Opinion

Phil Anthony Boney appeals from the revocation of his deferred adjudication community supervision. Boney had previously pled guilty to indecency with a child, received a deferred adjudication of guilt, and been placed on ten years' community supervision. The State later moved to have the trial court proceed to an adjudication of guilt. Boney pled true to one of the State's three allegations. The trial court found that allegation true, adjudicated him guilty, and sentenced him to seven years' confinement.

Boney's attorney has filed an appellate brief in which he concludes that, after a review of the record and the related law, the appeal is frivolous and without merit. He has evaluated the record and has found no error that arguably supports an appeal. The brief thus meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Boney did not file a response pro se.

As Boney's counsel on appeal notes, Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001), recognizes there are some rare situations in which a trial court's judgment is accorded no respect, i.e., is void, due to a complete lack of power to render the judgment in question. Id. A void judgment can be attacked at any time. Id. We have examined the record and found no arguable basis on which to conclude the Nix exception applies to the present case.

As Boney's attorney also recognizes, a defendant may not raise, when appealing from a revocation proceeding, issues regarding the proceeding at which he or she was initially adjudicated guilty.    Tex.  Code  Crim.  Proc.  Ann.  art.  42.12,  §  5(b)  (Vernon  Supp.  2002); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Cooper v. State, 2 S.W.3d 500, 502 (Tex. App.Texarkana 1999, pet. ref'd). Therefore, this Court is without jurisdiction to review any errors made at the proceeding at which Boney was adjudicated guilty, even if previously raised on appeal.

As Boney's attorney further recognizes, a defendant appealing from the revocation of his or her deferred adjudication community supervision can appeal issues related to sentencing. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b); Vidaurri v. State, 49 S.W.3d 880, 884-85 (Tex. Crim. App. 2001). Counsel observes, however, that Boney's seven-year sentence is within the statutory range, see Tex. Pen. Code Ann. § 12.33(a) (Vernon 1994); Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws. 3586, 3616 (amended 2001) (current version at Tex. Pen. Code Ann. § 21.11(a)(1), (d) (Vernon Supp. 2002)), and that the trial court gave Boney credit for time served.

We have conducted our own independent review of the record, as we must do when an Anders brief is filed, see Wilson v. State, 40 S.W.3d 192, 197 (Tex. App.-Texarkana 2001, order), and found no arguable issues for appeal.

The judgment is affirmed.

Josh R. Morriss, III

Chief Justice

Date Submitted: July 11, 2002

Date Decided: July 12, 2002

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35(a) (Vernon 2003) (maximum punishment for state-jail felony offense is two years' imprisonment).

Texas courts have traditionally held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Here, Dews' sentence falls within the applicable range of 180 days' to two years' imprisonment. That, however, does not end the inquiry. A prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. U.S. Const. amend. VIII; see Solem, 463 U.S. at 290; Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.--Texarkana 1999, no pet.).

Solem had suggested, as a three-part test, that an appellate court consider: (1) the gravity of the offense compared with the harshness of the penalty; (2) the sentences imposed for similar crimes in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. See Solem, 463 U.S. at 292. Harmelin at least raised questions about the viability of the Solem three-part test. In fact, it was subsequently held that proportionality survived Harmelin, but that the Solem three-part test did not. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex. App.--Dallas 1994, pet. ref'd). In light of Harmelin, the test has been reformulated as an initial threshold comparison of the gravity of the offense with the severity of the sentence, and then, only if that initial comparison created an inference that the sentence was grossly disproportionate to the offense should there be a consideration of the other two Solem factors--(1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions. McGruder, 954 F.2d at 316; Lackey, 881 S.W.2d at 420-21.

Dews' sentence is the maximum authorized by the law applicable in this case, yet it is within the range determined by the Legislature to constitute an appropriate punishment for this type of crime. Nothing in this record demonstrates or raises an inference that this sentence was grossly disproportionate to this offense. Dews presented no evidence of punishments assessed for methamphetamine possession in Gregg County or elsewhere within this appellate district, nor does the record show she presented evidence to the trial court of punishments for this offense that have been assessed in other parts of Texas or in other jurisdictions outside of Texas. As such, Dews has not provided this Court with a record with which we may assess the validity of the contention now raised: that her sentence was constitutionally disproportionate to the offense for which she was convicted and for which her community supervision was revoked. Accordingly, we must overrule her final point of error.

Finding no reversible error, we affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: May 9, 2007

Date Decided: May 10, 2007

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