Opinion
No. 04-04-00694-CR
Delivered and Filed: July 6, 2005. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2003CR0667W, Honorable Philip A. Kazen, Jr., Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Rick Selman was charged with theft from a person. On January 30, 2003, pursuant to a plea-bargain agreement, Selman pled no contest. On March 3, 2003, a sentencing hearing was held, and Selman was sentenced to two years in state jail. The trial court then suspended his sentence and placed him on community supervision for five years. On July 30, 2003, the State filed a motion to revoke Selman's community supervision, alleging that Selman had violated three conditions of his community supervision. At the revocation hearing on September 9, 2003, Selman pled true to violating all three conditions. The court granted the State's motion and revoked Selman's community supervision. However, the trial court left open the possibility of "shock probation." On October 16, 2003, Selman filed an application for shock probation, which was granted on October 31, 2003. As such, Selman was released, and the trial court again placed Selman on community supervision for a period of five years. However, on April 29, 2004, the State filed another motion to revoke Selman's community supervision, alleging seven violations. On September 15, 2004, the trial court held a hearing. Selman pled true to four of the allegations, including failure to report to his supervision officer, unauthorized use of a motor vehicle, driving while license suspended, and having departed Bexar County without permission. The trial court granted the State's motion, revoked Selman's community supervision, and sentenced Selman to two years in a state jail facility. Selman appeals. In one issue, Selman argues that his two-year sentence is disproportionate to the gravity of the offense committed, "thereby constituting cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution." Selman admits that he did not make a specific objection during the hearing on these grounds. Nevertheless, he argues that he "did preserve error for appeal because trial counsel argued for probation," and, as such, his objection was apparent from the context. See Tex.R.App.P. 33.1(a). We disagree. Selman did not make an objection in compliance with Texas Rule of Appellate Procedure 33.1(a). And, even though Selman raises a constitutional issue, constitutional rights, including the right to be free from cruel and unusual punishment, may be waived by failure to assert the right by a timely objection or motion. 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.); Rodriguez v. State, 71 S.W.3d 778, 779 (Tex.App.-Texarkana 2002, no pet.); Nicholas v. State, 56 S.W.3d 760, 768 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). As such, Selman waived this issue. See Tex.R.App.P. 33.1(a). We overrule Selman's sole issue and affirm the judgment of the trial court.
Selman also states that such a sentence would be a violation of the Texas Constitution, but fails to state how his rights under the Texas Constitution would differ from those under the Eighth Amendment.