Billy Aaron Sliger v. State of Texas ( 2007 )

Opinion filed November 1, 2007

Opinion filed November 1, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00292-CR

                                                    __________

                                  BILLY AARON SLIGER, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 35th District Court

                                                          Brown County, Texas

                                                 Trial Court Cause No. CR17102

                                                                   O P I N I O N

This is an appeal from a judgment adjudicating guilt.  Billy Aaron Sliger originally entered a plea of no contest to two offenses of aggravated sexual assault of a child.  Pursuant to the plea bargain agreement, the trial court deferred the adjudication of appellant=s guilt, placed him on community supervision for ten years, and assessed a $3,000 fine.  After a hearing on the State=s third amended motion to adjudicate, the trial court found fifteen of the State=s allegations that appellant had violated the terms and conditions of his community supervision to be true, revoked his community supervision, adjudicated his guilt, found the enhancement allegation to be true, and assessed his punishment at confinement for fifty years.  We modify the judgment and, as modified, affirm.

In his sole issue on appeal, appellant contends that evidence is both legally and factually insufficient to support the trial court=s sentence.  To the extent that appellant is challenging the sufficiency of the evidence to support the trial court=s decision to revoke his community supervision and adjudicate his guilt, those arguments are not properly before this court.  The hearing was conducted prior to the June 15, 2007 effective date of the amendment to Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon 2006) allowing an appeal from the determination to adjudicate.  Therefore, former Tex. Code Crim. Proc. art. 42.12, ' 5(b) (1999) and its prohibition concerning appeals from the determination to proceed with the adjudication of guilt apply.^[1]  Davis v. State, 195 S.W.3d 708, 709 (Tex. Crim. App. 2006); Hargesheimer v. State, 182 S.W.3d 906, 909 (Tex. Crim. App. 2006); Hogans v. State, 176 S.W.3d 829, 831 (Tex. Crim. App. 2005); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992).  Any challenges to the trial court=s decision to adjudicate are dismissed for want of jurisdiction.

To the extent that appellant is challenging the length of the sentence assessed, the record does not support his contentions.  The trial court assessed a sentence that was within the range of punishment authorized for a person convicted of a first degree felony offense with one prior felony conviction.  Tex. Pen. Code Ann. ' 12.32 (Vernon 2003), ' 12.42 (Vernon Supp. 2006).   A penalty assessed within the range of punishment established by the legislature will not be disturbed on appeal.  Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984); Bradfield v. State, 42 S.W.3d 350 (Tex. App.C Eastland 2001, pet. ref=d). Appellant=s sole issue is overruled.

The reporter=s record from the original plea proceedings reflects that appellant entered a plea of no contest.  Therefore, the judgment of the trial court is modified to reflect that appellant entered a plea of no contest.  As modified, the judgment is affirmed.

November 1, 2007                                                                   PER CURIAM

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

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^[1]Former Article 42.12, section 5(b) provided:

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 (emphasis added).