Opinion
No. 05-05-00611-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 DO NOT PUBLISH.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. F04-01628-QT. Affirmed.
Before Justices WHITTINGTON, WRIGHT, and MAZZANT.
OPINION
Robin Michael Humphreys pleaded guilty before a jury to aggravated sexual assault of a child under fourteen years. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2004-05). The jury found appellant guilty and assessed punishment at thirty-five years' imprisonment. In two issues, appellant contends the sentence constitutes cruel and unusual punishment. We affirm. Appellant argues that the thirty-five-year sentence is grossly disproportionate to the crime and violates both the federal and state constitutional 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, and, alternatively, that the sentence is not cruel and unusual. We agree that the complaint is not preserved. Appellant did not complain about his 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, the thirty-five-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). We resolve appellant's issues against him. We affirm the trial court's judgment.