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holding that failure to raise excessiveness of sentence at punishment hearing or in motion for new trial preserved nothing for review
Summary of this case from Miller v. StateOpinion
No. 05-03-01609-CR
Opinion Filed August 18, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F00-70161-Plj. Affirmed.
Before Justices FITZGERALD, RICHTER, and LANG.
OPINION
Jason Lee McCall appeals his sentence of fourteen years' imprisonment upon adjudication of guilt contending the sentence was excessive. For the reasons stated below, we affirm the trial court's judgment and appellant's sentencing term. I. Factual and Procedural Background Appellant pleaded guilty to the charge of aggravated assault with a deadly weapon. The trial court deferred adjudicating appellant's guilt, placed appellant on ten years' community supervision, and assessed a $300 fine. The court further ordered that McCall serve 180 days; participate in the Substance Abuse Felony Punishment Facility ("SAFPF"); and participate in a drug/alcohol continuum of care treatment plan after release from the SAFPF program. The trial court made no finding of the use or exhibition of a deadly weapon either orally or in the judgment. The State later moved to proceed with an adjudication of guilt, alleging appellant violated several conditions of probation. During the hearing on the State's motion to adjudicate guilt, appellant pleaded true to all of the State's allegations. Appellant and his wife Rebecca were the only two witnesses to testify at the hearing. Rebecca, the complainant in the underlying aggravated assault case, told the trial court that she did not want appellant to go to jail. Appellant told the trial court that he stopped reporting to his probation officer because appellant lived with his family, which was a direct violation of the conditions of his probation, and he did not want the probation officer to discover that fact. Appellant admitted that he had been lying when he said he was living with another probationer. Additionally, appellant admitted to failing to pay his probation fees. Appellant testified that he did not have any disciplinary issues while serving his time or in any of the substance abuse programs and he was successfully discharged from the program in 2001. The court granted the State's motion, adjudicated appellant guilty, and sentenced him to fourteen years' imprisonment II. Excessiveness of the Sentence In his sole issue on appeal, appellant challenges the fourteen years' imprisonment term as excessive in light of the administrative violations of his probation and the testimony presented at appellant's revocation hearing. The State contends appellant waived his complaint that the sentence was excessive. A defendant may not appeal the trial court's decision to adjudicate guilt. See Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim. App. 2001). However, he may appeal issues related to his sentencing. Id. In order to present a complaint for appellate review, the record must show that the complaint was made to the trial court with a timely objection. Tex.R.App.P. 33.1(a)(1). Even constitutional rights may be waived by the failure to object. See Saldano v. State, 70 S.W.3d 873, 889 (Tex.Crim.App. 2002); Smith v. State, 721 S.W.2d 844, 855 (Tex.Crim.App. 1986). This includes the constitutional right against cruel and unusual punishment . See Jackson v. State, 989 S.W.2d 842, 844 (Tex. App.-Texarkana 1999, no pet.). Appellant failed to object regarding his sentence to the court. Thus, nothing is preserved for appellate review. See Rhoades v. State, 934 S.W.2d 113, 121 (Tex.Crim.App. 1996). Even if appellant had properly preserved his issue, he has not shown us how the imposition of a fourteen-year prison sentence constitutes cruel and unusual punishment. He asserts simply that since he substantially complied with the terms and conditions of his "probation," the degree of punishment he received is excessive. That position has been deemed to be without merit by this Court. See Fielding v. State, 719 S.W.2d 361, 363 (Tex. App.-Dallas 1986, pet. ref'd). Further, appellant acknowledges that his fourteen-year sentence is within the two-to-twenty-year range authorized for the offense. See Tex. Pen. Code Ann. § 12.33(a) (Vernon 2003), § 22.02(b) (Vernon Supp. 2004-05). Therefore, the punishment is not prohibited as cruel and unusual. See Fielding, 719 S.W.2d at 363. Appellant neither objected at the time he was sentenced nor raised his complaint in a motion for new trial. Accordingly, we decide appellant's issue against him. We affirm the trial court's judgment.