                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00113-CR


AMANDA TRUJILLO                                                    APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                        MEMORANDUM OPINION 1

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                                  Introduction

      Appellant 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and was revoked, adjudicated guilty, and sentenced to 40 years’ confinement.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 appeal, she contends that 40 years is grossly

disproportionate to the offense she committed and, therefore, cruel and unusual




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      See Tex. R. App. P. 47.4.
in violation of the Eighth Amendment of the United States Constitution and article

1, section 13 of the Texas constitution. We affirm.

                   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 supervision

(probation).   On February 27, 2012, she pled true to having violated the

conditions of her probation and the trial court adjudicated her 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. The trial court did not rule on the motion.

                                    Discussion

      In general, to preserve a complaint for appellate review the record must

show that the complaint 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-Guity v. State, 336 S.W.3d 754, 756 (Tex. App.—

Fort Worth 2011, pet ref’d) (citing Layton 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 Rhoades v. State, 934

S.W.2d 113, 120 (Tex. Crim. App. 1996).

      “It is axiomatic that 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 trial


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court an opportunity to correct the error, if any.” Kim, 283 S.W.3d at 475. In Kim,

this court held that the appellant 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 the sentence was imposed, or in a motion for a new trial.

Id. Likewise, here, Appellant did not object to 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, 905–06 (Tex. App.––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, even had Appellant preserved her complaint, her sentence is

within 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 disproportionate. See Means, 347 S.W.3d at


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875; Kim, 283 S.W.3d at 475–76 (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-disproportionality

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

persuaded 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 previously 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).

First, we make a threshold comparison of the gravity of the offense against the

severity of the sentence. See McGruder 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. at


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2707 (Kennedy, J., plurality op.) (discussing gross disproportionality).

      In this case, Appellant 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, 15.03 (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 failed to present any

evidence that may have mitigated her perceived culpability concerning this

offense and for which a counterpoint to the sentence could be given

consideration. We conclude that even if Appellant had preserved her claim for

review, the severity of her sentence is not grossly disproportionate to the gravity

of her offense. See McGruder, 954 F.2d at 316; Moore, 54 S.W.3d at 541–42.




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                                   Conclusion

      Having held that Appellant failed to preserve her complaint at the trial level,

and that even 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 20, 2013




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