Geralynn Louise Delaney v. State

Opinion issued January 31, 2008                                                                 

                                                                                                             






 







In The

Court of Appeals

For The

First District of Texas





NOS. 01-06-00251-CR

          01-06-00252-CR

          




GERALYN LOUISE DELANEY MUSTAFA, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause Nos. 1043510 and 906801





MEMORANDUM OPINION

          In appellate cause number 01-06-00251-CR, appellant, Geralyn Louise Delaney Mustafa, appeals from a judgment for the state jail felony of theft for which she was sentenced to six months’ confinement in a state jail facility. See Tex. Penal Code Ann.§ 31.03(e)(4)(D) (Vernon Supp. 2007). Appellant also appeals a judgment in appellate cause number 01-06-00252-CR for the second degree felony of theft for which she was sentenced to two years’ confinement in the state penitentiary and a $750 fine. See Tex. Penal Code Ann. § 31.03(c) (Vernon Supp. 2007); Id. § 12.35(a) (Vernon Supp. 2007) . In two issues, appellant contends that the trial court abused its discretion by sentencing her to confinement rather than to community supervision. We conclude that by failing to object in the trial court to her sentences, appellant has not preserved her appellate challenges. We affirm the trial court’s judgments.

Background

          Appellant was indicted in trial cause number 906801 for an August 2001 theft of clothing valued between $1,500 and $20,000 dollars, an offense that carried a punishment range as a second degree felony due to the inclusion of prior convictions as punishment enhancement allegations. In 2002, appellant pleaded guilty with an agreed plea bargain for punishment of ten years’ community supervision, $750 fine, 90 days in jail, and other conditions.

          While on the community supervision, appellant was indicted in trial cause number 1043510 for theft of plant containers that occurred September 2005. The new charge carried the punishment range of a state jail felony because the value of the plant containers was under $1,500 dollars and the indictment alleged two prior felony convictions for thefts. The State used this charge of theft of plant containers as the basis to file a motion to revoke the community supervision, and also alleged violations for failure to pay supervision and laboratory fees, as directed under the terms of the probation.

          Appellant pleaded guilty to the theft of the plant containers without an agreed punishment recommendation. Also without an agreed recommendation, appellant pleaded true to the allegations in the motion to revoke the community supervision. After admonishing appellant regarding the consequences of her plea of guilty and her plea of true, the trial court accepted the pleas. Appellant waived her right to have a court reporter record the pleas.

          At a sentencing hearing several months later, the trial court found appellant guilty of the theft of the plant containers and sentenced her to six months in the state jail. That same day, the trial court found true the allegations in the motion to revoke the community supervision and sentenced appellant to two years in the penitentiary and assessed a $750 fine. The trial court ordered the sentences to run concurrently. The trial court certified that appellant had the right of appeal in each of the cases because the sentences were not the result of plea-bargains. No objections to the court’s sentences were made, nor did appellant file a motion for new trial or any post-conviction motions.           After we received the appeal, we abated the appeal to have the trial court conduct a hearing to determine whether medical records that were admitted at the time of sentencing were still available. The abatement was lifted after we received the records. The medical records show that appellant was a patient receiving psychological counseling and medication for a diagnosis of bipolar disorder. According to the psychologist’s report, appellant was remorseful with a desire to change past behavior. Sentencing Decision

          Contending that the record shows that she is mentally ill, appellant asserts in her two issues that the trial court abused its discretion by sentencing her to confinement rather than to community supervision for each of the cases. Having pleaded guilty and true to the allegations, appellant does not challenge the sufficiency of the evidence to support the trial court’s decision to find her guilty of the offenses. We also note that appellant does not contend that the sentences, which are the statutory minimum periods for confinement for each of the offenses, are cruel or unusual. Rather, appellant challenges only the trial court’s discretion to sentence her to confinement over community supervision. Appellant asserts community supervision was more appropriate so that she could continue to receive treatment for her mental illness that “caused her to commit the crimes for which she was convicted.” Citing to Flournoy v. State, appellant contends we should circumvent the trial court’s decision because the record speaks for itself since “everything was submitted by paper.” See Flournoy v. State, 589 S.W.2d 705 (Tex. Crim. App. 1979).

          It is well established that almost every right, constitutional and statutory, may be waived by failing to object. Jacoby v. State, 227 S.W.3d 128, 130 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (citing Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986)). To preserve error for appellate review, a timely and reasonably specific objection, followed by an adverse ruling, is required. Tex. R. App. P. 33.1(a); Steadman v. State, 31 S.W.3d 738, 742 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (citing Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991)). The failure to specifically object to an alleged disproportionate sentence in the trial court or in a post-trial motion waives any error. See, e.g., Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); Steadman, 31 S.W.3d at 742; Solis, 945 S.W.2d at 301. Here, appellant neither objected to the alleged abuse of discretion in the determination of the sentences in the trial court, nor did she raise the issues in post-trial motions; she is raising this complaint for the first time on appeal. Her argument, therefore, is not preserved for review. See Tex. R. App. P. 33.1(a). We overrule appellant’s two issues.

 Conclusion

          We affirm the trial court’s judgments.

 

 

Elsa Alcala

Justice

Panel consists of Justices Taft, Keyes, and Alcala.

Do not publish. See Tex. R. App. P. 47.2(b).