Daniel Ray Corley v. The State of Texas--Appeal from 184th District Court of Harris County

11th Court of Appeals

Eastland, Texas

Opinion

Daniel Ray Corley

Appellant

Vs. No. 11-02-00055-CR B Appeal from Harris County

State of Texas

Appellee

This is an appeal from an adjudication of guilt. Appellant pleaded guilty on October 5, 1999, to the offense of assault on a public servant. The trial court deferred the adjudication of guilt and placed appellant on community supervision for 6 years and assessed a fine of $500. On October 17, 2001, the State filed a motion to adjudicate guilt. Appellant pleaded not true to the allegations in the motion to adjudicate guilt. The trial court found the allegations to be true and sentenced appellant to 6 years confinement. We affirm.

Appellant raises three points of error. First, appellant asserts that there was insufficient evidence presented by the State at the hearing on the motion to adjudicate to prove that appellant was the same person who was placed on community supervision.

TEX. CODE CRIM. PRO. ANN. art. 42.12 (Vernon Supp. 2003) controls the procedures for deferred adjudication. Specifically, Article 42.12, section 5(b) provides that there shall be no appeal taken from the trial court=s determination to adjudicate. Since appellant=s first point of error is actually a sufficiency of the evidence argument, it is an appeal of the trial court=s determination of guilt and, therefore, cannot be reviewed by this court. See Phynes v. State, 828 S.W.2d 1 (Tex.Cr.App.1992). Appellant=s first point of error is overruled.

Appellant next asserts a violation of his due process rights under TEX. CONST. art. I, ' 19 alleging that the trial court abused its discretion in failing to reinstate his community supervision and in imposing an excessive term of 6 years imprisonment. Appellant also claims that 6 years punishment is a violation of his right to be free from cruel and unusual punishment under U.S. CONST. amends. VIII & XIV. Both of these challenges fail.

This court reviews the trial court=s assessment of punishment under an abuse of discretion standard. Jackson v. State, 680 S.W.2d 809 (Tex.Cr.App.1984). Due process mandates that a neutral judicial officer consider the full range of punishment and the mitigating evidence. Salinas v. State, 9 S.W.3d 338 (Tex.App. B San Antonio 1999, no pet=n). Punishment assessed within the range established by the legislature will not be disturbed on appeal. Flores v. State, 936 S.W.2d 478 (Tex.App. B Eastland 1996, pet=n ref=d). The Eighth Amendment prohibits punishments that are Agrossly disproportionate@ to the offense for which the defendant has been convicted. Harmelin v. Michigan, 501 U.S. 957 (1991); Bradfield v. State, 42 S.W.3d 350 (Tex.App. B Eastland 2001, pet=n ref=d). The trial court=s assessment of 6 years confinement was within the range of punishment authorized by TEX. PENAL CODE ANN. ' 12.34 (Vernon 1994). There is no evidence that 6 years confinement is Agrossly disproportionate@ to the offense of assault on a public servant. The trial court did not abuse its discretion in assessing appellant=s punishment. Points of Error Nos. 2 and 3 are overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

February 27, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.