ROSIE WILLIAMS v. THE STATE OF TEXAS--Appeal from 377th District Court of Victoria County

NUMBERS 13-04-459-CR,

13-04-460-CR & 13-04-461-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROSIE WILLIAMS, Appellant,

v.

THE STATE OF  TEXAS, Appellee.

On appeal from the 377th District Court

of Victoria County, Texas.

  MEMORANDUM OPINION[1]

Before Justices Ya ez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

Rosie Lee Williams appeals from three convictions: (1) possession with intent to deliver cocaine;[2] (2) possession of a prohibited substance in a correctional facility;[3] and (3) tampering with physical evidence.[4] By one issue, Williams asserts that the sentences imposed constitute cruel and unusual punishment. We affirm.

I. Background

The trial court admonished Williams regarding the range of punishment for each offense at a pretrial hearing and again at the plea hearing. As to each offense, Williams stated she understood the punishment range. Williams pleaded no contest to the three charges without a plea agreement. The case was tried to the court on both guilt and punishment.[5]

Police officer Jeffrey Lehnert, with the special crimes and narcotics unit of the Victoria police department, testified that Williams was "dealing narcotics." On January 9, 2004, officer Lehnert and another officer arrived at Williams's residence to execute an arrest warrant. Officer Lehnert observed Williams place a plastic bag containing a "substantial amount" of a white powdery substance in her mouth, which action, by his training, led him to believe the substance was cocaine. Concerned she would die, the officers apprehended her and she expelled the substance from her mouth.[6]

Laboratory testing concluded that the substance was 5.08 grams of cocaine, an amount not considered normal for personal use.[7] Incident to Williams's arrest, officer Lehnert found her wallet, containing $660. Williams explained that she had earned the money by babysitting and hairstyling. She further explained that the money was to pay her rent. Officer Lehnert contacted the apartment manager and determined that Williams had already paid her rent for the month of January.

Detective Paul Mauro testified that on December 19, 2003, he participated in a controlled cocaine purchase from Ervin Hargrove, who was accompanied by Williams. Mauro testified he had made several similar purchases from Hargrove. Detective Mauro determined, through a confidential informant, that the cocaine belonged to Williams and Hargrove was the "middle man."

Williams testified on her own behalf. She admitted that on the night she was arrested she had hidden drugs in her body and, thus, took them into the county jail facility. She admitted she sold drugs to earn money. She explained that her parental rights to three of her five children were terminated because of a controlled substance offense and she needed money to maintain an apartment. She testified she successfully completed deferred adjudication community supervision for the prior controlled substance offense.[8] Williams admitted she had consumed controlled substances in the past. On cross-examination, she admitted she sold controlled substances, but denied the cocaine involved in detective Mauro's controlled purchase was hers. She testified she had accompanied Hargrove at the time, but was unaware he would be selling cocaine. She admitted that her daughter was in the apartment when Williams was arrested but her daughter did not "mess with drugs." She admitted she tried to swallow the cocaine at the time of her arrest because she was "afraid to go to jail." Regarding the cocaine she transported into the jail, Williams denied she intended to use or sell it while in jail. She denied that the money seized from her apartment was proceeds from controlled substance sales.

The trial court found that Williams was mentally competent[9] and that her plea was freely and voluntarily made. The trial court accepted Williams's no contest plea and found her guilty of the three offenses. Before imposing punishment, the trial court asked Williams if there was any legal reason why sentence should not be imposed. Defense counsel responded there was not. The trial court assessed punishment at (1) six years in the Texas Department of Criminal JusticeBInstitutional Division and a $1,000 fine for the prohibited substance in a correctional facility and tampering offenses, and (2) eighteen years' imprisonment and a $1,000 fine for unlawful delivery of a controlled substance.[10] The trial court exercised its discretion and ordered the sentences to run concurrently.

II. Cruel and Unusual Punishment

Williams argues that the trial court abused its discretion in assessing a sentence of imprisonment, arguing that such sentence violated her right to be free from cruel and unusual punishment, as provided by the Eighth Amendment of the United States Constitution and Article I, Section 13 of the Texas Constitution because she is mentally challenged, to the degree that she cannot appreciate or understand the penalty.[11] Williams concedes she did not preserve error because she did not object on these grounds at the time of sentencing. She asserts, however, that fundamental error need not be preserved for review.

We note first of all that Williams has cited no authority in support of her state constitutional claims, or explained how that protection differs from that provided by the federal constitution. Williams has therefore forfeited her state constitutional claim. See Narvaiz v. State, 840 S.W.2d 415, 432 (Tex. Crim. App. 1992). In any case, Texas courts make no distinction between Texas and federal constitutional provisions of cruel and unusual punishment, and so our decision under either would be the same. Cantu v. State, 939 S.W.2d 627, 639 (Tex. Crim. App. 1996).

