John Steve Secada v. The State of Texas--Appeal from Criminal District Court 1 of Tarrant County

NO. 12-03-00104-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOHN STEVE SECADA, APPEAL FROM THE

APPELLANT

V. CRIMINAL DISTRICT COURT NO. 1 OF

THE STATE OF TEXAS,

APPELLEE TARRANT COUNTY, TEXAS

MEMORANDUM OPINION

John Steve Secada ( Appellant ) appeals the trial court s order revoking his deferred adjudication probation, following which the trial court sentenced Appellant to imprisonment for six years. Appellant raises two issues on appeal. We dismiss a portion of this appeal for want of jurisdiction, and affirm the remainder.

Background

Appellant was charged with intentionally causing bodily injury to a child younger than fifteen years of age and pleaded guilty. The trial court deferred an adjudication of guilt and placed Appellant on probation for six years. On August 27, 2002, the State filed a motion to revoke Appellant s probation alleging that Appellant had committed an offense against the laws of the State of Texas, to-wit: indecent exposure. Appellant pleaded not true to the allegation in the State s motion. Following a hearing, the trial court revoked Appellant s probation, adjudicated Appellant guilty as charged, and sentenced Appellant to imprisonment for ten years.

Subsequently, Appellant filed a motion for new trial, alleging that the trial court erred by failing to afford him the opportunity to present punishment evidence after making its decision to proceed to adjudication. Appellant later filed an amended motion for new trial, contending that the trial court s finding that Appellant violated the terms of his probation was not supported by sufficient evidence. The trial court granted Appellant a new trial as to punishment only. Following a hearing on punishment, the trial court sentenced Appellant to imprisonment for six years. This appeal followed.

Appeal of Revocation of Deferred Adjudication Probation

In his first issue, Appellant argues that the trial court abused its discretion in finding the allegation contained in the State s motion was supported by sufficient evidence. Texas Code of Criminal Procedure Article 42.12, section 5(b) governs the situation at issue. Article 42.12, section 5(b) states as follows:

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 proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.

Tex. Code. Crim. Proc. Ann. art. 42.12 5(b) (Vernon Supp. 2004) (emphasis added).

In Connolly v. State, 983 S.W.2d 738 (Tex. Crim. App. 1999), the court of criminal appeals reiterated a long line of cases dealing with situations similar to the instant case. See Connolly, 983 S.W.2d at 740-741 (citing Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992) (explaining that court of criminal appeals had held from the beginning of deferred adjudication practice that the Legislature [had] meant what it said in Article 42.12 5(b) ); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (on appeal of trial court s decision to revoke probation and adjudicate, even if the appellant s right to counsel had been violated, the appellant could not use direct appeal as the vehicle with which to seek redress); Wright v. State, 592 S.W.2d 604, 606 (Tex. Crim. App. 1980) (under the terms of the statute, no appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979) (trial court s decision to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable)). The court continued:

In all these cases, we have tried to make clear that, given the plain meaning of Article 42.12 5(b), an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process. (citation omitted). Moreover, since the legislature has not overturned our interpretation of the statute after all these years, we are confident that our interpretation is correct. See State v. Hall, 829 S.W.2d 184, 187 (Tex. Crim. App. 1992) (prolonged legislative silence following judicial interpretation of statute implies approval of interpretation).

Connolly, 983 S.W.2d at 741.

In our view, given the factual similarities between Connolly, its progeny, and the case at hand, the holdings in Connolly and the cases cited therein control the instant case as it relates to the trial court s decision to proceed to adjudication. See also Phynes, 828 S.W.2d at 2. Considering the plain meaning of article 42.12, section 5(b) and the long line of authority from the court of criminal appeals on the issue, we hold that the issue Appellant seeks to raise arises out of the trial court s decision to proceed with the adjudication of guilt following the revocation of Appellant s probation. Therefore, we lack jurisdiction to consider Appellant s first issue.

Cruel and Unusual Punishment

In his second issue, Appellant argues that the six-year sentence imposed by the trial court amounted to cruel and unusual punishment. // Initially, we note that Appellant made no objection to the trial court raising the issue of cruel and unusual punishment and has, therefore, waived such an issue with respect to any alleged violation of his rights under the Texas Constitution. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Tex. R. App. P. 33.1. However, even absent waiver, we conclude that Appellant s sentence did not constitute cruel and unusual punishment.

The legislature is vested with the power to define crimes and prescribe penalties. See Davis v. State, 905 S.W.2d 655, 664 (Tex. App. Texarkana 1995, pet. ref d); see also Simmons v. State, 944 S.W.2d 11, 15 (Tex. App. Tyler 1996, pet. ref d). Courts have repeatedly held that punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See 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); Davis, 905 S.W.2d at 664. In the case at hand, Appellant pleaded guilty to intentionally causing bodily injury to a child younger than fifteen years of age, a third-degree felony. See Tex. Pen. Code Ann. 22.04(a)(3), (f) (Vernon 2003). The punishment range for such an offense is between two and ten years. Id.; see also Tex. Pen. Code Ann. 12.34(a) (Vernon 2003). Here, the punishment assessed by the trial court falls well within the range set forth by the legislature. Id. Therefore, the punishment is not prohibited as cruel, unusual, or excessive per se.

Nonetheless, Appellant urges the court to perform the three-part test originally set forth in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, the proportionality of a sentence is evaluated by considering (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 292, 103 S. Ct. at 3011. // The application of the Solem test has been modified by Texas courts and the Fifth Circuit Court of Appeals, in light of the Supreme Court s decision in Harmelin, to require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the remaining elements. See, e.g., McGruder, 954 F.2d at 316; see also Jackson v. State, 989 S.W.2d 842, 845-46 (Tex. App. Texarkana 1999, no pet.).

In determining whether Appellant s sentence is grossly disproportionate, we are guided by the holding in Rummel v. Estell, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). // In Rummel, the Supreme Court addressed the proportionality claim of an appellant who had received a mandatory life sentence under a prior version of the Texas habitual offender statute for a conviction for obtaining $120.75 by false pretenses. Id., 445 U.S. at 266, 100 S. Ct. at 1135. The life sentence was imposed because the appellant also had two prior felony convictions - one for fraudulent use of a credit card to obtain $80.00 worth of goods or services and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 266, 100 S. Ct. at 1134-35. After both recognizing the legislative prerogative to classify offenses as felonies and considering the purpose of the habitual offender statute, the court determined that the appellant s mandatory life sentence did not constitute cruel and unusual punishment. Id., 445 U.S. at 285, 100 S. Ct. at 1145.

In the case at hand, the offense committed by Appellant - injury to a child - was more serious than the offenses committed by the appellant in Rummel, while Appellant s six-year sentence is far less severe than the life sentence upheld by the Supreme Court in Rummel. Thus, it follows that if the sentence in Rummel was not unconstitutionally disproportionate, then neither is the sentence assessed against Appellant in the case at hand. Therefore, since we do not find the threshold test to be satisfied, we need not apply the remaining elements of the Solem test. Appellant s second issue is overruled.

Conclusion

We are without jurisdiction to consider Appellant s issue one. We dismiss the portion of this appeal concerning Appellant s first issue for want of jurisdiction. Having overruled Appellant s issue two, we affirm the remainder of the trial court s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered May 28, 2004.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(DO NOT PUBLISH)