                         NUMBER 13-17-00330-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


DELIZA MENDOZA,                                                          Appellant,

                                             v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 105th District Court
                         of Nueces County, Texas.


                       MEMORANDUM OPINION
          Before Justices Rodriguez, Contreras, and Benavides
              Memorandum Opinion by Justice Benavides

      By one issue, appellant Deliza Mendoza appeals her convictions for aggravated

assault and retaliation, a second-degree and third-degree felony respectively. See TEX.

PENAL CODE ANN. §§ 22.02, 36.06 (West, Westlaw through 2017 1st C.S.). Mendoza

alleges her sentence amounted to cruel and unusual punishment and was grossly

disproportionate. We affirm.
                                   I.     BACKGROUND

       In 2014, Mendoza was charged by indictment with two counts of aggravated

assault and two counts of retaliation and pleaded guilty to all four counts. See id. The

trial court sentenced her to ten years’ deferred adjudication probation.

       In 2016, the State filed its first amended motion to adjudicate.       Prior to any

hearings on the first motion, the State filed its second amended motion to adjudicate.

The allegations in the second motion to adjudicate included the following:            (1)(a)

Mendoza committed the offense of tampering with a witness, see id. § 36.05 (West,

Westlaw through 2017 1st C.S.); (1)(b), (c) she committed aggravated assault, see id. §

22.02; (1)(d), (e) she committed criminal mischief in the amount of more than $750 but

less than $2500, see id. § 28.03 (West, Westlaw through 2017 1st C.S.); (1)(f) she

committed the offense of resisting arrest, see id. § 38.03 (West, Westlaw through 2017

1st C.S.); (8)(a)(b)(d) she failed to pay court costs, fines, and a monthly supervision fee;

(10)(d), (d), (d) she failed to attend anger management class; and (11)(b) she failed to

complete community service hours.

       At the revocation hearing, the State presented evidence from Eva De La Garza,

Mendoza’s probation officer; Luis Villagomez, the Corpus Christi Police officer who cited

her for resisting arrest, see id.; Benecio (Benny) Cabrera, one of the complainants in the

alleged aggravated assault, see id. § 22.02; and Ruby Telemontes, the complainant in

one of the criminal mischief allegations, see id. § 28.03. Mendoza testified in her own

defense.




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      De La Garza testified that Mendoza had a large past-due balance with probation

and rarely made payments as required. In addition to the monetary allegations, De La

Garza stated that Mendoza had completed no community service hours or anger

management classes as ordered. De La Garza said Mendoza explained that she had

thyroid cancer and was having issues with her daughter.            She never brought

documentation or medical excuses from her physician asking to excuse her from certain

requirements of probation. De La Garza agreed that Mendoza did report as ordered to

probation and had negative urinalysis tests.

      Officer Villagomez explained he was called out in reference to an assault. On

arrival, Officer Villagomez realized Mendoza, the reporting party, was the suspect for

whom other officers were searching. Officer Villagomez placed Mendoza under arrest,

and she requested medical treatment.       After the medical staff cleared her, Officer

Villagomez and his partner attempted to take Mendoza to the city jail. Mendoza began

fighting them and resisted arrest by placing her leg in the wheel well of Officer

Villagomez’s vehicle and throwing herself on the ground. Additional officers were called

to assist them, and Mendoza was finally loaded into Officer Villagomez’s police vehicle.

Upon arriving at the city jail, Mendoza proceeded to spit on items in the front seat of

Officer Villagomez’s vehicle.

      Cabrera testified regarding the aggravated assaults alleged in the motion to

adjudicate. Cabrera stated that Mendoza had dated his father. Cabrera had taken his

father and grandmother, Delia, to work, and when he arrived back at the home, Mendoza

was sitting in the living room. There was damage to the front and back doors of the


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home. Cabrera picked up his grandmother and the landlady and returned to the home.

He stated when they entered the home through the back door, Mendoza confronted them

holding a knife. Cabrera explained she was waving the knife, making stabbing motions

at them. Also, there was extensive damage to a television inside the home. Cabrera

and Mendoza got into a verbal altercation, and when Cabrera went into a bedroom and

closed the door to get away from Mendoza, she stabbed the door with the knife. Cabrera

testified that he feared for his safety and that of the women based on Mendoza’s behavior.

After Mendoza calmed down, she allowed Cabrera to walk out of the room and leave the

house.

