Shamar Collins v. State ( 2005 )

Opinion issued February 24, 2005

  In The

Court of Appeals

For The

First District of Texas

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NO. 01-04-00166-CR

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SHAMAR COLLINS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 789860

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MEMORANDUM OPINION

          Appellant, Shamar Collins, pleaded no contest to aggravated robbery in 1998. On November 5, 1998, the trial court deferred a finding of guilt, placed appellant on deferred adjudication community supervision for five years, and assessed a $500 fine pursuant to appellant’s plea agreement with the State. The State filed a motion to adjudicate guilt on August 25, 2003. Appellant pleaded not true to the allegations. After finding the allegations to be true, the trial court found appellant guilty and assessed his punishment at five years imprisonment and a fine of $500. In two points of error, appellant argues that the punishment violates his federal and state constitutional rights against cruel and unusual punishment.

          We affirm.

Analysis

          In his first and second points of error, appellant argues that the sentence assessed by the trial court was not proportionate to the offense originally charged, in violation of his federal and state constitutional rights against cruel and unusual punishment.

          The State argues that appellant has waived his complaint because it was not asserted during adjudication proceedings. To preserve error for appellate review, the appellant must make a timely, specific objection, at the earliest opportunity, and obtain an adverse ruling. See Tex. R. App. P. 33.1(a). Constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Curry v. State, 910 S.W.2d 490, 497–98 (Tex. Crim. App. 1995) (holding that complaint of cruel and unusual punishment is waived if not raised in trial court); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). Appellant did not raise his appellate argument at anytime during the adjudication proceedings. Accordingly, we hold that appellant has waived his complaint. See Tex. R. App. P. 33.1(a).

          We overrule appellant’s first and second points of error.

Conclusion

          We affirm the judgment of the trial court.

                                                             Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).