Opinion
No. 05-05-00571-CR
Opinion issued November 21, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F98-50445-VT. Affirmed as modified.
Before Justices WHITTINGTON, WRIGHT, and MAZZANT.
OPINION
Christopher Lamont Briggs waived a jury trial and entered a non-negotiated guilty plea to possession with intent to deliver cocaine in an amount of four grams or more but less than two hundred grams. See Tex. Health Safety Code Ann. § 481.112(a), (d) (Vernon 2003). The trial judge deferred adjudicating guilt, placed appellant on community supervision for six years, and assessed a $500 fine. The State later moved to proceed with adjudication of guilt, alleging appellant violated the conditions of his community supervision. Appellant pleaded true to the allegations. The trial judge found the allegations true, adjudicated appellant guilty, and sentenced him to forty years' imprisonment. In four issues, appellant contends the sentence violates the United States and Texas Constitutions, the trial judge erred in sentencing him, and the judgment should be modified to include the date of the amended motion to adjudicate guilt and the conditions the trial judge found appellant to have violated. As modified, we affirm the trial court's judgment. In his first two issues, appellant argues the forty-year sentence is grossly disproportionate to the offense and violates both the United States and Texas Constitutions' prohibitions against cruel and unusual punishment. See U.S. Const. Amend. VIII; Tex. Const. Art. I § 13. The State responds that appellant has not preserved his complaint. Appellant did not complain about his sentence either at the time it was imposed or in a 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, the forty-year sentence is within the statutory punishment range. See Tex. Pen. Code Ann. § 12.32 (Vernon 2003); Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd). Accordingly, we overrule his first two issues. In his third issue, appellant argues the trial judge's imposition of a forty-year sentence was arbitrary, capricious, and had no rational relation to the offense committed. Appellant contends the trial judge assessed the sentence based on appellant's actions after he was placed on probation and not on the underlying facts of the offense. The State responds that nothing in the record indicates the judge based his sentence on improper considerations. At the hearing on the State's motion to proceed with adjudication of guilt, appellant testified he was pleading true to all of the allegations in the motion because they were true. Appellant admitted he failed to report for over a year and that he had a positive urinalysis for marijuana. Appellant claimed he had smoked the marijuana because it was his birthday, but did not use drugs at any other time. Appellant initially testified he had not committed any new offenses while on probation, then later admitted he had been charged with evading arrest. Appellant asked the judge to continue his probation. Appellant's wife and mother also asked the judge to continue appellant on probation. After the trial judge found the allegations true and adjudicated appellant's guilt, appellant did not offer any additional testimony during the punishment phase. Before pronouncing the sentence, the judge questioned appellant about the first motion to proceed with adjudication that had been filed in January 2000, appellant's completion of a chemical dependency program while serving 180 days in jail, and the positive urinalysis for marijuana that occurred after appellant was released from that program. Although the judge discussed appellant's conduct while on community supervision, nothing in the record shows the judge arbitrarily assessed punishment or failed to base the sentence on the underlying first-degree felony offense. See Tex. Health Safety Code Ann. § 481.112(a), (d). We overrule appellant's third issue. In his fourth issue, appellant claims the trial court's judgment does not indicate the conditions of community supervision that were violated and upon which motion to adjudicate the trial judge based his decision. The State concedes that the judgments should be modified to show the conditions of community supervision violated and the amended motion to adjudicate. We agree and sustain appellant's fourth issue. We modify the trial court's judgment to show the judge found that appellant violated conditions (b), (d), (h), (j), (k), and (m) as alleged in the March 17, 2005 amended motion to proceed with adjudication of guilt. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.