Paula Cremer v. State

• Court: Court of Appeals of Texas
• Decided: June 27, 2013
• Docket: 13-13-00123-CR
• Status: Published

Opinion

NUMBER 13-13-00123-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

PAULA CREMER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 214th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Longoria Memorandum Opinion by Justice Rodriguez Appellant Paula Cremer challenges the punishment imposed by the trial court after

she was adjudicated guilty of class A misdemeanor assault. See TEX. PENAL CODE ANN.

§ 22.01(a)(1), (b) (West 2011). By one issue, Cremer argues that the punishment

assessed by the trial court was disproportionate to the seriousness of the offense. See U.S. CONST. amends. VIII, XIV. We affirm as modified.

I. Background

Cremer was indicted for injury to an elderly individual, see TEX. PENAL CODE

ANN. § 22.04(a) (West 2011), but pursuant to a plea agreement, Cremer ultimately

pleaded guilty to class A misdemeanor assault. See id. § 22.01(a). The trial court

deferred adjudication and placed Cremer on community supervision for a term of two

years. The State later filed a motion to revoke. After a hearing, the trial court revoked

Cremer's community supervision, adjudicated her guilty of the assault offense, and

sentenced her to nine months in the county jail. This appeal followed.

II. Disproportionate Sentence

By her sole issue, Cremer 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 Cremer 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

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

2 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, Cremer made no objection when the trial court pronounced her sentence,

and she did not raise the issue in a motion for new trial. Therefore, Cremer 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). We overrule Cremer's appellate issue.

III. Modification of Judgment

Cremer was convicted of class A misdemeanor assault, an offense which is

prescribed by section 22.01 of the penal code. See TEX. PENAL CODE ANN. § 22.01(a),

(b). However, the judgment lists the statute of offense as penal code section 22.04.

See id. § 22.04 (prescribing the offense of injury to a child, elderly individual, or disabled

individual). The Texas Rules of Appellate Procedure allow this Court to modify

judgments sua sponte to correct typographical errors and make the record speak the

truth. See TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim.

App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.);

Gray v. State, 628 S.W.2d 228, 233 (Tex. App.—Corpus Christi 1982, pet. ref'd). Thus,

3 we modify the judgment to correctly reflect that the statute of offense is section 22.01 of

the penal code.

IV. Conclusion

We affirm the trial court's judgment as modified.

NELDA V. RODRIGUEZ Justice

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

Delivered and filed the 27th day of June, 2013.