In The
Court of Appeals
For The
First District of Texas
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NO. 01-00-00914-CR
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JOSEPH CHARLTON FOY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 675217
O P I N I O N
This is an appeal of a 25 year sentence pursuant to a motion to adjudicate guilt. We affirm the trial court’s sentence.
Procedural Background
This Court dismissed appellant’s appeal on the basis that we lacked jurisdiction because the notice of appeal did not comply with Rule 25(b)(3) of the Texas Rules of Appellate Procedure. Foy v. State, No. 01-00-00914-CR (Tex. App.—Houston [1st Dist.] March 1, 2001). Appellant’s petition for discretionary review was granted. The Texas Court of Criminal Appeals reconsidered the applicability of Rule 25.2(b)(3) to adjudication of guilt. See Vidaurri v. State, 49 S.W.3d 880 (Tex. Crim. App. 2001). Vidaurri had not been issued prior to our holding in Foy. The appeal has been remanded to our court for reconsideration in light of Vidaurri.
Background
On July 18, 1994, appellant pled nolo contendere to aggravated sexual assault of a child under the age of 14. In accordance with the terms of a plea bargain agreement, the trial judge deferred adjudication of guilt, placed appellant on community supervision for 10 years, and assessed a fine of $500. The State filed a motion to adjudicate guilt to which appellant pled true on June 26, 2000. The trial judge proceeded to find appellant guilty of aggravated sexual assault and assessed punishment at 25 years confinement. On July 25, 2000 appellant filed a motion for new trial claiming that the trial court erred in adjudicating him guilty. Appellant’s points of error claim the trial court abused its discretion in assessing his punishment at 25 years confinement because it violates his federal and state constitutional rights against cruel and unusual punishment. We overrule appellant’s two points of error.
Discussion
This court had originally held that, because appellant was complaining of the sentence imposed, Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure applied. Vidaurri held that when a defendant pleads guilty in exchange for deferred adjudication, that initial plea triggers the application of Rule 25.2(b)(3) limitations to his appeal. Id. at 882. Therefore, if an appellant’s complaints are not related to his conviction, Rule 25.2(b)(3) limitations do not apply and an appellate court retains jurisdiction. See id. at 885. In light of Vidaurri, we find that appellant’s complaint for review was regarding punishment and not his conviction. Therefore, this Court has jurisdiction over appellant’s points of error.
To preserve a cruel-and-unusual-punishment complaint for appellate review, a defendant must object to the sentence during the punishment phase of trial or in a motion for new trial. See Tex. R. App. P. 33.1(a); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); Solis v. State, 945 S.W.2d 300, 301-02 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). Appellant did not object to the severity of his sentence at the time of sentencing. Appellant’s motion for new trial does not complain that the sentence constituted cruel and unusual punishment, but only that the trial court erred in adjudicating him guilty. Appellant has failed to preserve any error for our review and we overrule appellant’s two points of error.
Conclusion
We affirm the judgment of the trial court.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Jennings and Radack.
Do not publish. Tex. R. App. P. 47.