Opinion filed July 21, 2011




                                            In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-10-00101-CR
                                         __________

                              MARLON WAGNER, Appellant

                                               V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 3rd District Court

                                    Anderson County, Texas

                                  Trial Court Cause No. 23650


                              MEMORANDUM OPINION
       This is an appeal from a judgment adjudicating appellant’s guilt. On April 25, 1995,
appellant pleaded guilty to the offense of aggravated robbery with a deadly weapon. Pursuant to
a plea bargain, the trial court deferred adjudication of appellant’s guilt and placed appellant on
probation for ten years. The State subsequently filed a motion to adjudicate. On December 5,
1997, the trial court revoked appellant’s deferred adjudication probation, convicted appellant of
the offense of aggravated robbery with a deadly weapon, and assessed punishment at
confinement for thirty-five years. Trial counsel failed to timely file a notice of appeal, but the
Court of Criminal Appeals found that appellant was entitled to the opportunity to file an out-of-
time appeal, which we now address. Ex Parte Wagner, No. AP-76287, 2010 WL 465722 (Tex.
Crim. App. Feb. 10, 2010). We affirm.
       We note that the hearing on the State’s motion to adjudicate 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 Supp. 2010), allowing an appeal from a determination to adjudicate. Therefore, former
TEX. CODE CRIM. PROC. art. 42.12, § 5(b) (2005) and its prohibition concerning appeals from a
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). Former Article 42.12, section 5(b), however, does permit an appeal from the trial court’s
assessment of punishment following a determination to proceed with an adjudication of guilt.
Kirtley v. State, 56 S.W.3d 48, 51 (Tex. Crim. App. 2001); see also Phynes, 828 S.W.2d at 1 n.1.
       In his first issue, appellant argues that his punishment was excessive and grossly
disproportionate to the offense under both the United States and Texas constitutions. Wagner
did not raise these claims in the trial court. Therefore, his first issue has not been preserved for
review. See TEX. R. APP. P. 33.1; Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App.
1996) (holding cruel and unusual punishment argument under Texas constitution was waived
when appellant failed to object at trial); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App.
1995) (holding cruel and unusual punishment argument under United States Constitution was
waived when appellant never objected on those grounds at trial).
       Even if the issue had been preserved for review, appellant has not demonstrated that the
punishment was excessive and grossly disproportionate.                  The Eighth Amendment prohibits
punishment that is grossly disproportionate to the offense for which a defendant has been
convicted. Harmelin v. Michigan, 501 U.S. 957, 1001 (1991); McGruder v. Puckett, 954 F.2d

       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).


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313, 317 (5th Cir. 1992). The reviewing court must first compare the gravity of the offense with
the severity of the sentence. Harmelin, 501 U.S. at 1001; McGruder, 954 F.2d at 317. Appellant
pleaded guilty to aggravated robbery with a deadly weapon, a first degree felony punishable by a
term of imprisonment of not more than ninety-nine years or less than five years. TEX. PENAL
CODE ANN. §§ 12.32(a), 29.03(b) (Vernon 2011).                             The trial court assessed punishment at
confinement for thirty-five years. A penalty assessed within the range of punishment established
by the legislature generally will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809
(Tex. Crim. App. 1984). Appellant’s first issue is overruled.
       In his second issue, appellant argues that it was error for the trial court to adjudicate his
guilt. In particular, appellant contends that the trial court used a probable cause or reasonable
suspicion standard in finding true the allegation that appellant had been in possession of a
controlled substance.           Because the law applicable to this case prohibits an appeal from a
determination to proceed with an adjudication of guilt, we lack jurisdiction to review this issue.
Phynes, 828 S.W.2d at 2. Appellant’s second issue is dismissed.
       The judgment of the trial court is affirmed.


                                                                                PER CURIAM


July 21, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.2




       2
           John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.


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