GILBERT RODRIGUEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed April 28, 2009.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00897-CR
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GILBERT RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause No. F07-43802-TX
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OPINION
Before Justices Moseley, O'Neill, and Murphy
Opinion By Justice Moseley
        Gilbert Rodriguez waived a jury and pleaded guilty to felony DWI. The trial court assessed punishment, enhanced by a prior felony conviction, at twelve years' imprisonment. In two issues, appellant contends the sentence is grossly disproportionate to the offense and inappropriate to the offender in violation of the United States and Texas Constitutions. See U.S. Const. Amend. VIII, XIV; Tex. Const. Art. I, § 13. We affirm.
        Appellant asserts the sentence is grossly disproportionate, severe, and unnecessary because he avoids alcohol, no longer has a vehicle, and has been employed at the same job since his release from prison in 2002. Appellant insists that although he has several prior DWI convictions, he could successfully complete probation “with drug/alcohol treatment.” The State responds that appellant failed to preserve his complaints for appellate review, and the sentence is not disproportionate to the offense and circumstances.
        Appellant did not complain about the sentence at the time it was imposed. 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 may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Castaneda, 135 S.W.3d at 723. Although appellant complained about the sentence in his motion for new trial, the record fails to show that appellant brought the motion to the trial court's attention. The rules of appellate procedure require that an accused “present” his motion for new trial to the trial court within specified time limits. Tex. R. App. P. 21.6; Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App.1998). The Texas Court of Criminal Appeals has determined that the term “present” means “the record must show the movant for a new trial sustained the burden of actually delivering the motion for new trial to the trial court or otherwise bringing the motion to the attention or actual notice of the trial court.” Carranza, 960 S.W.2d at 79. Appellant's motion for new trial was accompanied by a proposed order, which was to be signed by the trial court, but it is blank. Because appellant has shown no other evidence that he brought the motion to the trial court's attention, we hold there is no evidence he presented the motion to the trial court. See id. at 77-79 (holding motion not presented to trial court where it was overruled by operation of law, no hearing was held, and no evidence showed trial court knew motion had been filed.).
        Moreover, even if we assume that appellant preserved error, the evidence does not show the sentence is disproportionate to the offense. Rather, the record shows appellant has prior convictions for numerous DWIs, possession of marijuana, and assaulting a public servant. Finally, we observe the punishment assessed lies within the statutory punishment range for the offense. See Tex. Penal Code Ann. § 12.33 (Vernon 2003); Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). We resolve appellant's two issues against him.
        We affirm the trial court's judgment.
 
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
080897F.U05