Opinion
Nos. 05-08-00162-CR, 05-08-00163-CR
Opinion issued February 10, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause Nos. F07-24056-NK, F07-41334-VK.
Before Justices BRIDGES, RICHTER, and MAZZANT.
OPINION
Tanya Kristine McClain waived a jury and entered open nolo contendere pleas to tampering with a government record and unlawful possession of a government financial instrument. See Tex. Penal Code Ann. §§ 32.21(a)(1)(A)(iii), 37.10(a)(5) (Vernon Supp. 2008). The trial court assessed punishment at five years' imprisonment and a $1000 fine in each case. In three points of error, appellant contends the sentences constitute cruel and unusual punishment, and the trial court abused its discretion because the sentences violate the objectives of the penal code. We affirm the trial court's judgments. Appellant argues the sentences are grossly disproportionate to the offenses and constitute cruel and unusual punishment, in violation of the United States and Texas Constitutions. See U.S. Const. Amend. VIII, XIV; Tex. Const. Art. 1, § 13. Appellant asserts that because the commission of the offenses was due solely to her struggle with financial difficulties caused by being trapped in an abusive relationship with a drug addict, the trial court should have granted her probation. Appellant contends the trial court abused its discretion in sentencing her to prison because the sentences violate the objectives of the penal code and are not necessary to prevent a recurrence of her criminal behavior. The State responds that appellant failed to preserve her complaints for appellate review and, alternatively, the trial court properly exercised its discretion in assessing punishment within the statutory range that is neither cruel nor unusual. Appellant did not complain about the sentences either at the time they were imposed or in motions 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, there is no evidence the sentences are cruel or unusual, and they are within the statutory punishment range for the offenses. See Tex. Penal Code Ann. § 12.34 (Vernon 2003); Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd). We conclude the trial court did not abuse its discretion in assessing terms in prison. We affirm the trial court's judgment in each case.