COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

BEN NY F RANK DEL ANEY, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-10-00011- CR

Appea l from 252nd District Court of Jeffer son County , Texas (TC # 07-01962)

O P I N I O N Be nny Fr ank Delane y appea ls his conviction of felony theft. He complains that his two y ear sentenc e constitutes crue l and unusual punishment under both the Eig hth Amendment of the United States Consti tution and A rticle I , section 13 of the Texas Consti tution. For the following rea sons,

we a ffirm. F ACTUAL SUMMA RY Appellant entered a plea of g uilty to the offense of felony theft on May 7 , 2 0 0 8

. T h e trial court defer

red his adjudication of g uilt, and placed him on community supervision for two y ear s. The State subsequently filed a motion to adjudicate , alleg ing Appellant violated sever al conditions of community supervision. The motion alleged t hat Appellant failed to repor t by mail to the probation depar

tment for the months of May , J une, Aug ust, and September of 2009, failed to work faithfully at employ

ment; failed to perf

orm community service hours, and owed $757 in restitution. At the revoc ation hear ing, Appellant pled true to the alleg ations that he failed to repor t to the probation depar

tment and t h at h e fa i led to pay court-a ssessed fee s. The trial court found the evidenc e sufficie nt to prove Appellant had violated the condi t i o n s as alleg ed in the motion. Thecourt g rante d the State’s motion, adjudicate d Appellant’s g u i lt, and assessed his punishment at

confine ment in the state jail for a term of two y ear s. This appea l follows. P RESERVATION OF ERROR I n Points o f R ev i ew On e and Two, Appellant contends that his sentenc e of two y ear s’ imprisonment is g rossly disproportionate to the offe nse in violation of the Eig hth Amendment of the United S tates C onstitut ion and Article I , section13 of the T exas Const itution. The S tate responds that Appellant wa ived both issues for a ppellate r eview. We a g ree . To prese rv e err or for appellate revie w, the rec ord must show Appellant made a timely
reque st, objection, or motion. See T E X .R.A P P .P. 33.1(a) (1). Even constitutional rig hts, such as the rig ht to be fre e from crue l and unusual punishment, may be waived. See Rhoades v. State , 934 S.W .2d 113, 120 (Tex.Crim.App. 1996); Curry v. State , 910 S.W .2d 490, 498 (Tex.Crim.App. 1995). Appellant asser

ts tha t he ra ised the sentenc ing issue in a post-verdic t motion filed with the trial court on November 16, 2009, and he direc ts our attention to a portion of the cler k’s rec ord. But the rec ord does not contain either a motion raising this issue or an adver se ruling by the trial court. We note that the trial court conducte d the hear ing on the State’s motion to adjudicate on November 30, 2009 and pronounce d sentenc e on that same date. Fur ther, the docket sheet does not ref lect that the court ruled on any post-sentenc ing motions. Finding that Appellant has not prese rved his issues for r eview, w e over

rule I ssues One a

nd Two and a ffirm the judg ment of the trial c ourt.

J uly 6, 2011 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.(Do Not Publish)