Stokesv.State

Court of Appeals of Texas, Fifth District, DallasFeb 29, 2008
No. 05-07-00516-CR (Tex. App. Feb. 29, 2008)

No. 05-07-00516-CR

Opinion issued February 29, 2008. DO NOT PUBLISH Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F06-86621-UL.

Before Justices WHITTINGTON, RICHTER, and MAZZANT.


OPINION.


MARK WHITTINGTON, Justice.

Shon Dejuan Stokes waived a jury and pleaded guilty to aggravated sexual assault of a child younger than fourteen years. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2007). The trial judge assessed punishment at twenty years' imprisonment. In two issues, appellant contends the sentence constitutes cruel and unusual punishment. We affirm the trial court's judgment. Appellant argues the sentence is grossly disproportionate to the offense and constitutes 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 he was eligible for deferred adjudication community supervision and the complainant was the aggressor, the trial judge should have given him either community supervision or a lesser prison term. The State responds that appellant did not preserve his complaint for appellate review and, alternatively, the sentence does not violate the United States or Texas Constitution. 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. Moreover, the sentence is within the statutory punishment range for the offense. 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 conclude the sentence is not disproportionate to the offense, nor does it constitute cruel or unusual punishment. We resolve appellant's issues against him. We affirm the trial court's judgment.