PHILLIP BETTS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Issued September 12, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00178-CR
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PHILLIP BETTS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F06-86514-LY
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OPINION
Before Justices Whittington, Bridges, and Lang-Miers
Opinion By Justice Whittington
        Phillip Betts waived a jury trial and pleaded not guilty to aggravated assault with a deadly weapon, a knife. After hearing evidence, the trial judge found appellant guilty. The trial judge then assessed punishment, enhanced by a prior conviction, at eighty years' imprisonment and a $10,000 fine. In three points of error, appellant contends the trial judge erred in not receiving his plea or entering a plea for him and the sentence constitutes cruel and unusual punishment. We affirm the trial court's judgment.
        In his first point of error, appellant argues the trial judge erred by not receiving his plea or entering a plea for him, thus no plea was entered on the record. The record shows appellant pleaded not guilty to the charges in the indictment. The trial judge held three pre-trial hearings, the last of which occurred two business days before trial. During the first two pre-trial hearings, appellant testified he rejected the State's offers of seven years' and fifteen years' imprisonment in exchange for a guilty plea because he wanted to proceed with a jury trial. However, during the last pre-trial hearing, appellant testified he wanted to change his mind and have a “trial by judge” and not a jury. The State agreed to waive a jury and proceed with a trial before the court. The judge recessed the hearing to allow appellant time to consult with his counsel about waiving a jury trial. After the recess, appellant persisted in wanting a trial before the court. When the judge asked appellant if he understood the parties would proceed to a trial before the court on appellant's plea of not guilty, appellant said, “[y]es, sir.” Thus, appellant's complaint is without merit We overrule appellant's first point of error.
        In his second and third points of error, appellant argues the trial judge assessed an unreasonable sentence, and the sentence 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 argues that because he denied committing the offense, the sentence is disproportionate.
        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, there is no evidence the sentence is cruel or unusual, and it is within the statutory punishment range for the offense. See Tex. Pen. Code Ann. § 12.32; Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). We overrule appellant's second and third points of error.         We affirm the trial court's judgment.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070178F.U05