WINFORD VERNETTE HAYNES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED and Opinion Filed December 19, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01769-CR
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WINFORD VERNETTE HAYNES, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F03-52952-SK
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OPINION
Before Justices Wright, O'Neill, and Lang
Opinion By Justice Wright
        Winford Vernette Haynes waived a jury and pleaded guilty to robbery. Pursuant to a plea agreement, the trial court assessed punishment at ten years' imprisonment, probated for ten years, and a $1000 fine. The State later moved to revoke appellant's community supervision, alleging one violation. At a hearing on the motion, appellant pleaded true to the allegation. The trial court found the allegation true, revoked appellant's community supervision, and assessed punishment at eight years' imprisonment. In three points of error, appellant contends the sentence constitutes cruel and unusual punishment, and the trial court abused its discretion in sentencing him to a prison term. We affirm the trial court's judgment as modified.
        In his first two points of error, appellant contends 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 the sentence is grossly disproportionate because he needs drug treatment and rehabilitation due to his longstanding drug addiction problems. In his third point of error, appellant contends the trial court abused its discretion by sentencing him to prison because the sentence violates the objectives of rehabilitation in the penal code and is not necessary to prevent recurrence of appellant's drug use. The State responds that appellant failed to preserve his complaints for appellate review and, alternatively, the trial court properly exercised its discretion in assessing punishment because the sentence comports with the objectives of the penal code.
        Appellant did not complain about the sentence either at the time it was imposed or in a 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. Penal Code Ann. § 12.33 (Vernon 2003); Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). We conclude the trial court did not abuse its discretion in assessing appellant's punishment at an eight- year prison term. We overrule appellant's first, second, and third points of error.
        We note the record shows appellant was indicted under the name “Winford Vernette Hayney” and the trial court's written judgment recites appellant's name as “Winford Vernette Hayney.” However, appellant testified his true name is “Winford Vernette Haynes.” Thus, the written judgment is incorrect. We modify the trial court's judgment to show appellant's name is Winford Vernette Haynes. 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.
 
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
071769F.U05