Howard E. Kim v. State ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00155-CR

Howard E. Kim,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 228th District Court

Harris County, Texas

Trial Court # 836,119

MEMORANDUM Opinion

        Appellant appeals his sentence, and attempts to appeal the adjudication of his guilt and revocation of his deferred adjudication community supervision, for indecency with a child by sexual contact.  See Tex. Penal Code Ann. § 21.11(a)(1), (d) (Vernon 2003).  We will affirm.

      Appellant’s first, second, and third issues concern the proceedings at the time of his plea of guilty.  We may not address these issues, and we dismiss them.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004); Nix v. State, 65 S.W.3d 664, 667, 672 (Tex. Crim. App. 2001); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999).

      Appellant’s fourth and fifth issues, likewise, concern the proceedings at the time of Appellant’s guilty plea; but Appellant frames them as voidness challenges.  See Nix, 65 S.W.3d at 667-68.  Appellant argues that the trial court’s review of presentence investigation reports, after deferring adjudication of Appellant’s guilt but before finally adjudicating his guilt and revoking his community supervision, renders his conviction void (citing State ex rel. Bryan v. McDonald, 662 S.W.2d 5 (Tex. Crim. App. 1983) (orig. proceeding); State ex rel. Turner v. McDonald, 676 S.W.2d 375 (Tex. Crim. App. 1984) (orig. proceeding)).  The cases that Appellant cites do not stand for the proposition that the conviction is void.  See Vela v. State, 915 S.W.2d 73, 75 (Tex. App.—Corpus Christi 1996, no pet.); Wissinger v. State, 702 S.W.2d 261, 263 (Tex. App.—Houston [1st Dist.] 1985, pet. ref’d).  We dismiss Appellant’s fourth and fifth issues.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b); Nix at 667-68; Manuel, 994 S.W.2d at 661-62.

      In Appellant’s sixth and seventh issues, he contends that his sentence constituted cruel and unusual punishment.  By failing to present his complaint in the trial court, Appellant forfeited it.  See Tex. R. App. P. 33.1(a); Idowu v. State, 73 S.W.3d 918, 921 n.9 (Tex. Crim. App. 2002) (citing Smith v. State, 10 S.W.3d 48, 49 (Tex. App.—Texarkana 1999, no pet.)).  We overrule Appellant’s sixth and seventh issues.

      Having dismissed or overruled Appellant’s issues, we affirm the judgment. 

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Opinion delivered and filed October 6, 2004

Affirmed

Do not publish

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