Misty Rodriguez v. State of Texas ( 2009 )

Opinion filed April 9, 2009
In The
Eleventh Court of Appeals
__________
No. 11-07-00192-CR
_________
MISTY RODRIGUEZ, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 16050B
MEMORANDUM OPINION
Misty Rodriguez appeals her conviction, following her plea of guilty before the court, of the
offense of injury to a child by striking the child with her hand, a deadly weapon. The trial court
assessed her punishment at life imprisonment in the Texas Department of Criminal Justice,
Institutional Division. We affirm.
There is no challenge to the sufficiency of the evidence. The record reflects that Rodriguez’s
premature infant daughter was taken to an emergency room in Abilene. The baby had bilateral skull
fractures and bleeding in her brain. Her injuries were not consistent with shaken baby syndrome and
were consistent with blunt force trauma. To sustain this type of injury, the baby’s head must have
been struck by a hard or semi-hard object more than once. The baby was transferred to Cook’s
Children’s Hospital in Fort Worth because her injuries were more severe than the Abilene hospital
was equipped to handle. Rodriguez first told investigating officers that her eleven-month-old
daughter had hit her baby. At the time of trial, the victim was unable to see or hear, was in the care
of her grandparents, and was “not very mobile on her own unless with help.” Rodriguez contends
in a single issue on appeal that the life sentence she received violated her rights under the Eighth
Amendment of the United States Constitution and Article I, section 13 of the Texas Constitution
because it is disproportionate to her crime as shown by the evidence. Rodriguez waived these claims
because she failed to object to the sentence at the time it was announced and did not raise these
arguments in a posttrial motion. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);
Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
Moreover, we note that the trial court assessed punishment within the range authorized by the
legislature under TEX . PENAL CODE ANN . § 12.32 (Vernon 2003), § 22.04 (Vernon Supp. 2008). A
penalty assessed within the range of punishment established by the legislature will not be disturbed
on appeal. Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984); Bradfield v. State, 42 S.W.3d
350, 354 (Tex. App.—Eastland 2001, pet. ref’d). We overrule Rodriguez’s sole issue on appeal.
The judgment is affirmed.
PER CURIAM
April 9, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.1
1
John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
2