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

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