AFFIRMED as Modified; Opinion Filed April 27, 2015.




                                             In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-14-00495-CR

                          MELQUIADES HERNANDEZ, Appellant

                                               V.

                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 1
                                   Dallas County, Texas
                           Trial Court Cause No. F13-55932-H

                              MEMORANDUM OPINION
                           Before Justices Fillmore, Myers, and Evans
                                   Opinion by Justice Myers

       A jury convicted Melquiades Hernandez of continuous sexual abuse of a young child.

See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2014). The trial court assessed punishment

at sixty years’ imprisonment. In three issues, appellant contends the sentence violates the United

States and Texas Constitutions and the judgment should be modified to show the trial court

assessed the punishment. We modify the trial court’s judgment and affirm as modified.

                                 DISPROPORTIONATE SENTENCE

       In his first two issues, appellant contends the sentence is grossly disproportionate to the

offense and inappropriate to the offender, in violation of the United States and Texas
Constitutions. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. Appellant asserts he

denied the complainant’s accusations during the punishment phase, and the sentence is too

severe given the fact that it is more than twice the minimum number of years for the offense.

The State responds that appellant failed to preserve his complaint for appellate review and

alternatively, the trial court properly exercised its discretion in sentencing appellant in this case.

    To preserve error for appellate review, the record must show appellant made a timely request,

objection, or motion. See TEX. R. APP. P. 33.1(a)(1). 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). Appellant made no objection when he was sentenced, and his

motion for new trial did not address this complaint. Accordingly, he has not preserved the issue

for appellate review. See Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no

pet.).

    Moreover, punishment that is assessed within the statutory range for an offense is neither

excessive nor unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex.

App.—Dallas 1997, pet. ref’d); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App.

1984). The punishment range for the offense of continuous sexual abuse of a young child is

imprisonment for life or for any term not more than ninety-nine years nor less than twenty-five

years, and an optional fine up to $10,000. See TEX. PEN. CODE ANN. §§ 12.32, 21.02(h) (West

2011 & Supp. 2014). Appellant’s sixty-year sentence is within the statutory range. We overrule

appellant’s first and second issues.

                                         MODIFY JUDGMENT

         In his third issue, appellant asks us to modify the trial court’s judgment to show the trial

court assessed the punishment instead of the jury. The State agrees the judgment should be



                                                  -2-
modified as appellant requests. The judgment incorrectly states the jury assessed punishment.

We sustain appellant’s second issue.

       We modify the trial court’s judgment to show that punishment was assessed by the court.

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.




                                                    / Lana Myers/
                                                    LANA MYERS
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47
140495F.U05




                                              -3-
                                Court of Appeals
                         Fifth District of Texas at Dallas

                                       JUDGMENT


MELQUIADES HERNANDEZ,                              Appeal from the Criminal District Court
Appellant                                          No. 1 of Dallas County, Texas (Tr.Ct.No.
                                                   F13-55932-H).
No. 05-14-00495-CR        V.                       Opinion delivered by Justice Myers,
                                                   Justices Fillmore and Evans participating.
THE STATE OF TEXAS, Appellee



       Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as
follows:

       The section entitled “Punishment Assessed by” is modified to show “Court.”

       As modified, we AFFIRM the trial court’s judgment.



       Judgment entered this 27th Day of April, 2015.




                                             -4-
