WILLIAM MARION MCGEE, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM and Opinion Filed December 19, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00407-CR
............................
WILLIAM MARION MCGEE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F04-40507-HI
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OPINION
Before Justices Bridges, Richter, and Mazzant
Opinion By Justice Richter
        William Marion McGee appeals following adjudication of guilt for arson. In three points of error, appellant contends the trial court abused its discretion in assessing a prison term, and the sentence constitutes cruel and unusual punishment. We affirm the trial court's judgment.
Background
 
        Appellant waived a jury and pleaded guilty to arson of a habitation. See Tex. Penal Code Ann. § 28.02(a)(2) (Vernon Supp. 2008). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on two years' community supervision, and assessed a $500 fine. The trial court later extended the period of supervision for twelve months. Subsequently, the State moved to adjudicate guilt, alleging appellant violated the terms of his community supervision. At a hearing on the motion, appellant pleaded true to the allegations. The trial court granted the motion, adjudicated appellant guilty, and assessed punishment at five years' imprisonment.
Discussion
 
        In three points of error, appellant contends the trial court abused its discretion in sentencing him to prison, and sentence is disproportionate to the offense and 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 although he missed reporting a few times and tested positive for marijuana use, he had worked two jobs, paid some of the fees, and made a good attempt to meet all of his probation obligations. Appellant asserts he should have received more intense supervision rather than incarceration. The State responds that appellant failed to preserve his complaints for appellate review and, alternatively, the sentence is neither disproportionate to the offense nor cruel or unusual.
        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. Penal Code Ann. § 12.32 (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 a five-year prison term. We overrule appellant's three points of error.
 
        We affirm the trial court's judgment
 
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
080407F.U05
 
 

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