Gisele Brown v. State ( 2014 )

AFFIRM; and Opinion filed February 26, 2014.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00898-CR
GISELE BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F12-59808-U
MEMORANDUM OPINION
Before Justices Bridges, O’Neill, and Brown
Opinion by Justice Brown
Gisele waived a jury and pleaded guilty to reckless injury to a child causing serious
bodily injury. See TEX. PENAL CODE ANN. § 22.04(a)(1) (West Supp. 2013). The trial court
found appellant guilty and assessed punishment at imprisonment for 19 ½ years and a $3,000
fine. In a single issue, appellant contends the sentence violates the Eighth Amendment to the
United States Constitution. We affirm the trial court’s judgment.
Appellant contends the sentence is disproportionate to the offense and violates the Eighth
Amendment to the U.S. Constitution because it disregards her mental health and drug addiction
issues. Appellant asserts that because a rehabilitation plan addressing her issues was well
underway at the time of trial, the sentence is excessive and she should have received probation.
The State responds that appellant has failed to preserve her complaint for appellate review and
alternatively, the trial court properly exercised its discretion in assessing appellant’s sentence.
Appellant did not complain about the sentence either at the time it was imposed or in her
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, appellant 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). Reckless
injury to a child causing serious bodily injury is a second-degree felony, punishable by imprisonment
for two to twenty years and an optional fine not to exceed $10,000. See TEX. PENAL CODE ANN.
§§ 12.33, 22.04(e). Appellant’s sentence of 19 ½ years is within the statutory punishment range. We
resolve appellant’s sole issue against her.
We affirm the trial court’s judgment.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
130898F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GISELE BROWN, Appellant Appeal from the 291st Judicial District
Court of Dallas County, Texas (Tr.Ct.No.
No. 05-13-00898-CR V. F12-59808-U).
Opinion delivered by Justice Brown,
THE STATE OF TEXAS, Appellee Justices Bridges and O’Neill participating.
Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.
Judgment entered February 26, 2014.
/Ada Brown/
ADA BROWN
JUSTICE
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