Opinion issued March 17, 2016

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 14
- 01035
- CR

——————————— JULIA JUAREZ , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the 230th District Court

Harris County, Texas Trial Court Ca se No. 1422760

MEMORANDUM OPINION
After a ppellant, Julia Juarez, without an agreed punishment recommendation from the State, pleaded guilty to the felony offense of manslaughter, 1 t he trial court

1 See T EX

. P ENAL C ODE A NN

. § 19.04 (Vernon 2011).2

assessed her punishment at confinement for fourteen years. In two issues, appellant
contends that the tr ial court erred in considering extraneous

- offense evidence when sentencing her and imposing a sentence disproportionate to the underlying offense

. 2
We affirm. Background After a ppellant pleaded guilty, t he trial court re set the case for a pre
- sentence investigation (“PSI”) hearing and ordered the preparation of a PSI report. According
to the PSI report , a ppellant drove a car recklessly in to the opposite lane of traffic , causing a head

- on collis ion with a truck carrying four people. At the time of impact, appellant’s car was traveling at 81.23 mile s per hour in a forty

- five

- mil e
- per
- hour speed zone. As a result of the collision, t hree people in the truc k sustained injuries and were transported to a hospital. T he complainant, who was a passenger in appellant’s car, died as a result of the collision. Appellant , who sustained serious injuries, was t ransported by life flight to a hospital. T oxicology r esults , contained in the PSI report, reveal that appellant “had a blood alcohol result of 0.04g/100MI and was positive for Benzodiazepines.”
The PSI report also reveals that in Montgomery Count y o n July 18, 2013, two law enforcement officers “observed a sm all black passenger car pass them on the inside lane at a high rate of speed and chang[e] lanes without signaling.” After t he

2 See U.S. C ONST

. amend VIII.3

officers initiated a traffic stop , the driver of the car gave them permission to search

t he car. During their search, the office rs found “a clear see through plastic capsule ” containing “ a crystal like substance,” which they recognized as methamphetamine.
When t he officers searched appellant , who was a passenger in the car, they found
her in possession of a “clear plastic bagg y wi th several of the same type of clear see through capsules

. . . with residue inside of them.” And inside of appellant’s coin purse were “two plastic baggies with residue inside of them” as well.
At the PSI hearing, neither the State nor appellant objected to the admission
into evidence of the PSI report, both sides affirmatively stated that they did not have any additions or deletions to make to the report, and the trial court admitted it into
evidence

. A ppellant then testified that the complainant had been her “best friend” for two years . She explained that she had no memory of what happened on the day
of the collision , having awaken ed in t he hospital after being in a coma for three days.
As a result of the collision , appellant’s pelvis was broken in “six places,” her femur was broken, and she required six surgeries. After s he was released from the hospital

seven to eight days later , she spent four months learn ing to walk again. Appellant
d id not remember drinking on the day of the collision, but she d id not “contest[]”
that the toxicology re sults show that she “ had some alcohol in [her] system.” She explained that she felt “[t]errible , ” did not “mean to cause” the complainant’s death , and “guess[ed ]” that the collision was her fault because she was the person driving

.4

Appellant conceded that, after the collision, she did not contact the complainant’s
mother or the four people in t he truck. Appel lant further admitted that she had “been using drugs for the past several years on and off” and she was “a rrested for possessing meth ” on July 18, 2013, in Montgomery County. Moreover, her dri ver’s license had been “suspended

. . . five times due to repeated [traffic] tickets,” and she had “three speeding ticket[s] on [her driving] record.” Following the part ies’ arguments on punishment, the trial court explained that it was not taking “into consideration” any “information about [appellant] being [out] on bond” in her Montgomery County possession case w hen the collision occurred or “any potential [bond] violat ions” that had been committed by appellant. And the
trial court was “[c]ertainly ” “not even thinking about” anything “that’s not
admissible

. ” The trial court further explained that “what meant the most” to it was appellant’ s driving record, which showed that she had acted “reckless[ly] and without a []regard for the people around [her],” and this was all that the trial court “need[ed] to know.” T he trial court then found appellant guilty , found that she had used a deadly weapon , namely a mo tor vehicle, i n the commission of the offense, and assessed her punishment.5

Appellant then filed a motion for new trial, arguing that “[t]he verdict [was] contrary to the law and evidence.” The record does not reflect that the trial court
ruled on the mot ion, and it was thus overruled by operation of law. 3
Extraneous
- Offense Evidence In her first issue, appellant argues that the trial court erred in considering

extraneous

- offense evidence , i.e., evidence that she “had been charged with possession of a cont rolled substance in Montgomery County, ” when it sentenc ed her
because such evidence may only be considered if established beyond a reasonable
doubt

