Sompract, Ronald Anthony v. The State of Texas--Appeal from 174th District Court of Harris County

Affirmed and Memorandum Opinion filed February 13, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00271-CR

____________

RONALD ANTHONY SOMPRACT, Appellant

V.

THE STATE OF TEXAS, Appellee

____________________________________________________

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 718,558

____________________________________________________

M E M O R A N D U M O P I N I O N

  Appellant pleaded guilty to the offense of sexual assault of a child, and the trial court assessed seven years deferred adjudication. Five years later, the State moved to revoke appellant s deferred adjudication probation and to adjudicate guilt. The trial court found appellant guilty and assessed punishment at seven years confinement in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant complains that the trial court: (1) committed fundamental error in the original proceeding; and (2) imposed a cruel and unusual punishment. We affirm.

I. Factual and Procedural Background

  Appellant pleaded guilty to sexually assaulting a child and received seven years deferred adjudication. One of the conditions of deferred adjudication required appellant to permit a probation officer to visit him at home. During the deferred adjudication period, appellant chained two large dogs to the front of his house. The threatening dogs effectively kept probation officers from visiting appellant s home. As a result, the probation officers could not determine whether appellant was complying with the other conditions of his deferred adjudication. The trial court found appellant violated his deferred adjudication requirements and sentenced him to seven years incarceration.

II. Issues

Appellant raises six points of error. Combined in his first two issues, appellant contends, under the Texas and United States Constitutions, the trial court fundamentally erred by failing to include evidence of his guilt in the record of the original proceeding. In appellant s next two issues, he complains the trial court committed fundamental error in proceeding to a judgment of guilt when the record is silent whether appellant waived his rights to compulsory process. In his last two issues, appellant asserts his seven-year sentence constitutes cruel and unusual punishment under the Texas and United States Constitutions.

III. Analysis And Discussion

A. Alleged Error in Original Trial Court Proceeding

In appellant s first four issues, he argues the trial court fundamentally erred in accepting his guilty plea to the sexual assault of a child. The Texas Court of Criminal Appeals has held that a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed. Manuel v. State, 994 S.W.2d 658, 661 62 (Tex. Crim. App. 1999). Once a trial court revokes deferred adjudication, an appellant may not raise the issue of the voluntariness of his plea. Daniels v. State, 30 S.W.3d 407, 408 (Tex. Crim. App. 2000). But if the original judgment is void, the general rule does not apply. Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001). A judgment is void if: (1) the purported charging instrument does not satisfy constitutional requirements; (2) the trial court lacks subject matter jurisdiction; (3) the record reflects no evidence to support the conviction; or (4) without waiving his right to counsel, an indigent defendant faces proceedings without counsel. Id. Although a judgment is void if no evidence supports the conviction, the record must leave no question about the existence of such a fundamental defect. Id. at 669. The defect must be one that can be ascertained from the record with little difficulty. Id. Even an absent reporter s record does not establish that no evidence exists for a guilty plea. Id.

We have no reporter s record from the hearing at which appellant pleaded guilty. Consequently, we cannot determine what evidence, if any, was offered in support of appellant s guilt. See Tex. Code Crim. P. 1.15 (stating the State must introduce evidence in the record showing the guilt of the defendant even with a guilty plea). But a lack of evidence does not conclusively show a void judgment. Because the clerk s record contains appellant s waiver of constitutional rights and guilty plea, we will not hold appellant s original judgment void. Additionally, appellant was required to appeal the waiver of his compulsory process complaint at the time the trial court placed him on deferred adjudication. See Manuel, 994 S.W.2d at 661 62. He did not do so. Appellant may not raise his complaint now. For these two reasons, we dismiss appellant s first four issues for lack of jurisdiction.

B. Alleged Cruel and Unusual Punishment

In addressing appellant s argument that his seven-year sentence constituted cruel and unusual punishment, we begin by making the important observation that in order to voice such a complaint on appeal, a defendant must assert the objection in the trial court.

Appellant did not assert that his sentence violated his constitutional rights at the time the sentence was assessed, nor did appellant raise this issue in a post-trial motion. By failing to assert his complaint in the trial court, appellant failed to preserve this issue for appeal. See Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App. Houston [14th Dist.] 2001, pet. ref d). Because this is not the type of error that can be asserted the first time on appeal, appellant has waived any possible error. See Saldano v. State, 70 S.W.3d 873, 887 90 (Tex. Crim. App. 2002).

But even if appellant had not waived his complaint, his argument would have no merit because the imposition of a sentence within the statutory limits is not cruel and unusual punishment. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); see also Jacobs v. State, 80 S.W.3d 631, 632 633 (Tex. App. Tyler 2002, no pet.). Tex. R. App. P. 33.1. The legislature has the power to define crimes and assess punishment. See Jacobs, 80 S.W.3d at 633. Punishment that falls within the statutory guidelines is not excessive. See id.; see also Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). As long as the punishment assessed by the judge or jury was within the limits prescribed by the statute the punishment is not cruel and unusual within the constitutional prohibition. Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); see also Servin v. State, 745 S.W.2d 40, 41 42 (Tex. App. Houston [14th Dist.] 1987, no writ).

Appellant pleaded guilty to sexual assault of a child, a second degree felony. See Tex. Pen. Code 22.011. The statutory limitations for punishment for a second degree felony are anywhere from two years to twenty years in prison. See Tex. Pen. Code 12.33(a). The trial court assessed appellant s punishment at seven years deferred adjudication, a sentence within the statutory limits. See Tex. Pen. Code 12.33(a); see also Harris, 656 S.W.2d at 486. Therefore, appellant s punishment is not prohibited as cruel, unusual, or excessive.

In conclusion, we dismiss appellant s first four issues for lack of jurisdiction and overrule his last two issues. The judgment is affirmed.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed February 13, 2003.

Panel consists of Chief Justice Brister, and Justices Hudson and Frost.

Do Not Publish Tex. R. App. P. 47.2(b).