Opinion
Nos. 05-03-01213-CR, 05-03-01214-CR
Opinion Filed September 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-48039-Ws and F03-48038-VS. Affirmed.
Before Justices O'NEILL, LANG, and LANG-MIERS.
MEMORANDUM OPINION
Angel Pena Justiz pleaded guilty before a jury to two indictments charging delivery of cocaine in an amount of four grams or more but less than 200 grams. See Tex. Health Safety Code Ann. § 481.112(a), (d) (Vernon 2003). He also pleaded true to one enhancement paragraph in each case. The jury found appellant guilty, found the enhancement paragraphs true, and assessed punishment at fifty-five years' confinement in each case. In two points of error, appellant contends the sentences violate the Eighth Amendment to the United States Constitution and article one, section thirteen of the Texas Constitution. We affirm the trial court's judgments. Appellant argues the jury-assessed sentences are inconsistent with the federal and state constitutional prohibition against cruel and unusual punishment. See U.S. Const. amend. VIII; Tex. Const. art. I, § 13. Appellant maintains the fifty-five-year sentences are grossly disproportionate to the crime and inappropriate to the offender because: (1) appellant, who was a drug user, was a "small fish" in the drug trade who only conducted small sales himself and set up larger sales for others to handle; (2) the majority of appellant's prior convictions were for non-violent drug offenses; and (3) even though appellant had three weapons convictions in Florida, it was common knowledge that weapons are a part of the drug trade for protection only. Appellant did not complain about his sentences either at the time they were imposed or in his motion for new trial. See Tex.R.App.P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda, 135 S.W.3d at 723. Appellant has not preserved his complaint for review. Moreover, punishment assessed within the statutory range is not unconstitutionally cruel and unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd). Appellant's fifty-five-year sentences are within the enhanced punishment range for the offenses. See Tex. Pen. Code Ann. § 12.42(c)(1) (Vernon 2004-05). We overrule appellant's two points of error. We affirm the trial court's judgments.