. In response, the State a sserts that appellant has not preserved this c omplaint for appellate review. 4
In r egard to appellant’s arrest in Montgomery County for possession of a controlled substance, the PSI report , in pertinent part, states: On July 18, 2013, at approximately 7:25 p.m. [,] Lt. J. Buchanan and Deputy Hendrick

. . . observed a small black passenger car pass them on the inside lane at a high rate of speed and chang[e] lanes without signaling. Lt. Buchanan initiated a traffic stop [,] and he observed [that] the vehicle was occupied by two white females. Lt. Buchanan approached the driver , identified as Cassandra Oretegon[,] and the female passenger was identified as [appellant]

. . . . Lt. Buchanan asked [the driver] if she had any narcotics in the vehicle [,] and she stated [that] she didn’t. Lt. Buchanan

3 See T EX

. R. A PP

. P. 21.8(c).
4 A n appellate court should not address the merits of an issue t hat is not preserved for appeal. S ee Wilson v. State , 311 S.W.3d 452 , 473

– 74 (Tex. Crim. App. 2010). Accordingly, we express no opin ion as to whether the trial court actually considered the extraneous

- offense evidence when it sentenced appellant

.6

asked if he could search the veh icle [,] and she stated [that] he could. He asked [appellant] if there were any narcotics in the vehicle [,] and she said no. Lt. Buchanan asked both females if they had anything in their pockets and asked them if they would empty out their pockets and bot h did. Lt. Buchanan searched the vehicle and saw a green wallet lying on the middle console. He looked inside the wallet and saw a clear see through plastic capsule in the wallet with a crystal like substance inside of it.

. . . Lt. Buchanan recognized t he substance to be methamphetamine. He asked the females who owned the green wallet [,] and [the driver] stated [that] she did. [She] admitted [that] the substance found [by Lt. Buchanan] was going to test positive for

“ meth. ” Deputy Hendrick tested the substance [,] and [it] teste d positive for methamphetamine. [The driver] stated she had a baggy inside her bra and a female officer was requested [to come] to the location. Lt. Buchanan searched a red purse which belong [ed] to [the driver] and found [a] m ethamphetamine pipe inside of a black baggy [,] and the black baggy also had methamphetamine residue inside of it. Officer S. Acklin searched [appellant] and found a clear plastic baggy with several of the same type of clear see through capsules in it. Lt

. Buchanan could see residue inside of the capsules. The baggy was found down the front of [appellant’s] pants. [Appellant] was asked what else she had [i] n her possession [,] and she pointed to the back of her pants [, where] Officer Acklin found a small blue coin purse inside of her p ants. Inside the coin purse w[ere] two plastic baggies with residue inside of them. After arriving at the jail, both females were strip searched by a female jailer. Deputy Lara brought Lt. Buchanan a small blue plastic baggy with methamphetamine inside of it [, which was] found inside of [the driver’s] underwear.
It is also noted in t he PSI report that although appellant had been “arrested for
posse ssion of a controlled substance ” in Montgomery County , the case had since been “dismissed.”7

Appellant also testified about her arrest in Montgomery County as follows , in pertinent part : [The State]: You were arrested for possessing meth on July 18th, 2013, in Montgomery County about a couple months before this crash happened, right? [Appellant]: Yes. [Appellant’s Counsel]: Judge, at this point I’d have to object to any line of questioning going into the Montgomery County criminal case. The statute of limitations has not passed. The State

. . . did not refile. The State di smissed. But until the statute of limitations does pass, the State potentially could refile. And so, [appellant] would have a Fifth Amendment right not to answer any questions by the State on the case

. The Court: Overruled. [The State]:

. . . [D]id you possess meth that day? [Appellant’s Counsel]: I’ll object to that specific question, Judge. That amounts to a judicial confession compelled by the State at this point. [The State]: If she wants to invoke her Fifth Amendment right, she can.

. . . . [Appellant’s Counsel]: Judge, as that is comple tely outside the scope of this

-- the sentencing of this case and as the State still could file that8 until the statute of limitations runs, I have advised [appellant] that it is in her interest to not answer a ny questions based on that and to invoke her Fifth Amendment right against self incrimination regarding potential cases that could come from Montgomery County.
The Court: Okay. Well, it’s

-- it’s fine . We will leave it at that. But I will say for purp oses of the record at a sentencing hearing, I think I’m able to take into consideration anything, including un adjudicated offenses. But for the sake of just being careful, I suppose, I will

-- [Appellant’s Counsel]: And, Judge, I agree with you. You abs olutely have that ability to do so. However, [the State] cannot compel that testimony from [appellant].

