No. 05-08-01393-CR
Opinion Filed September 15, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F03-40269-RI.
Before Justices WRIGHT, RICHTER, and FILLMORE.
Opinion By Justice FILLMORE.
Bruce Gregory Theriot appeals his conviction for burglary of a habitation. In a single point of error, he contends the trial court abused its discretion by sentencing him to prison. We affirm the trial court's judgment.
Background
According to the record, appellant pleaded guilty to the offense of burglary of a habitation and was placed on deferred adjudication probation for five years. After appellant's probation was transferred to Louisiana, the State filed a motion to proceed to an adjudication of guilt because appellant stopped attending probation appointments and paying ordered restitution. The State's motion was subsequently withdrawn when the trial court added a condition of probation requiring appellant to submit to substance abuse treatment at a treatment program located in Wilmer, Texas. After appellant completed this treatment program, he asked to have his probation again transferred to Louisiana. Told it would take up to a month to do this, appellant nevertheless left the state and returned to Louisiana with two years remaining on his probation. While living in Louisiana, appellant committed an additional criminal offense for which he spent six months in jail before being returned to Dallas, Texas. Appellant was on parole for this offense at the time of his October 2008 adjudication hearing. During the hearing, appellant claimed that his attitude had changed after spending two weeks in Angola prison in Louisiana due to being evacuated from the jail because of Hurricane Gustav. Appellant asked the trial court to discharge him from probation and consider the previous confinement to be sufficient punishment. After listening to the evidence and the arguments of counsel, the trial court adjudicated appellant's guilt and assessed punishment at four years' imprisonment. Discussion
Appellant raises the single contention that the trial court abused its discretion and violated the rehabilitation objectives of the Texas Penal Code by sentencing him to a prison term because the sentence was not necessary to prevent the recurrence of any criminal behavior. Appellant asserts that his experiences since leaving Texas have changed his outlook on life and given him the will to abandon his past criminal behavior. In addition, appellant asserts that the evidence shows he went back to Louisiana after finishing the Wilmer drug treatment and aftercare program only because he had no family and no place to live in Texas. The State responds that (1) appellant has failed to preserve his complaint for appellate review and (2) the record does not support his contention. Beginning with the State's first argument, we note that appellant did not complain about the 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. Appellant asserts that no objection was required in this circumstance because the trial court was on notice that any sentence of imprisonment was objectionable; hence, a specific objection to the sentence assessed by the trial court was not required and would have been redundant. Yet despite appellant's request that he be permitted to go on with his life in Louisiana, he never argued that a prison sentence violated the objectives of the Texas Penal Code. In addition, when the trial court asked appellant's trial counsel whether there was any reason why sentence should not be imposed, counsel said, "No, sir." The boilerplate language in appellant's motion for new trial, which claimed the verdict "is contrary to the law and the evidence," also failed to inform the trial court of any argument that the four-year sentence violated the penal code's objectives. See Casteneda, 135 S.W.3d at 723 n. 1 (appellant's argument that his punishment was disproportionate was not raised in his motion for new trial because it merely alleged "`the verdict is contrary to the law and the evidence.'"). By failing to advance in the trial court the claims contained in his sole issue, appellant failed to preserve that issue for appellate review. With regard to the State's second argument, even if appellant preserved his contention for appellate review, there is no evidence the sentence was cruel or unusual, and it was within the statutory punishment range for the offense. See Tex. Pen. Code Ann. §§ 12.33, 30.02(a)(c)(2) (Vernon 2003); Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal). By sentencing appellant to a punishment within the punishment range for his offense, the trial court complied with the objectives of the Texas Penal Code. See Tex. Pen. Code Ann. § 1.02 (Vernon 2003); Carpenter v. State, 783 S.W.2d 232, 232-33 (Tex. App.-Dallas 1989, no pet.). We therefore overrule appellant's sole point of error. We affirm the trial court's judgment.