Evangel Mildred Brasel v. State

• Court: Court of Appeals of Texas
• Decided: November 24, 2010
• Docket: 02-09-00323-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-09-00323-CR

EVANGEL MILDRED BRASEL APPELLANT

V.

THE STATE OF TEXAS STATE

------------

FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY

MEMORANDUM OPINION1 ----------

I. Introduction

In one issue, Appellant Evangel Mildred Brasel asserts that, under the

circumstances of this case, the trial court abused its discretion by assessing a

sentence of eight years’ confinement. The State responds that Brasel failed to

preserve her issue for review, that the trial court properly exercised its discretion

in sentencing, and that Brasel’s issue is inadequately briefed. We affirm.

1 See Tex. R. App. P. 47.4. II. Factual and Procedural History

Pursuant to a plea bargain, Brasel pleaded guilty to burglary of a

habitation. The trial court placed Brasel on deferred adjudication community

supervision for five years and assessed a $750 fine. Brasel did not comply with

the terms of her community supervision, and the State moved to adjudicate. The

trial court accepted Brasel’s plea of ―true‖ to the community-supervision

violations, found Brasel guilty as charged in the indictment, and assessed

punishment of eight years’ confinement and a $750 fine. This appeal followed.

III. Preservation of Error

To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d

249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070

(1999). Further, the trial court must have ruled on the request, objection, or

motion, either expressly or implicitly, or the complaining party must have objected

to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State,

138 S.W.3d 334, 341 (Tex. Crim. App. 2004). An objection must be made as

soon as the basis for the objection becomes apparent. Tex. R. Evid. 103(a)(1);

Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App.), cert. denied, 522 U.S.

917 (1997); Polk v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987). The

preservation requirement extends to sentencing following revocation. Wright v.

2 State, 249 S.W.3d 581, 584 (Tex. App.—Fort Worth 2008, no pet.); Thompson v.

State, 243 S.W.3d 774, 775–76 (Tex. App.—Fort Worth 2007, pet. ref’d).

IV. Analysis

An analysis of the record reveals that when the trial court imposed Brasel’s

sentence, no objection was made by or on behalf of Brasel. And in Brasel’s

motion for new trial, Brasel asserted only that she ―should be granted a new trial

in these cases because the verdict is contrary to the law and the evidence.‖

Texas Rule of Appellate Procedure 33.1(a)(1)(A) requires that a complaint made

to the trial court be made ―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). We hold that the assertion in Brasel’s motion for

new trial is well wide of the mark of informing the trial court that there is a

complaint that the sentence is excessive2 and that nothing is preserved for our

review. Therefore, we overrule Brasel’s sole issue.

2 In Thompson, this court was presented with similar facts: a revocation of community supervision, a failure to object to sentencing, and the same or similar language in the motion for new trial. 243 S.W.3d at 775–76. However, we decided Thompson on the issue of presentment of the motion for new trial and not the adequacy of the motion’s wording. Id. at 776.

3 V. Conclusion

Having overruled Brasel’s sole issue, we affirm the trial court’s judgment.

BOB MCCOY JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: November 24, 2010