Opinion
No. 05-08-00251-CR
Opinion Filed November 25, 2008. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F04-71825-UW.
OPINION
The trial court granted the State's motion to adjudicate Andre Andrews, found him guilty of aggravated robbery, and sentenced him to five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. In one point of error, appellant complains the trial court violated the objectives of the penal code by imposing a sentence of confinement. We affirm the trial court's judgment. In July 2004, the trial court found the evidence substantiated appellant's guilt of aggravated robbery, deferred finding him guilty, placed appellant on community supervision for ten years, and assessed a $2500 fine. On December 22, 2004, the State moved to adjudicate appellant guilty, in part, because he had failed to report. The State withdrew its motion on August 17, 2007 after appellant alleged he had not reported due to problems with his paperwork. The trial court modified the terms and conditions of appellant's community supervision to order him to serve thirty days in jail. On January 10, 2008, the State again moved to adjudicate appellant, alleging he had again failed to report, did not pay probation fees, and did not perform community service as directed. In February 2008, the State and appellant entered into a plea agreement wherein appellant would enter a plea of true to failure to report and to perform community service. The State and appellant, however, did not agree to any punishment. On February 19, 2008, the trial court held a hearing on the State's motion to adjudicate. Appellant testified and acknowledged that he had not reported as alleged in the December 2004 motion to adjudicate because the probation office never got the paperwork from the court. Appellant testified that after the August hearing, he knew he had to report, but did not. During the time from his last appearance in court, he had deaths in the family. And, he had money in his jail account to pay back probation fees and had turned himself in because he had a job and children to support. His job was driving trucks and he could not report twice a week because it would conflict with his being on the road for three weeks. Appellant asked for mercy because he now had his "head on" straight and wanted to be in "complete compliance with probation." In a single point of error, appellant claims the trial court erred in incarcerating him instead of continuing him on probation. Appellant argues because he "was a strong candidate for continued probation," the trial court "was at variance with the [Penal Code's] punishment objectives." Appellant also contends that he need not have brought this to the trial court's attention because his testimony made the trial court aware of the "probation department's errors," this complaint is of "constitutional infirmity," and this Court may address this issue for the first time on appeal. The State responds that because appellant never objected when the trial court assessed his sentence, his claim is not properly before the trial court. Furthermore, the only relief appellant is entitled to would be limited to the trial court's determining the proper punishment. We review the trial court's assessment of a sentence for an abuse of discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984). Even constitutional rights may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). The record shows that appellant did not object to his sentence as violating his constitutional rights at the time it was imposed. See Tex. R. App. P. 33.1(a). Although appellant filed a motion for new trial, it did not raise the issue he asserts on appeal. See id.; Castaneda, 135 S.W.3d at 723. Appellant concedes his sentence is within the statutory range of punishment for an aggravated robbery. He also asserts we may address his issue on the basis of a disproportionate sentence and cruel and unusual punishment. Appellant, however, only argues that he was "a strong candidate for regular probation" and the trial court could have sentenced him to regular probation. We disagree. The trial court may not order community supervision after a finding of guilt for aggravated robbery. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(F) (Vernon Supp. 2008). Appellant has not preserved his sole issue for appeal. We affirm the trial court's judgment.