Affirmed and Memorandum Opinion filed March 29, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00177-CR
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THOMAS E. SUDDS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 896,811
M E M O R A N D U M O P I N I O N
Challenging his felony conviction for evading arrest, appellant Thomas E. Sudds contends the trial court erred by sentencing him to punishment grossly disproportionate to the crime committed, thereby violating his constitutional rights against cruel and unusual punishment. We affirm.
I. Factual and Procedural Background
On December 15, 2001, appellant was charged with the felony offense of evading arrest. Appellant waived his right to a trial by jury, and entered a plea of Aguilty.@ The trial court sentenced appellant to two years= confinement in the state jail, probated for five years, and assessed a $600.00 fine. On February 23, 2006, the State filed a motion to revoke appellant=s probation for violating terms of his probation, including, but not limited to, the consumption of controlled substances. Appellant entered a plea of Atrue@ to the motion. The trial court revoked appellant=s probation, and sentenced him to six months= confinement in the state jail.
II. Issues and Analysis
In two issues, appellant contends his sentence of six-months= confinement is grossly disproportionate to the crime committed, and, therefore, violates his state and federal constitutional rights to be free from cruel and unusual punishment. See U.S. Const. amend. VIII; Tex. Const. art. I, section 13. The State responds that appellant is precluded from raising these issues on appeal because he failed to object that his sentence constituted cruel and unusual punishment in the trial court. We agree.
To preserve a complaint for appellate review, a party is required to make a timely, specific objection and obtain an adverse ruling. Tex. R. App. P. 33.1(a). The constitutional right to be free from cruel and unusual punishment may be waived. See Nicolas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (concluding that defendant waived claim that one concurrent and five consecutive sentences imposed for three counts of aggravated sexual assault of child and three counts of indecency with a child were cruel and unusual under both federal and state constitutions, when he did not raise them in trial court); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d) (finding waiver where defendant failed to object at punishment hearing that sentence was cruel and unusual); see also Stewart v. LaGrand, 526 U.S. 115, 119, 119 S. Ct. 1018, 143 L. Ed. 2d 196 (1999). Because appellant did not voice his objection in the trial court and is raising the issue for the first time on appeal, his argument is not preserved for appellate review. See Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996).
Even if appellant had not waived his complaint, we would find no merit in it because appellant was sentenced within the statutory range, and he has not demonstrated that his sentence of confinement for six months was grossly disproportionate to the offense for which he was convicted. See Benjamin v. State, 874 S.W.2d 132, 134B35 (Tex. App.CHouston [14th Dist.] 1994, no pet.) (concluding that punishment assessed within statutory range is not disproportionate and does not violate a defendant=s rights against cruel and unusual punishment). Appellant was convicted of evading arrest in a motor vehicle, which is a state-jail felony. See Tex. Penal Code Ann. ' 38.04 (b)(1) (Vernon Supp. 2005). The punishment range includes confinement in a state jail for not less than one-hundred and eighty days and no more than two years. Id. ' 12.35(a). The trial court sentenced appellant to six months (one-hundred eighty days) of confinement in the state jail. This punishment is not disproportionate and does not violate appellant=s federal or state constitutional rights against cruel and unusual punishment. See Benjamin, 874 S.W.2d at 134.
We overrule appellant=s two issues on appeal, and affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed March 29, 2007.
Panel consists of Justices Frost, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).