                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00166-CR

AMBER SHOTWELL,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                            From the 54th District Court
                             McLennan County, Texas
                            Trial Court No. 2010-933-C2


                                       ORDER


       Amber Shotwell pled guilty to two counts of sexual assault. TEX. PENAL CODE

ANN. § 22.011 (West 2011). The victim was under the age of 17 at the time of the

assaults.   A jury assessed punishment at four years in prison for each count, and the

trial court cumulated the sentences. Id. § 3.03(b)(2) (West Supp. 2012).

       On July 11, 2013, this Court affirmed the trial court’s judgment signed on May 15,

2012. In doing so, we held that the second issue argued on appeal did not comport with

the issue raised in appellant’s motion for new trial.
        In her motion for rehearing, appellant adamantly contends that the motion for

new trial contained a typographical error in quoting the phrase “cruel or unusual” from

the Texas Constitution and instead quoted it as “cruel and unusual” as is found in the

United States Constitution. She thus argues we should decide the issue of whether

there is a distinction in the level of protection between the two Constitutions.

        We have carefully reviewed the motion for new trial and the full record of the

hearing held on the motion. Based upon the broadest reading we can reasonably give

those two items, we cannot conclude the trial court was in any way placed on notice

that the issue being argued was that the Texas Constitution’s clause provided a greater

protection against cruel “or” unusual punishment than did the United States

Constitution against cruel “and” unusual punishment.

        Accordingly, we deny appellant’s motion for rehearing.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Motion for rehearing denied
Order issued and filed October 17, 2013




Amber Shotwell v. The State of Texas                                               Page 2