. . . The Court: And I understand that she has the right to take the Fifth, which is what y’all are doing here. I’m just saying that your initial obj ection to that being

-- I think you said relevance

. . . . [Appellant’s Counsel]: Right.
The Court: And I’m saying it is relevant. But if she wants to take the Fifth, she’s free to do so. (Emphasis added

. )9

To preserve a complaint for our review, a part y must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection,
or motion. T EX
. R. A PP
. P. 33.1(a)(1); Everitt v. State , 407 S.W.3d 259, 262

– 63 (Tex. Crim. App. 2013)

. Even claims involving consti tutional error, including a
claim that a defendant’s due process rights were violated, must be preserved by objection or are waived. Hull v. State , 67 S.W. 3 d 215, 2 16

– 18 (Tex. Crim. App. 2002)

. “The purpose of requiring a specific objection in the trial court is twofold: (1) to inform the trial [court] of the basis of the objection and give [it] the opportunity to rule on it; [ and ] (2) to give opposing counsel the opportu nity to respond to the complaint.” Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009)

. To
preserve error, “ a party must be specific enough so as to ‘ let the trial [court] know
what [s] he wants, why [s] he thinks [her]s elf entitled to it, and do so clearly enough
for the [trial court] to understand h[er] at a time when the trial court is in a proper posi tion to do something about it.’ ” Id. at 3 12

– 13 (quoting Lankston v. State , 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). A party fails to preser ve error when the contention urged on appeal does not comport with the specific complaint made in
the trial court. Lovill v. State , 319 S.W.3d 687, 691

– 92 (Tex. Crim. App. 2009)

.10

Here, we first note that the record shows that a ppellant did not object to t he

contents of the PSI report or to its admission into evidence , and she did not obtain a ruling from the trial court

. See T EX
. R. A PP
. P. 33.1 (a) ; see also Harris v. State , 416 S.W.3d 50, 52 (Tex. App.

— Houston [1st Dist.] 2013, no pet. ) (defendant’s complaint “that the trial court’s consideration of [certain] offenses alleged in [a] PSI was improper” not preserved for appellate review because when “asked by the trial court whether [defendant] had any objection to the admission of the st ate’s presentence investigation report into evidence , ” his counsel replied , “No objection,
Your Honor ” (internal quotations omitted) ). Instead, when the trial court asked appellant whether s he had “ any objections, additions or deletions to the [PSI]
repor t,” her counsel replied, “None from the defense, Your Honor.” Cf. Harris , 416
S.W.3d at 52. In regard to appellant’s own testimony about her arrest in Montgomery County , we note that her counsel did not make her Fifth Amendment and relevance objection s un til after she had already affirmatively responded to the State’s question

as to whether she had been “arrested for possessing meth on July 18th, 2013, in Montgomery County.” See Berry v. State , 233 S.W.3d 847, 856

– 57 (Tex. Crim. App. 2007) (error not preserved where objection “made after [witness] had already testified” about extraneous offense) ; Hitt v. State , 53 S.W.3d 697, 707

– 08 (Tex. App.

— Austin 2001, pet. ref’d ) (“Objections made after questions are asked and11

an swered do not preserve error.”) ; se e also T EX
. R. A PP
. P. 33.1(a) (1) ; Turner v.
State , 805 S.W.2d 423, 431 (Tex. Crim. App. 1991) (“To preserve error for appellate review, the complaining party must make a timely , specific objection.” (emphasis added)).
Moreover , on appeal, appellant has no t advanced a relevance or a Fifth
Amendment challenge as she did in the trial court

. Rather, she now argues that the trial court “violate[d] [her] due process” rights in “consider[ing] , ” for purposes of sentencing , evidence that she “had been charged with possession of a controlled substance in Montgomery County” because the State did not “show [] beyond a
reasonable doubt ” that she committed the offense

. Notably, w here the complaint on appeal does not match the objection made at trial, the proffered compl aint is waived.
See Lovill , 319 S.W.3d at 691

– 92 ; Hitt , 53 S.W.3d at 708. Finally, as noted above, evidence of appellant’s arrest in Montgomery County was contained in the PSI report, w hich was admitted into evidence without objection.
Because evidence about appellant ’s arrest in Montgomery County had previously
been admitted without objection, appellant has waived any complaint that the trial court improperly considered her testimony about her Montgomery County arrest

. Ethington v. State , 819 S.W.2d 854, 858

– 60 (Tex. Crim. App. 1991) (defendant must object each time evidence on particular subject matter offered , unless s he makes12

running or continuing objection or moves court outside presence of jury to consider admissibility of all evidenc e on particular subject matter)

. Accordingly, we hold that appellant did not preserve her complaint that the trial court erred in considering that she “had been charged with possession of a controlled substance in Montgomery County” when it assessed her punishment. 5

Cruel and Unusual Punishment In her second issue, appellant argues that the trial court erred in imposing a sentence “disproportionate to the offense for which she was charged,” resulting in cruel and unusual punishment, because “[a]ppellant w as eligible for probation,” but “received a fourteen year prison sentence.” 6 See U.S. C ONST
. amend. VII I . The

