Opinion
No. 05-19-00290-CR
03-30-2020
MELODIE LATREAS NELSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court Dallas County, Texas
Trial Court Cause No. F18-56614-N
MEMORANDUM OPINION
Before Justices Myers, Schenck, and Carlyle
Opinion by Justice Myers
Appellant Melodie Latreas Nelson pleaded guilty to aggravated robbery. The trial court accepted the plea and, after hearing punishment evidence, it made a deadly weapon finding and sentenced appellant to ten years' confinement. In one issue, appellant argues her ten-year sentence violated the objectives of the system of prohibitions, penalties, and correctional measures in the Texas Penal Code. We affirm.
DISCUSSION
In her issue, appellant argues the trial court abused its discretion in assessing a ten-year prison sentence because it failed to account for appellant's need for "rehabilitative intervention to address her significant and longstanding psychiatric disorders and drug abuse." Appellant also contends the sentence did not take into account "the presentence investigation report's recommendation that [a]ppellant receive treatment through an intense rehabilitative program, including a dual diagnosis residential treatment program to address her psychiatric and drug problems," and that sentencing her to a term of imprisonment did not "satisfy the rehabilitative objectives of the Texas Penal Code." The State responds that appellant failed to preserve her complaint and, alternatively, the trial court acted within its discretion in assessing a ten-year sentence.
A defendant must make a timely request or motion in the trial court to preserve alleged error. TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.); Williams v. State, No. 05-12-00987-CR, 2013 WL 5988448, at *1 (Tex. App.—Dallas Nov. 12, 2013, pet. ref'd) (mem. op., not designated for publication) (defendant did not preserve claim that trial court abused its discretion in assessing the defendant's sentence). "An appellant may not assert error pertaining to his sentence or punishment when he failed to object or otherwise raise the error in the trial court." Thompson v. State, 243 S.W.3d 774, 775 (Tex. App.—Fort Worth 2007, pet. ref'd); see also Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986). Here, appellant did not complain when the trial court assessed sentence. In response to the court's question whether there was any legal reason the sentence should not be imposed, defense counsel answered, "No, Your Honor."
Appellant's motion for new trial alleged that her sentence "constitutes a grossly disproportionate punishment in violation of the Eighth Amendment to the United State Constitution," and that "a new trial as to punishment should be granted on grounds of ineffective assistance, specifically if trial counsel never objected that [appellant's] sentence was grossly disproportionate and/or violative of the objectives of the Texas Penal Code." But raising an issue for the first time in a motion for new trial is usually insufficient to preserve error unless the appellant did not have an opportunity to present her objection to the trial court when the sentence was imposed. See Burt v. State, 396 S.W.3d 574, 577-78 & n.4 (Tex. Crim. App. 2013) ("This Court has held that an appellant may raise a sentencing issue in a motion for new trial for the first time only if the appellant did not have the opportunity to object in the punishment hearing."); Loring v. State, No. 05-18-00421-CR, 2019 WL 3282962, at *5 (Tex. App.—Dallas July 22, 2019, no pet.) (mem. op.) (appellant raised complaint that he had been denied common law right to allocution in his motion for new trial, but he had the opportunity to object prior to sentencing that the trial court had denied him the right to allocution, and he did not do so; therefore, he failed to preserve the issue for appellate review) (quoting Burt, 396 S.W.3d at 577 n.4). Appellant does not argue she did not have an opportunity to properly object.
Appellant argues instead that under certain circumstances an objection is not required to preserve a ground for appellate review, and she cites three cases to generally support this argument. As we indicated in Williams, however, where this same argument was raised, the cases are distinguishable and none of them apply to the facts of this case. Williams, 2013 WL 5988448, at *1; see also Montgomery v. State, 99 S.W.3d 257, 259-60 (Tex. App.—Fort Worth 2003, pet. struck) (rule 33.1 did not apply to argument that trial court should have withdrawn guilty plea sua sponte because evidence heard by the jury raised a question regarding defendant's innocence); Edwards v. State, 21 S.W.3d 625, 626-27 (Tex. App.—Waco 2000, no pet.) (authority of appellate courts to address complaint regarding deadly weapon finding when jury did not make such a finding was not dependent on whether party objected in the trial court); Garza v. State, 841 S.W.2d 19, 23 (Tex. App.—Dallas 1992, no pet.) (defendant did not need to object to amount of restitution during trial to preserve complaint that trial court abused its discretion in ordering $1250 in restitution as a condition of probation).
Appellant also cites Hernandez v. State, 268 S.W.3d 176, 184 (Tex. App.—Corpus Christi 2008, no pet.), and Jaenicke v. State, 109 S.W.3d 793, 795-96 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd), arguing that these Texas courts have held that fundamental error in punishment, such as a failure to consider the full range of punishment, can be raised under certain circumstances for the first time on appeal. But as we noted in Williams (where, once again, this same argument was raised), neither case applies here. Williams, 2013 WL 5988448, at *2. Hernandez concluded that a defendant could complain for the first time on appeal "about a trial court's refusal . . . to consider the full range of punishment—so long as the trial judge's conduct is so egregious as to deem the judge biased on the matter of punishment." 268 S.W.3d at 184. Jaenicke discussed an accused's due process right to a "neutral and detached judicial officer" and stated that a court's arbitrary refusal to consider the entire range of punishment would constitute a denial of due process. 109 S.W.3d at 796. In this case, appellant does not allege the trial judge was biased against her or that the judge refused to consider the full range of punishment. Thus, as we stated in Williams, Hernandez and Jaenicke do not apply. See Williams, 2013 WL 5988448, at *2. We conclude appellant did not preserve her complaint for appellate review.
Additionally, even if we assume appellant's complaint was preserved, she was charged with aggravated robbery, a first-degree felony punishable by imprisonment for life or a term of not more than ninety-nine years or less than five years, and a fine not exceed $10,000. See TEX. PENAL CODE ANN. §§ 29.03(b), 12.32. "We give a great deal of discretion to a trial judge's determination of the appropriate punishment in any given case." Foster v. State, 525 S.W.3d 898, 911 (Tex. App.—Dallas 2017, pet. ref'd) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)). Generally, as long as a sentence is within the proper range of punishment, we will not disturb it on appeal. Foster, 525 S.W.3d at 911. We also note that the objectives of the Texas Penal Code include "deterrence and punishment as necessary to prevent the likely recurrence of criminal behavior." Id. Appellant fails to show how the trial court's assessment of a ten-year sentence, which was near the lower end of the punishment range, instead of placing her on community supervision constituted an abuse of discretion. See id.
We overrule appellant's issue and we affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
180290F.U05
JUDGMENT
On Appeal from the 195th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F18-56614-N.
Opinion delivered by Justice Myers. Justices Schenck and Carlyle participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 30th day of March, 2020.