Opinion
No. 01-09-00048-CR
Opinion issued November 19, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).
On Appeal from the 338th District Court, Harris County, Texas, Trial Court Cause No. 1094552.
Panel consists of Justices JENNINGS, HIGLEY, and SHARP.
MEMORANDUM OPINION
Appellant, Keeshaunar Michelle Cantley, was indicted for injury to a child by omission resulting in serious bodily injury. After a plea of guilty to the court without an agreed punishment recommendation, appellant was found guilty and the court assessed her punishment at thirty years confinement. In a single issue, appellant asserts that the sentence imposed violates her Eighth Amendment right to be free from cruel and unusual punishment. We determine whether this issue was preserved for review on appeal. Finding that it was not, we affirm.
TEX. PENAL CODE ANN. § 22.04(a)(1), (b)(1) (Vernon Supp. 2009).
FACTS
When Ms. Cantley discovered her 21-month-old daughter, Aanya, cold and unresponsive at home in bed early one morning, she called 911, and the child was taken to a nearby hospital where she was pronounced dead. The cause of death was undetermined. One of the police officers who responded to the 911 call noticed bruising on the child's right eyelid and both sides of the child's stomach and back. According to Ms. Cantley's account to the police at the hospital, she and Aanya had fallen asleep watching television in Ms. Cantley's bedroom. Ms. Cantley awoke, noted the child asleep, carried her to the child's own bed, and returned to sleep. Ms. Cantley later awoke to her alarm at 4:35 a.m., went to change the child's diaper, and noted that the girl's leg was cold. Ms. Cantley tried to revive the child and then called 911. The only event that Ms. Cantley speculated could have caused the child's injury was a fall from a dining room chair, but, according to Ms. Cantley, Aanya got up after the fall, did not cry, and then climbed into another chair. After an autopsy, the cause of death was determined to be multiple blunt traumas to the abdomen, resulting in a lacerated liver and pancreas. When informed of the cause of death, Ms. Cantley maintained that the complainant's injuries were from the fall from the chair. Child Protective Services ("CPS") had previously investigated two prior incidents involving appellant's children, including alleged physical abuse of Aanya by Carl Robinson, appellant's live-in boyfriend, when Aanya was 18 months old. Although asked if Robinson was present that night, Ms. Cantley never admitted that he had been present. The following day, after being told that capital murder charges against her had been accepted, Ms. Cantley admitted that Robinson had been at the house the night of Aanya's injuries and she advised officers to speak to Robinson about Aanya's death. Ms. Cantley explained that she had been afraid to mention this earlier because there had been a "CPS order" not to have Robinson near her children. A few months later, Ms. Cantley gave a recorded interview to police, in which she related that Robinson was awake when she awoke that morning, that the cover seemed oddly neat over the child, and that when she called for Robinson about Aanya's condition, he hesitated, and then yelled at appellant before he performed cardio-pulmonary resuscitation on the child. She also explained that, after she called 911, she remembered that Robinson was not supposed to be there and feared that her son would be taken from her, and that Robinson had told her that he was going to get help, but drove off, and never returned. Ms. Cantley was subsequently indicted for intentionally and knowingly causing injury to a child by omission resulting in serious bodily injury. The indictment contained seven paragraphs alleging six different manners and means and the use or display of a deadly weapon. The State abandoned two of the paragraphs charging alternate manners and means as well as the deadly weapon paragraph. The remaining paragraphs, to which Ms. Cantley pleaded guilty, charged her with the omissions of (1) failing to seek proper medical care for the complainant; (2) failing to provide a safe environment for the complainant; (3) failing to protect the complainant from physical abuse; and (4) violating a court order that prohibited Carl Robinson from contact with the complainant. Ms. Cantley pleaded guilty without an agreed punishment recommendation. After admonishing Ms. Cantley, the court accepted her plea and admitted State's exhibit 1, which consisted of Ms. Cantley's waiver of constitutional rights, her agreement to stipulate, and her judicial confession. The trial court then found that there was sufficient evidence to find Ms. Cantley guilty, but withheld a finding of guilt, and reset the case pending a "presentence investigation hearing." Eight months later, the case was reconvened, and the trial court considered the presentence investigation report and heard arguments from the State and Ms. Cantley. The State asked for forty years in prison and the defense asked for community supervision. Ms. Cantley also pleaded true to a separate motion to adjudicate an unrelated forgery offense and the trial court adjudicated Ms. Cantley guilty of the forgery case and found Ms. Cantley guilty of injury to a child. The court assessed Ms. Cantley's punishment at two years state jail confinement for the forgery and thirty years confinement in prison for the injury to a child. Ms. Cantley's counsel made no objection to either sentence and filed no motion for new trial. Ms. Cantley timely filed her pro se notice of appeal.PRESERVATION OF COMPLAINT
