Alejandra Labra v. State ( 2008 )

Affirmed and Memorandum Opinion filed May 27, 2008

Affirmed and Memorandum Opinion filed May 27, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00514-CR

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ALEJANDRA LABRA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1080621

M E M O R A N D U M   O P I N I O N

Appellant, Alejandra Labra, appeals her felony conviction for delivery of a controlled substance.  After pleading guilty, the trial court sentenced appellant to 40 years= imprisonment.  In two issues, appellant contends: (1) a fatal variance between the amended indictment and her judicial confession renders the evidence insufficient to uphold her conviction; and (2) the trial court=s assessment of 40 years= imprisonment constitutes cruel and unusual punishment.  We affirm.     

BACKGROUND

Appellant was charged with felony delivery of a controlled substance, cocaine, in the amount of at least 400 grams.  The original indictment alleged that appellant delivered the cocaine to AT. Williamson.@  Thereafter, the State filed a motion to amend the indictment to substitute AT. Williamson@ with AAerial Rios.@  The motion was granted.  The State, however, amended the indictment with AAeriol Rios,@ interchanging the Aa@ with an Ao@ in the first name.   

Appellant entered into a plea of guilty without an agreed recommendation from the State as to punishment.  In her written plea, appellant made the judicial confession that she unlawfully delivered the cocaine to Aerial Rios.  After the trial court found appellant guilty, it assessed punishment at 40 years= imprisonment and a $500.00 fine. Appellant raises two issues for review: (1) the evidence is insufficient to sustain her conviction because there is a fatal variance between the amended indictment and her judicial confession; and (2) the trial court=s assessment of 40 years= imprisonment rises to the level of cruel and unusual punishment.

VARIANCE

In appellant=s first issue, she contends that there is a fatal variance between the amended indictment (Aeriol) and her judicial confession (Aerial), rendering the evidence insufficient to support her conviction.  The State contends that appellant has waived this issue because she did not object before the trial court.  We agree.  Appellant admitted that she committed the offense as alleged by the State, but did not complain about the misspelling of the recipient=s name.  Because appellant failed to bring the variance to the attention of the trial court, no error is preserved for review.  See Martin v. State, 541 S.W.2d 605, 608 (Tex. Crim. App. 1976); Hilson v. State, 751 S.W.2d 279, 280-81 (Tex. App.CHouston [1st Dist.] 1988, no pet.).  We overrule appellant=s first issue. 

CRUEL AND UNUSUAL PUNISHMENT

In her second issue, appellant contends that the trial court=s assessment of forty years= imprisonment constitutes cruel and unusual punishment because the sentence is disproportionate to the crime committed.  The record contains no objection by appellant challenging the constitutionality of her sentence.  We conclude that appellant waived error by failing to assert an objection on the ground that her sentence constitutes cruel and unusual punishment.  See Tex. R. App. P. 33.1(a)(1)(A); Benson v. State, 224 S.W.3d 485, 498 (Tex. App.CHouston [1st Dist.] 2007, no pet.).  We overrule appellant=s second issue.

We affirm the trial court=s judgment.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed May 27, 2008.

Panel consists of Chief Justice Hedges and Justices Fowler and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).