                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00031-CR



            MISTI EVE WOOTEN, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 115th District Court
                Upshur County, Texas
                Trial Court No. 18032




      Before Morriss, C.J., Burgess and Stevens, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION
           Misti Eve Wooten pled guilty to possession of, with intent to deliver, methamphetamine, a

Penalty Group One controlled substance, in an amount of four or more grams, but less than 200

grams. 1 She was subsequently sentenced by the trial court to fifty years’ imprisonment and

assessed a $2,000.00 fine.          On appeal, Wooten challenges the sufficiency of the evidence

supporting her guilty plea and asserts that her sentence was grossly disproportionate to the crime

for which she was convicted in violation of the Eighth Amendment to the United States

Constitution and Article I, Section 13, of the Texas Constitution.              Because we find that

(1) sufficient evidence supports Wooten’s guilty plea, and (2) Wooten has not preserved her

grossly-disproportionate-sentence complaint, we will affirm the trial court’s judgment.

(1)        Sufficient Evidence Supports Wooten’s Guilty Plea

           Before taking Wooten’s plea, the trial court confirmed that she understood that she had

been indicted for intentionally and knowingly possessing, with intent to deliver, methamphetamine

in an amount of four grams or more but less than 200 grams, that it was a first-degree felony, and

that her punishment ranged from five to ninety-nine years and a fine of up to $10,000.00. The trial

court also confirmed that Wooten understood the stipulation of evidence that had been filed with

the trial court. In the signed and sworn stipulation of evidence, Wooten judicially confessed that

           [a]ll of [the] matters and things set forth and alleged in the Indictment are true and
           correct in that on the 6th day of January, 2018, in the Count of Upshur and State
           of Texas, I, MISTI EVE WOOTEN,

               did then and there intentionally and knowingly possess, with intent to
               deliver, a controlled substance listed in Penalty Group One of the Texas

1
    TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d).

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           Controlled Substances Act, namely, methamphetamine, in an amount
           of four grams or more but less than 200 grams, including any
           adulterants and dilutants;

as charged in the Indictment.

       The stipulation of evidence was approved by the trial court and filed with the papers in this

cause on the same day as the hearing. No other evidence of Wooten’s guilt was introduced at the

hearing. The trial court accepted Wooten’s plea and found her guilty of the charged offense.

       A judgment of conviction may not be rendered in a felony case based on

a plea of guilty “without sufficient evidence to support the same.” Menefee v. State, 287 S.W.3d

9, 13 (Tex. Crim. App. 2009) (quoting TEX. CODE CRIM. PROC. ANN. art. 1.15). Article

1.15 requires that the defendant’s guilt be established by “evidence in addition to, and independent

of, the plea itself.” Baggett v. State, 342 S.W.3d 172, 175 (Tex. App.––Texarkana 2011, pet.

ref’d) (quoting Menefee, 287 S.W.3d at 14). A plea of guilty to the charges in the indictment is

not equivalent to “confessing to the truth and correctness of the indictment.” Menefee, 287 S.W.3d

at 15. Nevertheless, the evidence that will support a guilty plea may take many forms. Id. at 13.

A sworn statement by the defendant acknowledging that the allegations against her are true and

correct will support a guilty plea, “so long as such a judicial confession covers all of the elements

of the charged offense.” Id.

       The judicial confession in this case specifically covered all of the elements of the charged

offense.   See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d). Since Wooten’s sworn

judicial confession was sufficient to support her guilty plea, we find that sufficient evidence

supported Wooten’s guilty plea. We overrule Wooten’s first issue.

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(2)    Wooten Did Not Preserve Her Grossly-Disproportionate-Sentence Complaint

       In her second issue, Wooten complains that her fifty-year sentence was grossly

disproportionate to the crime for which she was convicted. To preserve a complaint for our review,

a party must first present the trial court a timely request, objection, or motion stating the specific

grounds for the desired ruling if not apparent from the context of the request, objection, or

motion. TEX. R. APP. P. 33.1(a)(1). Also, the trial court must have ruled on the request, objection,

or motion, either expressly or implicitly, or the complaining party must have objected to the trial

court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2).

       An appellant claiming a disproportionate sentence is not excused from the error

preservation requirement. See Stewart v. LaGrand, 526 U.S. 115, 119, (1999) (appellant waived

Eighth Amendment complaint); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);

Duren v. State, 87 S.W.3d 719, 732 (Tex. App.—Texarkana 2002, pet. denied). Thus, “[a]

constitutionality challenge based on application to the defendant’s case cannot be raised for the

first time on appeal.” Fluellen v. State, 104 S.W.3d 152, 167 (Tex. App.—Texarkana 2003, no

pet.) (citing Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990); Smith v. State, 10

S.W.3d 48, 49 (Tex. App.—Texarkana 1999, no pet.)); see Garcia v. State, 887 S.W.2d 846, 861

(Tex. Crim. App. 1994).

       In this case, Wooten did not raise a disproportionate-punishment complaint when the trial

court imposed her sentence, in a motion for new trial, or in any other type of post-verdict motion.

Consequently, Wooten has forfeited her complaint that her sentence was grossly

disproportionate. See Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet.

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ref’d). As a reviewing court, we should not address the merits of an issue that has not been

preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g)

(per curiam); Sample v. State, 405 S.W.3d 295, 300 (Tex. App.—Fort Worth 2013, pet.

ref’d). Since Wooten has not preserved this complaint for our review, we overrule her second

issue.

         We affirm the judgment of the trial court.




                                              Josh R Morriss III
                                              Chief Justice

Date Submitted:         August 1, 2019
Date Decided:           August 2, 2019

Do Not Publish




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