Roderick Termaine McAdams v. The State of Texas--Appeal from 265th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-00-031-CR

RODERICK TERMAINE McADAMS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 265th District Court

Dallas County, Texas

Trial Court # F99-52644-LR

O P I N I O N

Appellant McAdams appeals his conviction for possession of cocaine with intent to deliver, enhanced by one prior felony conviction, for which he was sentenced to 45 years in the Texas Department of Criminal Justice, Institutional Division.

Appellant entered an open non-negotiated guilty plea to possession with intent to deliver cocaine (one gram or more but less than four grams), enhanced by one prior felony. Appellant waived the right to a jury, plead guilty to the cocaine charge and true to the enhancement. The trial court deferred adjudication of guilt and placed appellant on deferred adjudication probation. One condition of his probation was that he attend the CENIKOR drug treatment program. Appellant left the program after one day. The State filed a motion to revoke his probation. One week later the trial court granted the State s motion to revoke probation and adjudicate, found appellant guilty and sentenced him to 45 years in prison.

By new counsel, appellant appeals on five issues.

Issue 1 asserts that appellant s plea of guilty was involuntary.

Appellant argues that he requested placement in the CENIKOR program without realizing that it was a strict three year program. He testified that his grandmother and uncle forced him to request treatment at CENIKOR; that he did not realize it was so strict; that he now wanted the court to place him in the SAFP (Substance Abuse Felony Program). The trial court revoked his probation, adjudicated guilt and sentenced him to 45 years in prison.

A defendant must appeal the voluntariness of his guilty plea at the time he is placed on deferred adjudication probation, and cannot wait until he is adjudicated to bring this issue.

On appeal from adjudication of guilt following deferred adjudication, the court of appeals lacks jurisdiction to hear a complaint that a defendant s original non-negotiated guilty plea was not freely and voluntarily entered into where the defendant did not appeal the original order placing him on deferred adjudication probation. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999); Clark v. State, 997 S.W.2d 365, 368 (Tex. App. Dallas 1999, no pet.).

Issue 1 is dismissed for lack of jurisdiction.

Issue 2 asserts appellant received ineffective assistance of counsel at the adjudication hearing.

Issue 3 asserts the record fails to reflect that defense counsel was given the required 10 days to prepare for this proceeding or that appellant waived the 10 day preparation period.

There is no Constitutional right to appellate review of a criminal conviction. Phynes v. State, 828 S.W. 1, 2 (Tex. Crim. App. 1992). A party may appeal only that which the Legislature has authorized. Olowosuko v. State, 826 S.W.2d 940, 941 (Tex. Crim. App. 1992).

A defendant may appeal at the time he is placed on deferred adjudication probation. There is, however, no appeal from the court s determination to proceed to an adjudication of guilt on the original charge following a violation of a condition of defendants deferred adjudication probation. Tex. Code Crim. Proc. art. 42.12 5(b). // Olowosuko, supra p. 942; Elizondo v. State, 861 S.W.2d 294, 295 (Tex. App. San Antonio 1993, no pet.).

The trial court has absolute discretion to adjudicate guilt and its discretion is not reviewable. Connolly v. State, 983 S.W.2d 738, 740 (Tex. Crim. App. 1999).

Issues 2 and 3 are dismissed for lack of jurisdiction.

Issue 4 contends appellant s 45 year sentence is grossly disproportionate to the crime and violates his constitutional rights under the U.S. Constitution Amendment VIII.

Issue 5 contends appellant sentence is grossly disproportionate to his crime and violates the Texas Constitution Article I, Section 13.

Amendment VIII of the U.S. Constitution prohibits the imposition of cruel and unusual punishment; Article I, Section 13 of the Texas Constitution prohibits the imposition of cruel or unusual punishment.

To preserve a sentencing error for review an appellant must object during the punishment phase of the trial or in a motion for new trial. Appellant did not object to his sentence at either time, and has thus failed to preserve his sentencing complaints for review. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Stevens v. State, 667 S.W.2d 534, 538 (Tex. Crim. App. 1984). Broxton, supra, holds that even constitutional errors may be waived by failure to object at trial.

Moreover, the punishment range for appellants offense, enhanced by a prior felony conviction is 5 to 99 years and a fine up to $10,000. It has been repeatedly held that a sentence is not cruel or unusual punishment under the Texas Constitution when the punishment assessed is within the Legislatively established range. Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Pugu v. State, 916 S.W.2d 547, 550 (Tex. App. San Antonio 1996, no pet.); Francis v. State, 877 S.W.2d 441, 444 (Tex. App. Austin 1994, pet. ref d.); Johnson v. State, 864 S.W.2d 708, 725 (Tex. App. Dallas 1993), aff d 912 S.W.2d (Tex. Crim. App. 1995).

Appellant s sentence of 45 years is in the lower one-half of the Legislatively established range.

Issues 4 and 5 are overruled.

The judgment of the trial court is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed August 23, 2000

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