5 We note that , although appellant filed a motion for new trial, the only contention that she made in her motion was that “[t]he verdict [was] contrary to the law and e vidence.” The Texas Court of Criminal Appeals has explained that a claim that “ a verdict was against the law and the evidence” raises only a sufficiency challenge to the evidence and does not present any other complaint. State v. Zalman , 400 S.W.3d 590, 594

– 95 (Tex. Crim. App. 2013). Appellant has not raised a sufficiency challenge on appeal, and she cannot rely on her motion for new trial as preserving her complaint that the trial court erred in considering her Montgomery County arrest when it sentenced her

. 6 Appellant does not assert that her sentence constitutes cruel and unusual punishment in violation of the Texas Constitution, nor does she assert or show that the Texas Constitution provides greater protection than its federal counterpart. See T EX

. C ONST

. art. I, § 13 (providing “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted”). Therefore, we do not consider whether her sentence violates the state constitution. See Black v. State , 26 S.W.3d 895, 896 n.4 (Tex. Crim. App. 2000).13

State asserts that appellant has also not prese rved her Eighth Amendment complaint
for review. The Eighth Amendment of the United States Constitution requires that a criminal sentence be proportionate to the crime for which a defendant has been
convicted. Solem v. Helm , 463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983 )

. In order to preserve for appe llate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. See T E X
. R. A PP
. P. 33.1(a) (1) ; Ladd v. State , 3
S .W.3d 547, 564 (Tex. Crim. App. 1999) (concluding defendant did not preserve cruel and unusual punishment c omplaint for appellate review).
A fter the trial court announced her sentence, appellant did not object , o btain a ruling from the trial court, or raise her Eighth Amendment complaint in her motion
for new trial. 7 See T EX
. R. A PP
. P. 33.1(a); Noland v. State , 264 S.W.3d 144, 151

– 52 (Tex. App.

— Houston [ 1st Dist.] 2007, pet. ref’d) (“[I]n order to preserve for

7 As noted above, appellant, in her motion for new trial, only argued that “[t]he verdict [was] contrary to the law and evidence.” This did not preserve the Eighth Amendment complaint that she now advances on appeal

. See Castaneda v. State , 135 S.W.3d 719, 723 & n.1 (Tex. App.

— Dallas 2003, no pet.) (holding motion for new trial “merely alleg[ing] ‘the verdict [was] contrary to the law and the evidence’ ” does not preserve complaint defendant’s punishment “vi olates the cruel and unusual punishment clause of the Eighth Amendment”); see also Zalman , 400 S.W.3d at 594

– 95.14

appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific gr ounds for the ruling desired.”)

. And appellant concedes in her brief that the “failure to raise an 8th Amendment objection at trial prevents [her from] making any claim on appeal.” However, she
asserts that this Court “ can take note of fundamental error affecting a substantial right alt hough it was not brought to the attention [of] the trial court.”
I n support of her fundamental

- error argu ment, appellant does not provide us with any analysis of the issue and only includes a single citation to “ Texas Rule [] of Evidence 103( b ) ” in her bri ef

. See T EX
. R. E VID
. 103(b) ( “W hen the court hears a party’s objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal

. ”). We , however, assume that she intended to cite rule 103(e), which provides: “In criminal cases, a court may take notice of a fundamental error affecting a substantial right, even if the claim of error was not properly preserved.” Id. 103(e). Regardless, a

ppellant’s argument concerning fundamental error is
ina dequately briefed, and, thus, waived. See T EX
. R. A PP
. P. 38.1(i) ( appellant’s brief
“must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record”); Luc io v. State , 351 S.W.3d 878, 896

– 97 (Tex. Crim. App. 2011) (point of error inadequately briefed “presents15

nothing for review”) ; Young v. State , 425 S.W.3d 469, 4 73

– 74 (Tex. App.

— Houston [1st Dist.] 2012, pet. ref’d ) (fundamental

- error argument inadequately briefed where defendant only provided citation to Texas Rule of Evide nce 103(d) to support argument)

. We note that even if appellant had a dequately briefed her argument , a trial court’s decision to impose a sentence that f a ll s within the applicable statu tory punishment range cannot constitute fundamental error. Young , 425 S.W.3d at 474 (sentence within statutory limits not fundamental error); s ee also T EX
. P ENAL C ODE A NN
. § § 12.33(a) (punishment range for second

- degree felony, imprisonment “for any term of not more than 20 years or less than 2 years”) , 19.04(b) (Vernon 2011) (manslaughter constitutes second

- degree felony offense )

. Conclusion We affirm the judgment of the trial court.

Terry Jennings Justice
Panel consists of Justices Jenni ngs, Higley, and Brown. Do not publish. T EX
. R. A PP
. P. 47.2(b).