Opinion
No. 05-08-00060-CR
Opinion Filed December 22, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F98-54695-JI.
Before Justices WRIGHT, O'NEILL, and LANG.
OPINION
Pablo A. Sierra waived a jury and pleaded guilty to aggravated assault with a deadly weapon. The trial court deferred adjudicating guilt, placed appellant on ten years' community supervision, and assessed a $750 fine. The State later moved to adjudicate guilt, alleging appellant committed two new offenses. After a hearing, the trial court granted the motion, adjudicated appellant guilty, and assessed punishment at thirteen years' imprisonment. In three points of error, appellant contends the sentence constitutes cruel and unusual punishment, and the trial court abused its discretion in sentencing him to a prison term. We affirm the trial court's judgment. In his first two points of error, appellant contends the sentence constitutes cruel and unusual punishment, in violation of the United States and Texas Constitutions. See U.S. Const. Amend. VIII, XIV; Tex. Const. Art. I, § 13. Appellant argues the sentence is grossly disproportionate because he never intended to compel prostitution or commit a sexual assault of a child offense, and his relationship with a minor female was based upon her deception about her true age. In his third point of error, appellant contends the trial court abused its discretion by sentencing him to prison because the sentence violates the objectives of rehabilitation in the penal code and is not necessary to prevent recurrence of his offenses. The State responds that appellant failed to preserve his complaints for appellate review, the sentence is not disproportionate to the offense and circumstances, the sentence lies within the statutory range, and any potential relief would be limited to reassessment of punishment. Appellant did not complain about the sentence either at the time it was 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. Moreover, there is no evidence the sentence is cruel or unusual, and it is within the statutory punishment range for the offense. See Tex. Penal Code Ann. § 12.33 (Vernon 2003); Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd). We conclude the trial court did not abuse its discretion in assessing a thirteen-year sentence. We overrule appellant's three points of error. We affirm the trial court's judgment.