Shirley Ann Journet v. State

• Court: Court of Appeals of Texas
• Decided: October 17, 2006
• Docket: 14-05-00335-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed October 17, 2006

Affirmed and Memorandum Opinion filed October 17, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00335-CR

SHIRLEY ANN JOURNET, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182^nd District Court

Harris County, Texas

Trial Court Cause No. 965,046

M E M O R A N D U M   O P I N I O N

Appellant, Shirley Ann Journet, pled guilty to the third-degree felony offense of tampering with a government document.  Pursuant to a plea bargain, she received two years= deferred adjudication probation.  Nine months later, the State filed a motion to adjudicate guilt, alleging appellant had committed theft.  Appellant pled Anot true@ to the theft allegation.  Following a hearing, the trial court entered a finding of Atrue@ and sentenced appellant to four years= confinement in the penitentiary.  In two points of error, appellant argues (1) her sentence is not proportionate to her original offense and therefore violates the federal constitutional ban on cruel and unusual punishment and, (2) her sentence constitutes cruel and unusual punishment under the Texas Constitution.  We affirm.

The State argues appellant has failed to preserve either of her two points of error because she did not raise them before the trial court.  We agree.  At the close of the punishment phase, the trial court orally assessed punishment at four years= confinement.  The judge then asked:

Do you have anything to say before I sentence you, ma=am?

Having nothing to say, it=s the ORDER of the Court that you, Shirley Journet, having been found guilty and whose punishment has been assessed at four years confinement in prison, that you be delivered by the Sheriff of Harris County, Texas to the director of the Texas Department of Criminal Justice, institutional division . . . where you will be confined for a period of four years, according to the rules governing that institution.

Appellant did not object to her sentence before the trial court, and she filed no post-trial motion objecting to this sentence.  Because appellant did not raise either of her two points of error before the trial court, she has forfeited their review by this court.  See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (finding appellant waived complaint that trial court=s refusal to inform jury of  minimum sentence before parole eligibility violated Texas Constitutional ban on cruel and unusual punishment by not lodging that complaint before the trial court); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (finding appellant waived claim that federal and state constitutions prohibit his sentence as cruel and unusual punishment because he did not object when sentence was announced or raise arguments in any post-trial motion).  We overrule appellant=s first and second points of error.

The trial court=s judgment is affirmed.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed October 17, 2006.

Panel consists of Justices Anderson, Hudson, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).