## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 12 - 00113 - CR

AMANDA TRUJILLO APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM THE 355 TH DISTRICT COURT OF HOOD COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- Introduction A ppellant Amanda Trujillo pled guilty to solicitation to commit capital murder , received deferred

- adjudication community supervision, violated its terms and was revoked, adjudicated guilty, and sentenced to 40 years’ confinement

. In her sole complaint on a ppeal , she contends that 40 years is grossly disproportionate to the offense she committed and , therefore, cruel and unusual

1 See Tex. R. App. P. 47.4.2 in violation of the E ighth A mendment of the United States Constitution and a rticle
1 , s ection 13 of the Texas c onstitution. We aff irm

. Background Facts and Procedural History On October 19, 2004, Appellant pled guilty to solicitation to commit capital murder and received ten years ’ deferred

- adjudication community supervisi on (probation)

. On February 27, 2012 , she pled true to having violated the conditions of her probation and t he trial court adjudicated h e r guilty of solicitation to commit capital murder and sentenced her to 40 years ’ confinement. Appellant did not object to the sentence when it was pronounced. She filed , but did not present to the trial court, a motion for a new trial on March 14, 2012, nor did she request a hearing . T he trial cou rt did not rule on the motion. Dis cussion In general, to preserve a complaint for appellate review the record must show that the compla int was made to the trial court by a timely request, objection, or motion that states the specific grounds for the desired ruling

. Tex. R. App. P. 33.1(a)(1); Laboriel

- Gui ty v. State , 336 S.W.3d 754, 756 (Tex. App.

— Fort Worth 2011 , pet ref’d ) ( citing Layt on v. State , 280 S.W.3d 235, 238

– 39 (Tex. Crim. App. 2009 ) ). This case is no exception. See Kim v. State , 283 S.W.3d 473, 475 (Tex. App.

— Fort Worth 2009, pet. ref’ d) ; accord Rhoad e s v. State , 934 S.W.2d 1 13, 120 (Tex. Crim. App. 1996). “It is axiomatic th at errors that are asserted on the part of the trial court must generally be brought to the trial court’s attention in order to afford the trial3 court an opportunity to correct the error, if any.” Kim , 283 S.W.3d at 475. In Kim , this c ourt held that the a ppellant failed to preserve his complaint about the alleged disproportionality of his seven

- year sentence for burglary because he did not raise it at the time t he sentence was imposed, or in a motion for a new trial. Id

. Likewise, here, Appellant did no t object t o the sentence on the ground that it

was disproportionate to the offense , or on any other ground, at the time it was imposed, nor did she make such a complaint in her motion for a new trial. See Delacruz v. State , 167 S.W.3d 904, 90 5

– 06 (Tex. Ap p. –– Texarkana 2005, no pet.). Accordingly, Appellant has forfeited her claim for review. See Means v. State , 347 S.W.3d 873, 874 (Tex. App.

–– Fort Worth 2011 , no pet.); Kim , 283 S.W.3d at 475

– 76

. Moreover, e ven had Appellant preserved her complaint, her se ntence is with in the legislatively prescribed limits and not otherwise grossly disproportional to the gravity of the offense. As a general matter, the fixing of prison terms for specific crimes is “properly within the province of legislatures, not courts. ” Harmelin v. Michigan , 501 U.S. 957, 998, 111 S. Ct. 2680, 2703 (1991) ( quoting Rummel v. Estelle , 445 U.S. 263, 275

– 76, 100 S. Ct. 1133, 1140 (1980) )

. “Determinations about the nature and purposes of punishment for criminal acts implicate difficult and enduring questions respecting the sanctity of the individual, the nature of law, and the relation between law and the social order .” Id

. Accordingly, a sentence that falls within the legislatively determined range of punishment is generally not grossly d isproportionate. See Means , 347 S.W. 3d at4 875; Kim , 283 S.W.3d at 475

– 7 6 ( quoting Ex parte Chavez , 213 S.W.3d 320,
323

– 24 (Tex. Crim. App. 2006) ) (“Subject only to a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth Amendment gross

- dispropor tionality review, a punishment that falls within the legislatively prescribed range, and that is based upon the sentencer’s informed normative judgment, is unassailable on appeal.”) )

. Even were we to reach the merits of Appellant’s complaint , we are not
pe rsuaded that her sentence is grossly disproportionate to the gravity of the offense of solicitation to commit capital murder. In determining whether sentences are grossly disproportionate, this court, in accord with the majority of Texas courts, has previ ously adopted a three

- step proportionality analysis. See Moore v. State , 54 S.W.3d 529, 541

– 42 (Tex. App.

— Fort Worth 2001 , pet. ref’d).
F irst , we make a threshold comparison of the gravity of the offense against the severity of the sentence. S e e M cGrude r v. Puckett , 954 F.2d 313, 316 (5th Cir.) , cert. denied , 506 U.S. 849 (1992) . We are to judge the gravity of the offense in light of the harm caused or threatened to the victim or society, and the culpability of the offender. Solem v. Helm , 463 U.S. 277 , 292, 103 S. Ct. 3001, 3011 (1983). Only if we infer that the gravity of the offense is grossly disproportionate to the sentence imposed will we then consider the remaining factors by comparing the sentence received to (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions. McGruder , 954 F.2d at 316; see Harmelin , 501 U.S. at 1004

– 05, 111 S. Ct. at5 2707 (Kennedy, J., plurality op.) (discussing gross disproportionality). In this case, Appellan t pled guilty to solicitation to commit capital murder

––
a first degree felony offense

. In Texas, first degree felonies are punishable by imprisonment for life or for any term of not more than 99 years or less than five

. Tex. Penal Code Ann. § § 12.32 , 15.0 3 (West 2011 ) ; § 19.03 (West Supp. 2012)

. Thus, the 40

- year sentence was well within the range of punishment set by the legislature. Additionally, the harm threatened to a victim and society by solicitation of capital murder is great. Finally , Appellant has faile d to present any evidence that may have mitigated her perceived culpability concerning th is offense and for which a counterpoint to the sentence could be given consideration . W e conclude that even if Appellant had preserved h er claim for review, the severity of h er sentence is not grossly disproportionate to the gravity of h er offense. See McGruder , 954 F.2d at 316; Moore , 54 S.W.3 d at 541

– 42.6 Conclusion Having held that Appellant failed to preserve he r complaint at the trial level , and that eve n were we to reach the merits , the complaint would fail, we overrule her sole point on appeal and affirm the trial court’s judgment.

ANNE GARDNER JUSTICE
PANEL: GARDNER, WALKER, and MEIER , JJ. DO NOT PUBLISH Tex. R. App

. P. 47.2(b )
DELIVERED: June 2 0, 2013