Jessica Cortez v. State

• Court: Court of Appeals of Texas
• Decided: September 12, 2013
• Docket: 13-12-00147-CR
• Status: Published

Opinion

NUMBER 13-12-00147-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JESSICA CORTEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court of Kleberg County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Perkes Memorandum Opinion by Justice Rodriguez Appellant Jessica Cortez challenges her convictions for endangering a child and

evading arrest with a motor vehicle. See TEX. PENAL CODE ANN. § 22.041(c) (West

2011), § 38.04(a) (West Supp. 2011). By one issue, Cortez argues that the eighteen-month sentences of incarceration imposed by the trial court after revoking her

probation were disproportionate to the seriousness of the convicted offenses. We affirm.

I. Background

Cortez was indicted for child endangerment and evading arrest in connection with

an incident in which she fled from police in her vehicle while a child was inside the vehicle.

Cortez pleaded guilty to the two charged offenses, and the trial court deferred

adjudication and placed her on community supervision for a term of three years.

The State filed a motion to revoke on both counts, alleging several violations of

Cortez's community supervision terms. At the revocation hearing, Cortez pleaded true

to all alleged violations. The trial court revoked her community supervision, adjudicated

her guilty as to both counts, and sentenced her to eighteen months incarceration in the

state jail on both counts, which sentences were ordered to run concurrently.

II. Discussion

By her sole issue, Cortez contends that the punishment assessed by the trial court

was disproportionate to the crime. The State contends the issue was not preserved for

our review because Cortez did not raise a proper objection in the trial court. We agree

with the State.

The Eighth Amendment of the United States Constitution provides that

"[e]xcessive bail shall not be required, nor excessive fines, nor cruel and unusual

punishment inflicted." U.S. CONST. amend. VIII. This right can be waived if a defendant

fails to object to her sentence on this basis. Smith v. State, 721 S.W.2d 844, 855 (Tex.

Crim. App. 1986); Noland v. State, 264 S.W.3d 144, 151–52 (Tex. App.—Houston [1st

2 Dist.] 2007, pet. ref'd) (concluding that by failing to object, the appellant did not preserve

an argument that the sentence was grossly disproportionate to the offense). To

preserve a complaint of disproportionate sentencing, the criminal defendant must make a

timely, specific objection to the trial court or raise the issue in a motion for new trial.

Noland, 264 S.W.3d at 151–52; Trevino v. State, 174 S.W.3d 925, 927–28 (Tex.

App.—Corpus Christi 2005, pet. ref'd); see TEX. R. APP. P. 33.1(a); Ponce v. State, 89

S.W.3d 110, 114–15 (Tex. App.—Corpus Christi 2002, no pet.) (holding that Ponce failed

to preserve his claims involving illegal sentences because he did not raise an objection in

the trial court); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.—Corpus Christi 1989,

pet. ref'd) (holding that Quintana waived his cruel and unusual punishment argument by

failing to object).

Here, Cortez did not object when the trial court pronounced her sentence, and she

did not raise the issue in a motion for new trial. Therefore, Cortez has not preserved this

issue for our review. See Noland, 284 S.W.3d 151–52; see also TEX. R. APP. P. 33.1(a).

Regardless, we note that even had Cortez preserved this issue, her 180-day sentences

were the minimum sentences prescribed for her state jail felony convictions. See TEX.

PENAL CODE ANN. § 12.35(a) (West Supp. 2011); see also id. §§ 22.041(c), (f), 38.04(a),

(b)(1)(B). And punishments within the statutory limit are generally not found to be

excessive, cruel, or unusual. See Nunez v. State, 110 S.W.3d 681, 682 (Tex.

App.—Corpus Christi 2003, no pet.).

We overrule Cortez's appellate issue.

3 III. Conclusion

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ Justice

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

Delivered and filed the 12th day of September, 2013.