Opinion
NO. 01-16-00520-CR
06-29-2017
ANIKA NATAKI MARTINEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court Harris County, Texas
Trial Court Case No. 1410375
MEMORANDUM OPINION
Appellant, Anika Nataki Martinez, pleaded guilty to intoxication manslaughter, and after a presentence investigation report was prepared, the trial court assessed punishment at 10 years' confinement. In her sole issue on appeal, appellant contends that "10 years confinement in the Texas Department of Criminal Justice Institutional Division was cruel and unusual punishment." We affirm.
BACKGROUND
Appellant was driving a 2004 Chevy Trailblazer, when she attempted to exit the freeway too quickly for the speed at which she was traveling, causing the Trailblazer to flip and roll six or seven times before coming to rest on its top. Two passengers were ejected from the Trailblazer; both were transported to the hospital, where one died. Firefighters cut appellant out of the driver's seat, and she too was transported to the hospital, where her blood alcohol level was determined to be 0.137, well above the legal limit. Appellant was charged with, and pleaded guilty to, intoxication manslaughter.
CRUEL AND UNUSUAL PUNISHMENT
In her sole issue on appeal, appellant contends that her sentence is grossly disproportionate to the crime she committed and violates the Eighth Amendment's prohibition against cruel and unusual punishment. Specifically, appellant argues that her sentence "was out of line with the case and the Appellant' prior social and criminal history and was thereby cruel and unusual punishment."
Standard of Review and Applicable Law
We review a sentence imposed by a trial court for an abuse of discretion. Buerger v. State, 60 S.W.3d 358, 363 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (en banc)). Generally, we will not disturb a sentence assessed within the proper statutory punishment range. Id.
The Eighth Amendment provides that "cruel and unusual punishments" shall not be inflicted. U.S. CONST. amend. VIII. It requires that a criminal sentence be proportionate to the crime for which a defendant has been convicted. See Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3010 (1983); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). Texas courts have generally held that a punishment that falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See, e.g., State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (noting that "this Court has traditionally held that punishment assessed within the statutory limits . . . is not excessive, cruel, or unusual"); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972) ("[w]here the punishment assessed by the judge or jury was within the limits prescribed by the statute the punishment is not cruel and unusual within the constitutional prohibition."); Young v. State, 425 S.W.3d 469, 474 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) ("Punishment assessed within the statutory limits is generally not cruel and unusual punishment."); Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) ("Generally, a sentence within the statutory range of punishment for an offense will not be held cruel or unusual under the Constitution of either Texas or the United States.").
To preserve a complaint of cruel and unusual punishment for appellate review, a defendant must object when her sentence is assessed or file a motion for new trial. See TEX. R. APP. P. 33.1(a); Noland, 264 S.W.3d at 151-52 (holding defendant failed to preserve Eighth Amendment complaint for appeal); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (holding that defendant's failure to object that punishment was cruel and unusual waived error); Solis v. State, 945 S.W.2d 300, 301-02 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd) (holding claim of cruel and unusual punishment could not be raised for the first time on appeal). "The burden is on appellant to see that a sufficient record is presented on appeal to show error." Young, 425 S.W.3d at 474 (quoting Montoya v. State, 872 S.W.2d 24, 25 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd)). Even most constitutional errors are waived if not properly preserved. Id.
Analysis
Appellant argues that her sentence is grossly disproportionate to the crime she committed and, thus, violates the Eighth Amendment's prohibition against cruel and unusual punishment. Specifically, appellant claims that the sentence only serves to punish her, but has no deterrent or rehabilitation effect, all three of which are stated objectives under the Penal Code. See TEX. PENAL CODE ANN. § 1.02 (West 2012). Appellant also points out that, even though she pleaded guilty, we should consider that the testifying officer did not go to the scene of the accident to perform an accident reconstruction.
The State responds that appellant waived any challenge to her sentence by not objecting in the trial court or otherwise preserving error, and, even if the issue were properly preserved, the trial court acted within its discretion in sentencing appellant within the statutory range. We agree with the State.
"[I]n order to preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired." Noland, 264 S.W.3d at 151-52 (holding that, by failing to object at sentencing hearing or raising complaint in motion for new trial, appellant failed to preserve argument that sentence was grossly disproportionate and violated Eighth Amendment); see also TEX. R. APP. P. 33.1(a); Benson v. State, 224 S.W.3d 485, 498 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (en banc) (finding waiver of sentencing complaints and noting that "[a]n appellant must present to the trial court a timely, specific objection and obtain an adverse ruling to preserve for appeal his complaints concerning cruel and unusual punishment and violation of due process rights."). Even constitutional errors may be waived by a failure to object at trial. See Young, 425 S.W.3d at 474.
Appellant never objected at trial, and, although she filed a motion for new trial, she did not assert cruel and unusual punishment as a ground for relief. Because appellant did not timely object in the trial court, she has not preserved her sentencing complaints for appeal. See TEX. R. APP. P. 33.1(a); Noland, 264 S.W.3d at 151-52.
We also note that appellant's 10-year sentence fell near the middle of the applicable statutory range of punishment for her intoxication manslaughter conviction, which is a second-degree felony punishable by confinement for 2 to 20 years and a fine not to exceed $10,000. TEX. PENAL CODE ANN. §§ 12.33, 49.08 (West 2012); see, e.g., Jacoby v. State, 227 S.W.3d 128, 131-33 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (holding that appellant waived challenge to alleged disproportionate sentence because appellant did not object in trial court or through post-trial motion and noting that punishment within statutory limits was not cruel and unusual). Also, appellant does not contend, nor do we find, that her sentence resulted from "fundamental" error such that she was not required to object to preserve error. See Young v. State, 425 S.W.3d 469, 474 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (holding no fundamental error when defendant was convicted of first-degree felony and sentenced on lower end of statutory range of punishment).
Accordingly, we overrule appellant's sole issue.
CONCLUSION
We affirm the trial court's judgment
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Keyes and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).