GERMAINE ASTORGA v. THE STATE OF TEXAS

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Court of Appeals of Texas, Corpus Christi-Edinburg.

GERMAINE ASTORGA, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-16-00649-CR

Decided: April 27, 2017

Before Justices Contreras, Benavides and Longoria

MEMORANDUM OPINION

Appellant Germaine Astorga challenges her sentence of twenty years' imprisonment for the offense of aggravated assault with a deadly weapon in a single issue. See TEX. PENAL CODE ANN. § 22.02(a) (West, Westlaw through 2015 R.S.). We affirm.

I. BACKGROUND

This case began when appellant brandished a knife during a fight with her pregnant sister and threatened to cut the fetus out of her womb. The State charged her by indictment with aggravated assault with a deadly weapon, a second-degree felony. See id. Appellant pled guilty pursuant to a plea agreement. The trial court received appellant's plea, deferred its adjudication of guilt, and placed her on community supervision for six years.

The State subsequently filed four separate motions to revoke appellant's probation and proceed to adjudication. In its first three motions, the State alleged that appellant committed multiple violations of the conditions of her supervision including, but not limited to, failing to report to her supervision officer, failing to attend outpatient treatment, failing to pay various supervision fees, failing to observe her curfew, and failing to appear in court for her annual review. The trial court disposed of the State's first three motions by continuing appellant on community supervision but imposing various sanctions, including ordering her to spend several periods of time in jail.

In its fourth motion, the State alleged that appellant violated the conditions of her supervision by committing the offenses of driving while intoxicated, possession of marijuana, possession of drug paraphernalia, and resisting arrest. The State further alleged that appellant failed to pay various fees and participate in a victim impact panel. The State abandoned the charge of driving while intoxicated and appellant pled “true” to all the remaining allegations. The trial court continued appellant on probation and ordered her to enter the Special Needs Unit of a Substance Abuse Felony Punishment Facility. Appellant timely filed a motion for rehearing alleging that she had new evidence regarding her “physical condition and abilities.” After holding a hearing on the motion, the court granted the motion, revoked appellant's probation, adjudicated her guilty, and assessed punishment at twenty years' imprisonment in the Texas Department of Criminal Justice—Institutional Division. This appeal followed.

II. CRUEL AND UNUSUAL PUNISHMENT

Appellant argues in a single issue that her sentence of twenty years' imprisonment constitutes cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution. See U.S. CONST. amend VIII. The State responds that appellant waived this issue by failing to preserve it in the trial court.

We agree with the State. To preserve an error for appellate review, a party must make a timely and specific objection or motion in the trial court and obtain an adverse ruling. TEX. R. APP. P. 33.1(a); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). Failure to preserve error in the trial court can waive an issue on appeal, including most constitutional issues. Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014). The Texas Court of Criminal Appeals and this Court have both consistently held that an issue alleging that a sentence constitutes cruel and unusual punishment is subject to the error-preservation requirement. See Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); Trevino v. State, 174 S.W.3d 925, 927–28 (Tex. App.—Corpus Christi 2005, pet. ref'd).

Appellant candidly admits that she did not raise this issue in the trial court but argues that we should review it nonetheless. She asks us to conclude that a waiver of the protection against cruel and unusual punishment is different “from the waiver of other criminal rights because such waivers do not benefit the individual or society.” See Jeffrey L. Kirchmeier, Let's Make A Deal: Waiving the Eighth Amendment by Selecting A Cruel and Unusual Punishment, 32 CONN. L. REV. 615 (2000). By this argument, appellant effectively asks us to disregard the contrary decisions of the Texas Court of Criminal Appeals. We reject appellant's argument because we are bound to follow the binding precedent of the Texas Court of Criminal Appeals. See Ex parte Hartfield, 442 S.W.3d 805, 817 (Tex. App.—Corpus Christi 2014, pet. ref'd); In re Sanchez, 268 S.W.3d 680, 682 (Tex. App.—Corpus Christi 2008, orig. proceeding). Based on binding precedent from the Texas Court of Criminal Appeals, as well as our own case law, we conclude that appellant has not preserved this issue for review. See Ladd, 3 S.W.3d at 570; Curry, 910 S.W.2d at 497; Trevino, 174 S.W.3d at 927–28. We overrule appellant's sole issue.

III. CONCLUSION

We affirm the trial court's judgment.

NORA L. LONGORIA, Justice