                                    NO. 07-06-0281-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                   JANUARY 8, 2007
                           ______________________________

                                JAMES ROBERT LOOMIS,

                                                                  Appellant

                                               v.

                                  THE STATE OF TEXAS,

                                                       Appellee
                         _________________________________

              FROM THE 123RD DISTRICT COURT OF SHELBY COUNTY;

                NO. 03CR-15,835; HON. GUY W. GRIFFIN, PRESIDING
                       _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       James Robert Loomis (appellant) appeals from an order adjudicating him guilty of

the offense of aggravated sexual assault. Pursuant to a plea agreement, appellant pled

guilty to the offense on January 10, 2003, and the trial court deferred the adjudication of

his guilt and placed him on community supervision for ten years. Subsequently, the State

moved to adjudicate appellant guilty, and the trial court granted the motion. Via three

issues, appellant contends that the trial court 1) violated his constitutional rights to be free
from double jeopardy, 2) sentenced him excessively and 3) erred by admitting evidence

of prior extraneous conduct during the punishment phase of the trial. We affirm.

                              Issue One - Double Jeopardy

       Appellant initially contends that his constitutional rights against double jeopardy

were violated when the trial court adjudicated him guilty for committing offenses for which

he had previously been punished. The previous punishment involved the modification of

the terms of his probation due to the misconduct. We overrule the issue for several

reasons.

       First, no appeal may be taken from a determination to proceed with an adjudication

of guilt. TEX . CODE CRIM . PROC . ANN . art. 42.12 (5)(b) (Vernon Supp. 2006); Connolly v.

State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Phynes v. State, 828 S.W.2d 1, 2

(Tex. Crim. App. 1992); Olowosuko. v. State, 826 S.W.2d 940, 941-42 (Tex. Crim. App.

1992). Therefore, we have no jurisdiction to consider appellant’s attack on the trial court’s

decision to adjudicate him.

       Second, even if we did have jurisdiction over the dispute we would have to overrule

the issue. The trial court had before it evidence of various grounds purportedly justifying

its decision to adjudicate guilt. Furthermore, appellant did not attack each one, and proof

of any one of the alleged violations is enough to support an order to revoke probation. See

Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979); Gobell v. State, 528 S.W.2d

223, 224 (Tex. Crim. App. 1975).




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                     Issue Two - Cruel and Unusual Punishment

       In his second issue, appellant attacks his punishment contending that his sentence

of life imprisonment was excessive, cruel and unusual, grossly disproportionate to the

offense committed, and a violation of his constitutional rights. We overrule the issue.

       Even though a term of imprisonment within the statutory limit is generally considered

legitimate, Alvarez v. State, 63 S.W.3d 578, 580 (Tex. App.–Fort Worth 2001, no pet.), the

Supreme Court has identified three criteria to be used to evaluate whether it could be

unconstitutionally excessive. See Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001,

3010-11, 77 L.Ed.2d 637(1983). They involve (1) the gravity of the offense and the

harshness of the punishment, (2) the sentences imposed on other criminals in the same

jurisdiction, and (3) the sentences imposed for the same offense in other jurisdictions. Id.

Regarding the last two criteria, we note that appellant cited us to no evidence of record

touching upon them; thus, we are unable to factor them into the equation. As for the first

criteria, we compare the gravity of the offense against the severity of the sentence.

Alvarez, 63 S.W.3d at 581. And, in considering the gravity of the offense, we weigh the

harm caused or threatened to the victim or society and the culpability of the offender. Id.

       Though appellant concedes that the charged crime is “serious,” he nonetheless

does not deem having sex with a six-year-old child as serious as “murder.” Furthermore,

he attempts to shift the blame for his penetration of a six year old onto the child and her

alleged promiscuity. That the child was six and that every adult should know that one does

not have sex with a six year old merited no comment by him, however. Yet, it does

illustrate the depravity of his crime and mind set.



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        Nor does appellant address the testimony of the victim’s grandmother about how

the child was highly upset during the sexual assault examination, how she was “screaming

and hollering,” how the child has been in “counseling for quite a while,” how she is “always

afraid that [appellant] was always going to be mad at her” and how she has “nightmares.”

This evidence evinces that appellant’s conduct caused harm to the victim. And, that he

admitted to committing the assault verifies his culpability. Thus, we must conclude that

appellant did not meet his burden in showing that the sentence levied was cruel or unusual.

                           Issue Three - Extraneous Offenses

       Appellant lastly contends that the trial court erred in admitting testimony from Jimmy

Vickers (Vickers) about appellant’s conduct in high school. Vickers was appellant’s high

school principal and, according to appellant, provided information that was more prejudicial

than probative. This was so because the “probative value of the proffered evidence [was]

very small, given the fact that the information conveyed by [ ] Vickers was between six (6)

and eleven (11) years old, and related to [appellant] as an adolescent and a teenager.”

Furthermore, he contends that the evidence was “unfairly prejudicial” because it “painted

a picture of an adolescent [appellant] who committed numerous small, ticky-tack ‘violations’

that are not particularly uncommon among youths.” We overrule the issue.

       Vickers testified that appellant had problems with teachers and was sent to Vickers’

office frequently, “did not like authority and he did not respect authority,” violated the rules

while in high school by going over to the junior high school to meet his then girlfriend, and

stole a backpack. Whether to admit this evidence during the punishment phase of the trial

lay within the discretion of the trial judge. See TEX . CODE CRIM . PROC . ANN . art. 37.07

(3)(a)(1) (Vernon 2006) (permitting the trial court to admit evidence of past misconduct if

                                               4
it bears on the issue of punishment); Montgomery v. State, 810 S.W.2d 372, 378 (Tex.

Crim. App. 1990) (recognizing that the decision whether to admit evidence falls within the

scope of a trial court’s discretion). Accordingly, the trial court's decision cannot be changed

as long as it falls within the "zone of reasonable disagreement." Rachal v. State, 917

S.W.2d 799, 807 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at 391.

       In the present case, we cannot say that the trial court abused its discretion in

concluding that the probative value of Vickers’ testimony was substantially outweighed by

the danger of unfair prejudice. Vickers' testimony was highly probative of appellant's

character, and thus instrumental in giving complete information to the judge so that he

could tailor an appropriate sentence. See Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim.

App. 2004) (stating that one of the policies that operates during the punishment phase of

a non-capital trial includes “giving complete information to the jury to allow it to tailor an

appropriate sentence for the defendant . . .”). Moreover, the State only briefly examined

Vickers on the details of appellant's behavioral problems in school. Thus, the decision fell

within the zone of reasonable disagreement.

       Accordingly, we affirm the judgment of the trial court.


                                                   Per Curiam


Do not publish.




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