In her sole point of error, appellant contends that the trial court's imposition of a thirty year sentence, although within the range of punishment provided for this offense, violates the prohibition against excessive sentences contained in the Eighth Amendment to the United States Constitution. Appellant acknowledges that Texas courts have held that a sentence that is assessed within the range of punishment prescribed by the Legislature is not excessive, cruel, or unusual, but points out that a narrow exception to this rule exists when the sentence assessed is grossly disproportionate to the crime. See Solem v. Helm, 463 U.S. 277, 288, 103 S. Ct. 3001, 3008-09 (1983). The State responds that this issue was not preserved for our review because no specific objection to the sentence on Eighth Amendment grounds was made to the trial court. The record is devoid of any objections regarding the sentence imposed. Appellant also lodged no complaint on the ground now asserted on appeal that the sentence violated appellant's constitutional rights under the Eighth Amendment or that the sentence was cruel and unusual, excessive, or grossly disproportionate to the offense. Appellant argues on appeal that her "long-standing belief that probation (deferred adjudication) was the appropriate punishment," as expressed in the "context of the `PSI'," coupled with her "`objection' to [the] length of [her] sentence in her pro-se notice of appeal," was sufficient to preserve for appellate review her current complaint that the sentence imposed was grossly disproportionate to the offense and thus violated the Eighth Amendment's prohibition against cruel and unusual punishments. Appellant cites to the general preservation requirements of Texas Rule of Appellate Procedure 33.1 and our opinion in Ajisebutu v. State for support of her contention that she preserved her Eighth Amendment complaint for appellate review. See TEX. R. APP. P. 33.1(a) (Vernon 2003); Ajisebutu v. State, 236 S.W.3d 309 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd).Rule 33.1(a) provides that
[a]s a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that . . . stated the grounds . . . with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context . . . [and] the trial court . . . ruled on the request, objection, or motion . . . or refused to rule . . . and the complaining party objected to that refusal.TEX. R. APP. P. 33.1(a). We note that constitutional rights, including the Eighth Amendment right to be free from cruel and unusual punishment, can be waived by a failure to raise a complaint on specific constitutional grounds in the trial court. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding that complaint of violation of constitutional right to be free from cruel and unusual punishment was forfeited when no objection on this basis was made to trial court); Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) (holding that appellant failed to preserve appellate complaint that sentence was grossly disproportionate, and therefore violative of Eighth Amendment, when no such specific objection to sentence was made at punishment or in motion for new trial); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (stating that "[f]ail[ure] to object in the trial court to an alleged disproportionate sentence waives any error"); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) (holding that, because appellant did not object in trial court to alleged disproportionality of sentence, appellant waived any error). In Ajisebutu, we adhered to this well-established principle, noting that, although no objection was made to his sentence at the appellant's punishment hearing, the appellant had specifically objected that his "punishment . . . [was] excessive and violate[d] the prohibition against cruel and unusual punishment" in his motion for new trial. See Ajisebutu, 236 S.W.3d at 313. We then assumed, without deciding, that the specific objection made by the appellant in his motion for new trial was sufficient to preserve an Eighth Amendment complaint for review on appeal. Id. at 313, 314 n. 4. In the present case, however, appellant did not object on Eighth Amendment grounds, nor did she object that the sentence was "grossly disproportionate," at either the punishment hearing or in a motion for new trial. Her subsequent pro se notice of appeal, which was appropriately directed to the court clerk, not the judge, was not a "complaint made to the trial court by timely request, objection, or motion," did not seek a ruling from the trial court, and did not state the specific grounds of which appellant now complains on appeal. See TEX. R. APP. P. 33.1(a)(1)(A). Appellant's "belief" that deferred adjudication was the appropriate sentence was likewise not a complaint to the trial court. We hold that appellant failed to preserve her complaint for our review. See Rhoades, 934 S.W.2d at 120; Noland, 264 S.W.3d at 152; Wynn, 219 S.W.3d at 61; Solis, 945 S.W.2d at 301. We overrule appellant's sole point of error.