Jessica Cortez v. State ( 2013 )

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
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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.
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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.
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