Opinion filed February 16, 2017




                                        In The


          Eleventh Court of Appeals
                                      __________

                                  No. 11-16-00076-CR
                                      __________

                  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


                     MEMORANDUM OPINION
      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).
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 of sentence 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.




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