grounds at trial).
Even if the issue had been preserved for review
, appellant has not demonstrated that the punishment was excessive and grossly disproportionate. The E ighth A mendment prohibits punishment that is grossly disproportionate to the offense for which a defendant has been
convicted. Harmelin v. Michiga n , 501 U.S. 957, 1001 (1991); McGruder v. Puckett , 954 F.2d

1 Former Article 42.12, section 5(b) provided:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proce eds with an adjudication of guilt on the original charge. No appeal may be taken from this determination (emphasis added).3

313, 317 (5 th Cir. 1992). The reviewing court must first compare the gravity of the offense with the severity of the sentence. Harmelin , 501 U.S. at 1001; McGruder , 954 F.2d at 317. A ppellant

p leaded guilty to aggravated robbery with a deadly weapon, a first degree felony punishable by a term of imprisonment of not more than ninety

- nine years or less than five years. T EX

. P ENAL C ODE A NN

. §§ 12.32(a), 29.03(b) (Vernon 2011 )

. T he trial court ass essed punishment at
confinement for thirty

- five years. A penalty assessed within the range of punishment established by the legislature generally will not be disturbed on appeal. Jackson v. State , 680 S.W.2d 809 (Tex. Crim. App. 1984). Appellant’s first issue is overruled. In his second issue, appell ant argues that it was error for the trial court to adjudicate his guilt. In particular, appellant contends that the trial court used a probable cause or reasonable

su spicion standard in finding true the allegation that appellant had been in possession of a
controlled substance. B ecause t he law applicable to this case prohibits an appeal from a determination to proceed with an adjudication of guilt, we lack jur isdiction to review this issue. Phynes , 828 S.W.2d at 2. A ppellant’ s second issue is dismissed

. The judgment of the trial court is affirmed.

PER CURIAM

July 21, 2011 Do not publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Hil l, J. 2

2 John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.