Opinion
No. 05-03-01010-CR
Opinion Filed January 9, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F98-69429-Qi. Affirmed.
Before Justices MOSELEY, FITZGERALD, and LANG.
MEMORANDUM OPINION
Kevin Fidel Mathis initially pleaded not guilty in front of a jury to the charged offense of aggravated sexual assault of a child younger than fourteen years of age. When the jury could not reach a verdict, the trial court granted a mistrial. Appellant then entered a negotiated nolo contendere plea to the offense. Pursuant to the plea agreement, the trial court deferred adjudicating guilt, placed appellant on ten years' community supervision, and assessed a $5000 fine. Subsequently, the State moved to proceed with an adjudication of guilt, alleging appellant violated the terms of his probation. Appellant pleaded true to the allegations. The trial court granted the motion, adjudicated appellant guilty, and sentenced him to twenty-five years confinement. In two points, appellant contends the trial court abused its discretion by revoking his probation based on a failure to pay fines, and the sentence assessed constitutes cruel and unusual punishment. We affirm the trial court's judgment. In his first point, appellant complains about the sufficiency of the evidence to support adjudication of guilt. Appellant, however, may not appeal the trial court's determination to proceed with adjudication of guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). Thus, we do not have jurisdiction to address appellant's complaint. Accordingly, we dismiss appellant's first point. In his second point, appellant argues the twenty-five-year sentence imposed by the trial court constitutes cruel and unusual punishment, in violation of the Eight Amendment to the United States Constitution. The State responds with the argument that appellant has waived his complaint by failing to raise the issue in the trial court, the sentence assessed was within the statutory punishment range, and it is not cruel and unusual punishment. We agree with the State. Appellant did not complain about his sentence either at the time it was imposed or in a motion for new trial. Even constitutional complaints may be waived by the failure to raise a timely objection in the trial court. See Saldano v. State, 70 S.W.3d 873, 889 (Tex.Crim.App. 2002). We conclude appellant has not preserved his complaint for review. See Tex.R.App.P. 33.1. Moreover, punishment assessed within the statutory range does not violate the federal and state constitutional prohibitions of cruel and unusual punishment. See Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). The punishment range for aggravated sexual assault of a child under fourteen years of age is five to ninety-nine years or life imprisonment and an optional fine of up to $10,000. See Tex. Pen. Code Ann. §§ 12.32, 22.021 (Vernon 2003 Supp. 2004). Appellant's twenty-five year sentence is within the statutory range. Accordingly, we decide appellant's second point adversely to him. We affirm the trial court's judgment.