Williams made no objection to her sentence to the trial court, either at the time of sentencing or in any post-trial motion, on any grounds; nor did she ever lodge an objection, under constitutional or other grounds, to the alleged cruel and unusual nature of the sentences. Generally, an appellant may not complain of an error pertaining to his or her sentence or punishment if she has failed to object or otherwise raise error in the trial court. Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.BCorpus Christi 1989, pet. ref=d) (failing to object to sentence as cruel and unusual forfeits error). An accused may waive even constitutional rights. Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002); Jenkins v. State, 912 S.W.2d 793, 815 (Tex. Crim. App. 1995) (op. on reh'g); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). To preserve an error for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. Tex. R. App. P. 33.1(a); see Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000). "All a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Keeter v. State, 2005 Tex. Crim. App. LEXIS 521, at *9 (Tex. Crim. App. April 6, 2005) (citing Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (en banc)).

Because the sentences are within the punishment range and are not illegal, we conclude that the rights Williams asserts for the first time on appeal are not so fundamental as to have relieved her of the necessity of a timely, specific trial objection. See Nunez v. State, 117 S.W.3d 309, 320 (Tex. App.BCorpus Christi 2003, no pet.)[12] (citing Blue, 41 S.W.3d at 131). Thus, by failing to object to the trial court's sentence below, Williams has forfeited her sole issue on appeal.

III. Conclusion

Accordingly, we conclude that Williams forfeited at trial her cruel and unusual punishment claim. See Nunez, 117 S.W.3d at 320; see also Quintana v. State, 777 S.W.2d at 479. We overrule Williams's sole issue. We affirm the judgment and sentence of the trial court.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 28th day of July, 2005.

[1] See Tex. R. App. P. 47.2, 47.4

[2] See Tex. Health & Safety Code Ann. _481.112(a), (d) (Vernon 2003). In trial court cause No. 04-3-20,778-D, appeal No. 13-04-459-CR, the indictment alleged that, on or about January 9, 2004, Williams possessed, with intent to deliver, four grams or more but less than two hundred grams of cocaine, a first degree felony. A first degree felony offense is punishable by imprisonment in the institutional division for life or for any term of not more than ninety-nine years or less than five years and a fine not to exceed $10,000. Tex. Pen. Code Ann. _12.32(a),(b) (Vernon 2003).

[3] See Tex. Pen. Code Ann. '38.11 (Vernon Supp. 2004-05). In trial court cause No. 04-3-20,788-D, appeal No. 13-04-460-CR, the indictment alleged that, on or about January 11, 2004, Williams possessed cocaine while in the Victoria County Jail, a penalty group 1 offense and, thus, a third degree felony. A third degree felony offense is punishable by imprisonment in the institutional division for any term of not more than ten years or less than two years and a fine not to exceed $10,000. Tex. Pen. Code Ann. _12.34(a),(b) (Vernon 2003).

[4] See Tex. Pen. Code Ann. '37.09(d)(1) (Vernon 2003). In trial court cause No. 04-3-20,789-D, appeal No. 13-04-461-CR, the indictment alleged that, on or about January 9, 2004, Williams altered or concealed a bag of cocaine with intent to impair its availability as evidence, a third-degree felony.

[5] The trial court admonished Williams of her right to remain silent and later stated: "So, we're also dealing with the punishment phase testimony, as well as guilt phase testimony."

[6] The trial court admitted in evidence the State's photograph of the expelled substance.

[7] Officer Lehnert testified that, after securing a search warrant, officers found no paraphernalia in the house that would lead him to believe Williams was a user of cocaine. He added that the amount seized was enough to make crack cocaine. A further search of the premises yielded a shoe box containing additional cash.

[8] The trial court pointed to court documents showing she had been unsuccessfully discharged from a restitution center, and she had numerous arrests for violating the terms and conditions of probation for, among other things, positive drug screens.

[9] The trial court pronounced that he reviewed Williams's exhibit, a psychological report, admitted in evidence and "considered that in mitigation of what should be done in this case." Dated January 7, 2003, the report shows Williams was evaluated for purposes of proceedings involving her children while in foster care. The report shows an "overall general intellectual functioning in the Mild Retardation range (55-69)."

[10] Court documents executed by Williams show her plea of no contest to the offense of delivery of a controlled substance (cocaine).

[11] Williams does not argue that any of the sentences are outside the maximum range of punishment, which would be unauthorized by law and therefore illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).

[12] Overruled in part on other grounds, Resendez v. State, 160 S.W.3d 181, 186 (Tex. App.BCorpus Christi 2005, no pet.).