Opinion filed February 16, 2017

In The

Eleventh Court of Appeals 

__________

No. 11-16-00076-CR

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ELIDA VEGA TERRAZAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 70th District Court

Ector County, Texas

Trial Court Cause No. A-37,474

M E M O R A N D U M O P I N I O N

Elida Vega Terrazas appeals from a judgment adjudicating her guilt for the 

offense of retaliation. In two issues, Appellant contends that her punishment of 

confinement for a term of ten years constituted cruel and unusual punishment. We 

modify the trial court’s judgment to delete an impermissible fine. As modified, we 

affirm.

Background Facts

Appellant entered a guilty plea in February 2012 for the third-degree felony 

offense of retaliation. See TEX. PENAL CODE ANN. § 36.06(a)(1)(B) (West 2016). 
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The trial court deferred a finding of guilt and placed her on deferred adjudication 

community supervision for a term of six years. In January 2016, the State filed a 

motion to adjudicate guilt and revoke community supervision based upon a single 

allegation: that Appellant violated the terms and conditions of her community 

supervision by committing the offense of terroristic threat - family violence. 

The trial court heard the motion to adjudicate on March 17, 2016. The State 

offered evidence that Appellant broke into her son’s RV and threatened his 

girlfriend. The trial court found the State’s allegation to be “true,” and it adjudicated 

Appellant guilty of retaliation. The trial court orally pronounced Appellant’s 

sentence at confinement for a term of ten years in the Institutional Division of the 

Texas Department of Criminal Justice. Although the trial court’s judgment of 

conviction also assessed Appellant’s punishment at confinement for ten years, it 

additionally assessed a fine of $415.

Analysis

In two issues, Appellant argues that the punishment assessed constitutes cruel 

and unusual punishment. She appears to be arguing in her first issue that her 

punishment of confinement for ten years was cruel and unusual because she had not 

committed any other offenses for an eight-year period from the date of the original 

offense until the commission of the subsequent offense, including the four-year 

period while she was on deferred adjudication community supervision. In her 

second issue, she asserts that her punishment was excessive and disproportionate to 

both the original offense of retaliation and the new offense of terroristic threat. 

Appellant cites Solem v. Helm in support of her arguments. See Solem v. Helm, 463 

U.S. 277, 290–91 (1983).

We note at the outset that Appellant made no objection to her sentence in the 

trial court, either at the time of sentencing or in any posttrial motion, on any grounds, 

nor did she ever lodge an objection, under constitutional or other grounds, to the 
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alleged disparity, cruelty, unusualness, or excessiveness of the sentence. The State 

contends that Appellant has waived her complaints in the absence of an objection in 

the trial court. We agree. A disproportionate sentence claim must be preserved for 

appellate review. See TEX. R. APP. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 

120 (Tex. Crim. App. 1996). 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). Therefore, Appellant has 

failed to preserve error and has waived her complaint on appeal. See id.; Curry v. 

State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (Eighth Amendment issues are 

forfeited if not raised in the trial court); Solis v. State, 945 S.W.2d 300, 301–02 (Tex.

App.—Houston [1st Dist.] 1997, pet. ref’d) (holding that a claim of grossly 

disproportionate sentence in violation of Eighth Amendment was forfeited by failure 

to object).

Notwithstanding Appellant’s waiver, we find that Appellant’s sentence did 

not constitute cruel and unusual punishment. In reviewing a trial court’s sentencing 

determination, “a great deal of discretion is allowed the sentencing judge.” 

Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We will not disturb 

a trial court’s decision as to punishment absent a showing of abuse of discretion and 

harm. Id. 

The Eighth Amendment prohibits sentences that are “grossly 

disproportionate” to the offense for which the defendant has been convicted.

Bradfield v. State, 42 S.W.3d 350, 353 (Tex. App.—Eastland 2001, pet. ref’d) (citing 

Harmelin v. Michigan, 501 U.S. 957 (1991)). However, “[o]utside the context of 

capital punishment, successful challenges to the proportionality of particular 

sentences [will be] exceedingly rare.” Solem, 463 U.S. at 289–90 (alterations in 

original) (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)). When a sentence 

falls within the range of punishment provided by the legislature, it is generally not 
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“grossly disproportionate” to the offense committed. See, e.g., Jordan v. State, 495 

S.W.2d 949, 952 (Tex. Crim. App. 1973). The statutory range of punishment for a 

third-degree felony is confinement “for any term of not more than 10 years or less 

than 2 years.” PENAL § 12.34(a) (West 2011). In addition to imprisonment, an 

individual adjudged guilty of a third-degree felony may be punished by a fine not to 

exceed $10,000. Id. § 12.34(b). Appellant does not argue that her sentence is not 

within the range that the legislature has provided.

