                                  NO. 07-03-0129-CR
                                  NO. 07-03-0130-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                      MAY 5, 2006

                         ______________________________


                    TIMOTHY LAWRENCE MOORE, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

       NOS. 32,672-C & 32,670-C; HONORABLE PATRICK A. PIRTLE, JUDGE

                        _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


             ON REMAND FROM THE COURT OF CRIMINAL APPEALS


      By opinion dated March 29, 2005, we dismissed appellant Timothy Lawrence

Moore’s appeals based on the trial court’s certifications that the cases were plea bargain

cases with no right of appeal. On appellant’s petition for discretionary review, the Court
of Criminal Appeals remanded the case for further consideration in light of its recent

decision in Hargesheimer v. State, 182 S.W.3d 906 (Tex.Cr.App. 2006). 1


       Pursuant to pleas of guilty, on May 9, 1997, appellant was granted deferred

adjudication in cause number 32,672-C for burglary of a habitation with intent to commit

theft and in cause number 37,670-C for aggravated robbery and placed on community

supervision for six years and ten years plus $2000 restitution, respectively. The State filed

motions to revoke alleging numerous violations of the conditions of community supervision,

including commission of a new offense. Appellant pled true to all but one allegation–the

new offense--and after hearing evidence, the trial court adjudicated him guilty of the

original offenses and assessed punishment at 40 years confinement.


       Presenting four issues, appellant maintains the trial court abused its discretion in

assessing punishment based on hearsay and information not in the record and subject to

confrontation and cross-examination. Although article 42.12, section 5(b) prohibits a

defendant from appealing a trial court’s decision to adjudicate guilt, an appeal from post-

adjudication proceedings is not foreclosed by the statute. However, any complaints

regarding post-adjudication proceedings must be preserved for review. See Tex. R. App.

P. 33.1(a). See also Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Cr.App. 1999).


       1
        The Court held that a trial judge must check the box on the certification form
indicating the case “is not a plea-bargain case, and the defendant has the right of appeal.”
Hargesheimer, 182 S.W.3d at 913. However, article 42.12, section 5(b) of the Texas
Code of Criminal Procedure will continue to prohibit the appeal of the trial court’s decision
to adjudicate guilt. Id.

                                             2
       During the adjudication phase, appellant testified to the facts of the 1988 aggravated

robbery with a firearm that resulted in the death of James Gilstrap. Appellant and another

party were involved; appellant, however, did not pull the trigger. During the punishment

phase, the deputy who investigated the 1988 offense testified that appellant was charged

with either murder or capital murder,2 but the offense was dismissed in exchange for his

guilty plea to aggravated robbery.


       The State presented punishment evidence, and although appellant testified at the

adjudication phase, he did not present any other evidence during the punishment phase.

Following imposition of the 40-year sentence by the trial court, appellant stated, “I can’t

believe a man can come in here and in 30 minutes, and something’s [sic] that’s taken over

14 years and he and [sic] I get punished this way.” No objection, however, was lodged to

the trial court’s sentence.


       Assuming, arguendo, that appellant’s comment can be interpreted as preserving a

complaint of the trial court’s decision, assessment of punishment is within the discretion

of the trial court. A sentence imposed within the range of punishment established by the

Legislature will not be disturbed on appeal. Flores v. State, 936 S.W.2d 478, 478-79

(Tex.App.–Eastland 1996, pet. ref’d). Aggravated robbery is a first degree felony. See

Tex. Pen. Code Ann. § 29.03(b). Burglary of a habitation is also a first degree felony. See



       2
           The officer could not recall the exact charge and did not have the warrant before
him.

                                               3
§ 30.02(d). A first degree felony carries a sentence of life or any term of not more than 99

years or less than 5 years. § 12.32(a). We conclude the trial court did not abuse its

discretion in assessing punishment at 40 years confinement. Issues one through four are

overruled.


       Accordingly, the judgments of the trial court are affirmed.


                                          Don H. Reavis
                                            Justice


Do not publish.




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