EDWARD RAY MILLER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed June 18, 2008.
 
 
                                                                          
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01050-CR
............................
EDWARD RAY MILLER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F06-66611-H
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MEMORANDUM OPINION
Before Justices Moseley, Francis, and Lang
Opinion By Justice Francis
        Edward Ray Miller pleaded guilty to delivery of cocaine and was sentenced to five years in prison. In three issues on appeal, he complains the trial court denied him his common law and statutory rights of allocution and imposed a cruel and unusual punishment. We affirm.
        While on probation for possession of drugs, appellant was arrested on three new drug charges. The delivery charge at issue here occurred after appellant sold crack cocaine out of his apartment to a police officer. Appellant pleaded guilty to the new charges and true to violating his probation. At the punishment hearing, appellant and his wife both asked the judge to place him on probation because of his poor health.
        Appellant testified he suffered from diabetes, heart disease, and high blood pressure and was a double amputee. He also testified that he did not believe he could receive adequate medical treatment while incarcerated and believed he did not have long to live. He pleaded with the judge to “please, please let me have one more chance” and promised he would “[n]ever have to see my face again” if he granted probation. On cross examination, appellant acknowledged a lengthy criminal history, including several prior felony convictions involving drugs.
        Appellant's wife testified if appellant were given probation, she would do everything she could to ensure he stayed out of trouble. In closing argument, defense counsel asked the judge for “mercy and compassion,” saying that appellant's “days were numbered” and seeking probation.
        After hearing the evidence, the trial judge imposed punishment without asking appellant if he had anything to say. When imposing the sentence, the judge told appellant he was “conscious” of his “medical condition” but added “it's not an excuse for doing what you did.”
        In his first and second issues, appellant argues he is entitled to a new punishment hearing because he “did not get to make a final plea for mercy” in violation of his common law and statutory rights to allocution.
        “Allocution” refers to a trial judge's asking a criminal defendant to “speak in mitigation of the sentence to be imposed.” Eisen v. State, 40 S.W.3d 628, 631-32 (Tex. App.-Waco 2001, pet. ref'd). To complain on appeal that he was denied this right, whether statutory or common law, a defendant must object. See Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. [Panel Op.] 1978); McClintick v. State, 508 S.W.2d 616, 617-18 (Tex. Crim. App. 1974) (op. on reh'g). Appellant acknowledges that he made no objection at the time, but contends his handwritten notice of appeal preserved his complaint by stating that his “medical reasons w[ere] not raised to the full extent of his nature to get or receive a lesser charge or sentence.” Alternatively, he contends this Court should address the ground as fundamental error or as a matter of policy.         We reject appellant's contention that his notice of appeal preserved his complaint. The function of a notice of appeal is to vest jurisdiction in the appellate court, not to present an objection to the trial court. With respect to his alternative grounds, appellant has made no analysis as to why the complaint is either fundamental error or should be addressed on policy grounds.
        Regardless, even if we were to address the merits of the complaint, appellant cannot show harm. Initially, we note that appellant does not indicate what additional health matters he would have raised. Indeed, his entire position at the punishment hearing was to seek probation based on his medical condition and, as he acknowledges in his brief, he gave detailed testimony on that issue. Moreover, both he and wife pleaded for the mercy from the trial judge as did defense counsel in closing arguments. These pleas were based on appellant's health. Consequently, while he was not asked if there was anything he wanted to say immediately before sentence was imposed, he raised his health as a mitigating factor just minutes before the trial judge assessed punishment. Moreover, as reflected by his comments when announcing the sentence, the judge did consider appellant's health. We overrule the first and second issues.
         In his third issue, appellant contends that confinement of a double amputee for five years is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Again, appellant did not complain about the sentence at the time it was imposed or in a motion for new trial. Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Castaneda v. State, 135 S.W. 719, 723 (Tex. App.-Dallas 2003, no pet.). Moreover, the sentence is within the statutory punishment range for the offense and was, in fact, the least possible amount of time that could have been imposed. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.112(a), (c) (Vernon 2003 & Supp. 2007); Tex. Pen. Code Ann. § 12.42(b) (Vernon Supp. 2007). Generally, punishment assessed within the statutory range does not violate either the federal or state prohibitions against cruel and unusual punishment and will not be disturbed on appeal. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd) (op. on remand). We overrule the third issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
071050F.P05