Chamel Nicole Anderson v. State

Opinion

AFFIRM; and Opinion Filed December 2, 2013.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01341-CR

CHAMEL NICOLE ANDERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F09-56401-U

MEMORANDUM OPINION Before Justices FitzGerald, Lang, and Fillmore Opinion by Justice Fillmore

Chamel Nicole Anderson appeals from the adjudication of her guilt for aggravated assault

with a deadly weapon. The trial court assessed punishment at ten years’ imprisonment. In three

issues, Anderson contends the trial court improperly considered inadmissible hearsay evidence in

determining her punishment, and the ten-year sentence imposed by the trial court violates the

United States and Texas constitutions because it is grossly disproportionate to the crime and

inappropriate to the offender. We affirm.

Anderson waived a jury and pleaded guilty to aggravated assault with a deadly weapon.

See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed Anderson on five years’ community supervision, and

assessed a $2,000 fine. The State later moved to adjudicate guilt, alleging Anderson violated the

following conditions of her community supervision: condition (b) by testing positive for cocaine;

condition (d) by failing to report to the community supervision office as directed; condition (e)

by failing to give twenty-four-hour notice of changes in home or employment address; condition

(h) by failing to pay court costs and fines; condition (j) by failing to pay community supervision

fees; condition (k) by failing to make a Crime Stoppers payment; and condition (n) by failing to

pay the urinalysis fee ordered by the court. Anderson pleaded true to the allegations. The trial

court found the allegations true, revoked Anderson’s community supervision, adjudicated her

guilty of the aggravated assault with a deadly weapon offense, and sentenced her to ten years’

imprisonment.

In her first issue, Anderson contends the trial court improperly considered inadmissible

hearsay evidence in determining her punishment. The State responds that Anderson’s complaint

was not preserved, the complained-of evidence was admissible under an exception to the hearsay

rule, and any error by the trial court in considering the complained-of evidence was not harmful.

Anderson objected on the basis of hearsay when her probation officer testified there were

allegations contained in Anderson’s probation file indicating she engaged in prostitution while

she was on community supervision. 1 That objection was sustained by the trial court. The

witness did not return to that subject. When the trial court granted the State’s request that it take

judicial notice of the entire contents of court’s file, which included Anderson’s probation file,

Anderson failed to make a timely objection that the file contained hearsay. Later in the

1 Anderson’s probation file is not included in the appellate record.

-2- proceeding, the trial court examined Anderson concerning allegations of prostitution contained in

her probation file, and again Anderson failed to make a timely objection.

To preserve error for appellate review, a party must make a timely request, objection, or

motion to the trial court that “state[s] the grounds for the ruling . . . sought from the trial court

with sufficient specificity to make the trial court aware of the complaint, unless the specific

grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A); see also Martinez v.

State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (with limited exceptions, Texas law requires

that, to preserve error for appellate review, party must object each time inadmissible evidence is

offered). Here, no timely objection was made either when the trial court took judicial notice of

the probation file containing reports Anderson was engaged in prostitution while on community

supervision or when the trial court questioned Anderson about whether she had been engaged in

prostitution while on community supervision. 2 In the absence of a timely objection, evidence is

not denied probative value simply because it is hearsay. TEX. R. EVID. 802; Poindexter v. State,

153 S.W.3d 402, 406 (Tex. Crim. App. 2005). Because Anderson failed to object to the trial

court taking judicial notice of the contents of Anderson’s probation file or questioning Anderson

about whether she had been engaged in prostitution while on community supervision, she has not

preserved an issue for appellate review. We resolve Anderson’s first issue against her.

In her second and third issues, Anderson contends her ten-year sentence is grossly

disproportionate to the crime and inappropriate to the offender, in violation of the Eighth and

Fourteenth Amendments to the United States Constitution and Article I, Section 13 of the Texas

Constitution. See U.S. CONST. amend. VIII, XIV; TEX. CONST. art. I, § 13. Anderson asserts

the evidence shows she needed treatment for her drug addiction and not incarceration. The State

2 Near the end of the punishment hearing, Anderson’s counsel made a very short closing argument during which he indicated “as much as the Court can, would ask the Court to disregard any unfounded or hearsay allegations that have been made.” To the extent this argument may be construed to be a hearsay objection, it was untimely.

-3- responds that Anderson has failed to preserve her complaints for appellate review and,

alternatively, the sentence is neither grossly disproportionate to the crime nor cruel or unusual

punishment.

Anderson did not complain about the sentence either at the time it was imposed or in a

motion for new trial. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723

(Tex. App.—Dallas 2003, no pet.). Thus, Anderson has not preserved this issue for appellate

review.

Moreover, punishment that is assessed within the statutory range for an offense is neither

excessive nor unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex.

App.—Dallas 1997, pet. ref’d); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App.

1984). Aggravated assault with a deadly weapon is a second-degree felony offense punishable

by imprisonment for two to twenty years and an optional fine not to exceed $10,000. See TEX.

PENAL CODE ANN. §§ 12.33 (West 2011), 22.02(b). Anderson’s ten-year sentence is within the

statutory punishment range. We resolve Anderson’s second and third issues against her.

We affirm the trial court’s judgment.

/Robert M. Fillmore/ ROBERT M. FILLMORE JUSTICE

Do Not Publish TEX. R. APP. P. 47

121341F.U05

-4- Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

CHAMEL NICOLE ANDERSON, Appeal from the 291st Judicial District Appellant Court of Dallas County, Texas (Tr.Ct.No. F09-56401-U). No. 05-12-01341-CR V. Opinion delivered by Justice Fillmore, Justices FitzGerald and Lang participating. THE STATE OF TEXAS, Appellee

Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.

Judgment entered December 2, 2013.

-5-