Angel Ruscelli Strobl v. State

• Court: Court of Appeals of Texas
• Decided: July 3, 2008
• Docket: 13-07-00468-CR
• Status: Published

Opinion

NUMBER 13-07-00468-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ANGEL RUSCELLI STROBL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 156th District Court of Bee County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela Memorandum Opinion by Justice Rodriguez

Appellant, Angel Ruscelli Strobl, pleaded guilty to delivery of a controlled substance,

methadone, a first degree felony. See TEX . HEALTH & SAFETY CODE ANN . § 481.112(d)

(Vernon 2003). The trial court placed appellant on deferred adjudication community

supervision for a term of ten years. Upon the State's motion, the trial court revoked appellant's community supervision, adjudicated her guilty, and sentenced her to twenty

years' imprisonment in the Texas Department of Criminal Justice-Institutional Division. By

one issue, appellant contends the sentence imposed is unconstitutional. We affirm.

I. BACKGROUND

While appellant was serving a ten-year period of deferred adjudication community

supervision, the State filed a motion to revoke alleging that appellant had violated the terms

of her community supervision by delivering cocaine on three occasions. Finding the State's

allegations to be true, the trial court adjudicated appellant guilty and sentenced her to a

term of twenty years' confinement in the Texas Department of Criminal Justice-Institutional

Division. This appeal ensued.

II. CHALLENGE TO PUNISHMENT

By her sole issue, appellant contends that the sentence imposed by the trial court

violated the Eighth and Fourteenth Amendments of the United States Constitution. See

U.S. CONST . amends. VIII, XIV. Specifically, appellant argues that the sentence was cruel

and unusual because the State and appellant requested a twelve-year sentence, and yet

the trial court sentenced her to twenty years in prison.1

The State claims that appellant's issue has not been properly preserved for

appellate review. An appellant must present to the trial court a timely, specific objection

and obtain an adverse ruling in order to preserve complaints concerning cruel and unusual

punishment and violation of due process rights. Trevino v. State, 174 S.W.3d 925, 927-28

(Tex. App.–Corpus Christi 2005, pet. ref'd) (providing that "by failing to object to the trial

1 To the extent appellant m ay be asserting that the sentence im posed is disproportionate to the offense, appellant has waived that argum ent on appeal because she neither cites to authority nor supports the assertion with a clear and concise argum ent. See T EX . R. A PP . P. 38.1(h). 2 court's sentence below, [the appellant] forfeited his complaint" that his punishment was

cruel and unusual); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.–Corpus Christi

1989, pet. ref'd) ("Our law is well-established that almost every right, constitutional and

statutory, may be waived by the failure to object."); see TEX . R. APP. P. 33.1(a)(1)(A);

Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983) (en banc) (finding that

by not objecting to the trial court, appellant had not preserved for review his complaint that

the sentence was void because it inflicted cruel and unusual punishment). Here, appellant

did not raise any objection to the sentence imposed by the trial court and, thus, did not

preserve the issue for appeal. See Trevino, 174 S.W.3d at 927-28; Quintana, 777 S.W.2d

at 479.

Nonetheless, even had this issue been preserved, we would conclude that the

sentence imposed was not cruel and unusual. The punishment assessed is not cruel and

unusual within the constitutional prohibition as long as it is within the range prescribed by

the statute. Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Davis v. State,

125 S.W.3d 734, 735 (Tex. App.–Texarkana 2003, no pet.); see Barrow v. State, 207

S.W.3d 377, 381 (Tex. Crim. App. 2006) ("[A] punishment that falls within the legislatively

prescribed range, and that is based upon the jury's (or trial court's, in a bench trial)

informed normative judgment, is unassailable on appeal."). A person "adjudged guilty of

a felony of the first degree shall be punished by imprisonment in the institutional division

for life or for any term of not more than 99 years or less than 5 years." TEX . PENAL CODE

ANN . § 12.32 (Vernon 2003). No error is shown in this case because the punishment

assessed by the trial court was well within the range of punishment for a first degree felony.

See id.; Samuel, 477 S.W.2d at 614; Davis, 125 S.W.3d at 735; see also Barrow, 207

3 S.W.3d at 381. Thus, the sentence was not cruel and unusual. See Samuel, 477 S.W.2d

at 614; Davis, 125 S.W.3d at 735. We overrule appellant's sole issue.

III. CONCLUSION

We affirm.

NELDA V. RODRIGUEZ Justice

Do not publish. TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed this 3rd day of July, 2008.