Even if a sentence falls within the statutory punishment range, the sentence 

may violate the Eighth Amendment if it is grossly disproportionate to the offense or 

sentences in other similar offenses. See Bradfield, 42 S.W.3d at 353. To evaluate 

the proportionality of a sentence, the first step is for us to make a threshold 

comparison between the gravity of the offense and the severity of the sentence. Id.

When analyzing the gravity of the offense, we examine the harm caused or 

threatened to the victim or society and the culpability of the offender. See, e.g.,

Hooper v. State, No. 11–10–00284–CR, 2011 WL 3855190, at *3 (Tex. App.—

Eastland Aug. 31, 2011, pet. ref’d) (mem. op., not designated for publication) (citing 

Solem, 463 U.S. at 291–92). Only if the sentence is grossly disproportionate to the 

offense do we then compare Appellant’s sentence with the sentences received for 

similar crimes in this jurisdiction or sentences received in other jurisdictions. 

Bradfield, 42 S.W.3d at 353–54.

The limited facts in the record regarding Appellant’s retaliation offense show 

that Appellant pleaded guilty to striking Deanna Hoyer in the face in retaliation for 

or on account of the status of Hoyer as a person who had reported the occurrence of 

a crime. Appellant was placed on community supervision, but it was revoked 

because she threatened to commit a violent offense against Nina Thompson.

Additionally, Appellant wrote a letter to her probation officer wherein she stated that 

she would beat up Thompson again if she got out of prison and lived near her. Thus, 
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Appellant’s original offense involved actual physical violence, and her subsequent 

offense and conduct involved threats of physical violence. Accordingly, the gravity 

of the offenses is serious. 

Appellant also contends that her sentence is disproportionate because she had 

been on community supervision since February 2012, without incident, up until 

January 2016. However, we do not consider time served on a term of community 

supervision in determining the proportionality of punishment for the original charge. 

Krumboltz v. State, 945 S.W.2d 176, 177 (Tex. App.—San Antonio 1997, no pet.)

(citing TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23(a) (West Supp. 2016)); see 

Sullivan v. State, 975 S.W.2d 755, 756 (Tex. App.—Corpus Christi 1998, no pet.).

Having considered the nature of the charged offense and the actions that led 

to the revocation of Appellant’s deferred adjudication community supervision, we 

conclude that her ten-year sentence, which falls within the statutory punishment 

range, is not grossly disproportionate to the offense. Consequently, we need not 

compare Appellant’s sentence with the sentences received for similar crimes in this 

or other jurisdictions.

1 See Solem, 463 U.S. at 292. Appellant’s two issues are 

overruled.

Impermissible Fine

In our review of the record, we note that there is a variation between the oral 

pronouncement ofsentence and the written judgment. The judgment includes a fine 

of $415. When the trial court revoked Appellant’s community supervision, 

adjudicated her guilt, assessed her punishment, and orally pronounced the sentence 

in open court, the trial court did not mention a fine. The trial court was required to 

pronounce the sentence in Appellant’s presence. See CRIM. PROC. art. 42.03; 

Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). When there is a 

 

1

In addition to not preserving the proportionality issue in the trial court, Appellant did not submit 

any evidence pertaining to sentences for similar crimes in this or other jurisdictions.
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variation between the oral pronouncement of sentence and the written judgment, the 

oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328–29 (Tex. Crim. 

App. 1998); see also Taylor, 131 S.W.3d at 500–02 (explaining the distinction 

between regular community supervision, in which sentence is imposed but 

suspended when a defendant is placed on community supervision, and deferred 

adjudication community supervision, in which the adjudication of guilt and the 

imposition of sentence are deferred). Because the trial court did not mention any 

fine when it orally pronounced Appellant’s sentence and because we have the 

necessary information, we modify the trial court’s judgment to delete the fine. See 

Taylor, 131 S.W.3d at 502; Cerna v. State, No. 11-14-00362-CR, 2015 WL 

3918259, at *2 (Tex. App.—Eastland June 25, 2015, no pet.) (mem. op., not 

designated for publication).

This Court’s Ruling

We modify the judgment of the trial court to delete the $415 fine. As 

modified, we affirm the judgment of the trial court. 

JOHN M. BAILEY 

JUSTICE

February 16, 2017

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.