      Telemontes testified that Mendoza took a hammer to the back windshield and trunk

of her BMW vehicle. Telemontes explained that when Mendoza was hitting her vehicle,

Telemontes, Delia, and two minor children were inside the vehicle. Telemontes stated

while Mendoza caused over $4000 in damages, her family was able to repair the damage

for $300.

      Mendoza testified that while she knew she owed money to probation, she could

not work due to her thyroid cancer. She also stated she had a doctor’s excuse for not

performing the community service hours.         Regarding the aggravated assault with

Cabrera, she stated she was listed on the lease for the home, Cabrera was not, and she

wanted Cabrera to leave because she had found illegal drugs in his room. Mendoza also

stated that she was never going to stab Cabrera. Mendoza claimed she did not destroy

Telemontes’s vehicle and did not resist arrest. However, Mendoza did agree with the

State that she put the “nicks” in the door of the home with a knife when Cabrera was in


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the room.

       The State abandoned allegation (1)(a). After hearing the evidence, the trial court

found allegations (1)(b), (e), (f); (8)(a), (b), (d); (10)(d), (d), (d); and (11)(b), (b) true. The

trial court found the remaining allegations not true, and adjudicated Mendoza’s deferred

adjudication probation.        The trial court sentenced Mendoza to twenty years’

imprisonment on the aggravated assault counts and ten years’ imprisonment on the

retaliation counts in the Texas Department of Criminal Justice–Institutional Division.

This appeal followed.

                                II.     EXCESSIVE SENTENCING

       By her sole issue, Mendoza argues that the trial court’s sentence of imprisonment

constituted a constitutionally excessive sentence.

       A.      Applicable Law

       The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST.

amend. VIII.      Even though within the range permitted by law, a sentence may

nonetheless be disproportionate to the gravity of the offense. See Ex parte Chavez, 213

S.W.3d 320, 323–24 (Tex. Crim. App. 2006).

       To preserve error for appellate review, the complaining party must present a timely

and specific objection to the trial court and obtain a ruling. TEX. R. APP. P. 33.1(a). A

party's failure to specifically object to an alleged disproportionate or cruel and unusual

sentence in the trial court or in a post-trial motion waives any error for the purposes of

appellate review. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);


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Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd)

(“[I]n order to preserve for 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 grounds for the

ruling desired.”).

       B.     Discussion

       Generally, punishment assessed within the statutory range is not subject to a

challenge for excessiveness. Lawrence v. State, 420 S.W.3d 329, 333 (Tex. App.—Fort

Worth 2014, pet. ref’d). When community supervision is revoked, the trial court may

generally impose any punishment within the range authorized by statute. See id. When

reviewing excessiveness in a case in which the trial court has revoked probation, we do

not weigh the sentence against the gravity of the violations of the community supervision,

but rather the gravity of the initial offense to which the appellant pleaded guilty. See id.;

Buerger v. State, 60 S.W.3d 358, 365–66 (Tex. App.—Houston [14th Dist.] 2001, pet.

ref’d) (holding that appellant’s sentence rests upon adjudication of guilt for crime alleged,

not appellant’s violation of community supervision requirements that led to revocation).



       Having reviewed the record, we note that appellant did not object to an alleged

disproportionate or cruel and unusual sentence in the trial court or in a post-trial motion.

See TEX. R. APP. P. 33.1(a); Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston

[14th Dist.] 2010, pet. ref’d).     Mendoza’s counsel did address the court prior to

sentencing and state that he did not agree with the State’s request for the maximum


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sentence because the allegations were not that egregious.                     However, following the

determination of sentencing by the trial court, counsel made no objection.1 Accordingly,

appellant has waived any error for purposes of appellate review. See Rhoades, 934

S.W.2d at 120; Noland, 264 S.W.3d at 151. Mendoza's sole issue is overruled.

                                          III.    CONCLUSION

        We affirm the judgment of the trial court.



                                                                          GINA M. BENAVIDES,
                                                                          Justice

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

Delivered and filed the
2nd day of August, 2018.




        1 Additionally, Mendoza wrote a letter requesting this Court grant her a “change of venue” so that

she may receive “due process, a fair chance at an appeal, and to appointed counsel.” However, there is
no indication that this was received or presented to the trial court as a motion for new trial. See Clark v.
State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012); Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App.
2009).
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