RUNNY HENDRIX, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed as Modified; Opinion Filed May 28, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01126-CR
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RUNNY HENDRIX, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F03-74480-I
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OPINION
Before Justices Moseley, Francis, and Lang
Opinion By Justice Francis
        Runny Hendrix waived a jury and pleaded guilty to burglary of a habitation and true to two enhancement paragraphs. The trial court deferred adjudicating guilt and placed appellant on community supervision for ten years. The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision. After a hearing, the trial court granted the motion, adjudicated appellant guilty, and assessed punishment at imprisonment for forty years. In four points of error, appellant contends the trial court abused its discretion in assessing an unreasonable sentence and the sentence constitutes cruel and unusual punishment, and the judgment should be modified to reflect the conditions appellant was found to have violated. We affirm as modified.
        In his first three points of error, appellant argues the forty-year sentence is grossly disproportionate to the offense and constitutes cruel and unusual punishment, in violation of the United States and Texas Constitutions, and the sentence is unreasonable in light of his longstanding drug addiction. The State responds that appellant did not preserve his complaints for appellate review and, alternatively, the sentence violates neither the United States or Texas Constitution nor is it unreasonable.
        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, appellant was sentenced as an habitual offender, and the sentence is at the lower end of the statutory punishment range. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2007); Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). We overrule appellant's first three points of error.
        In his fourth point of error, appellant argues the judgment should be modified to reflect the conditions of deferred community supervision he was found to have violated. The State concedes the judgment should be modified to show the trial court found appellant violated conditions as stated in the amended motion to adjudicate guilt.
        The State filed an amended motion to adjudicate guilt that alleged appellant committed a new burglary of a habitation offense and six other violations of his conditions of community supervision. The trial court found appellant had violated three conditions of community supervision, including committing the new offense. However, the trial court's judgment incorrectly recites appellant violated the conditions of community supervision “as set out in the State's original motion to adjudicate guilt.” We sustain appellant's fourth point of error.
        We modify the trial court's judgment to show appellant violated the terms and conditions of community supervision “as set out in the State's amended motion to adjudicate guilt.” See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
071126f.u05