Opinion
Nos. 04-04-00457-CR, 04-04-00458-CR
Delivered and Filed: April 6, 2005. DO NOT PUBLISH.
Appeal from the 216th Judicial District Court, Bandera County, Texas, Trial Court Nos. 3440-02 3458-02, Honorable Stephen B. Ables, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Defendant, Beth Ann Abney, entered open pleas of no contest to forgery and theft. The court assessed punishment at eighteen months' confinement, respectively, both sentences to run concurrently, and a fine of $250 for each offense. Defendant's court-appointed appellate attorney filed a brief containing one arguable issue, but concluding that this appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978). The arguable issue is that defendant's sentence is grossly disproportionate to the gravity of the charged offenses, and constitutes cruel and unusual punishment under the United State Constitution. Counsel's brief meets the requirements of Anders and he has provided defendant with a copy of the brief and advised her of her right to review the record and file a pro se brief. Defendant has not done so. Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex.App.-San Antonio 1996, no pet.). As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by timely request, objection, or motion stating the grounds for the ruling the complaining party desired with sufficient specificity to make the trial court aware of the complaint. See Tex.R.App.P. 33.1(a); see also Solis v. State, 945 S.W.2d 300, 301 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). Without proper preservation, even constitutional error may be waived. See Curry v. State, 910 S.W.2d 490, 497 (Tex.Crim.App. 1995) (holding that the constitutional right to be free from cruel and unusual punishment may be waived). Because defendant did not object to the alleged severity of her punishment or to the alleged disproportionality of the sentences, she has not preserved her complaint for appellate review. Solis, 945 S.W.2d at 301-02. We have reviewed the record and counsel's brief. We agree that the appeal is frivolous and without merit. The judgments of the trial court are affirmed. Furthermore, we grant the motion to withdraw. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.); Bruns 924 S.W.2d at 177, n. 1.