Paul Malone v. State ( 2014 )

AFFIRM; and Opinion Filed June 16, 2014.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01415-CR
PAUL MALONE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F12-13564-H
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang-Miers
Opinion by Justice Lang-Miers
Paul Malone appeals his conviction for aggravated assault with a deadly weapon. In two
issues, appellant contends the sentence imposed violates his constitutional rights. We affirm the
trial court’s judgment.
Appellant pleaded guilty before a jury to aggravated assault with a deadly weapon,
causing serious bodily injury and involving family violence. See TEX. PENAL CODE ANN.
§ 22.02(a)(2), (b)(1) (West 2011). After finding appellant guilty, the jury assessed punishment at
forty-five years’ imprisonment and a $10,000 fine. Appellant contends the sentence is grossly
disproportionate to the offense and inappropriate to the offender, in violation of the Eighth and
Fourteenth Amendments to the United States Constitution and Article I, Section 13 of the Texas
Constitution. See U.S. CONST. amend. VIII, XIV; TEX. CONST. art. I, § 13. Appellant asserts he
has suffered from depression since childhood and, at the time of the offense, he experienced
tunnel vision and a loss of hearing and was unaware of his actions. Appellant argues that
because he had never been convicted of a felony offense and was employed, he should have been
granted probation. The State responds that appellant failed to preserve his complaints for
appellate review and alternatively, the sentence cannot be characterized as being grossly
disproportionate to the offense.
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.). Thus, he has not preserved this issue for appellate review.
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). Aggravated assault with a deadly weapon, involving family violence, is a first-degree
felony offense, punishable by imprisonment for five to ninety-nine years or life and an optional
fine not to exceed $10,000. See TEX. PENAL CODE ANN. §§ 12.32, 22.02(b)(1). The jury had
evidence before it of the severity of the injuries the complainant received after appellant shot her
multiple times, as well as the ongoing medical issues the complainant has as a result of those
injuries. The jury also heard evidence of appellant’s previous physical abuse of the complainant.
The jury also heard evidence that a physician’s assistant for Parkland Hospital assigned to the
Dallas County jail made several possible diagnoses of appellant, including bipolar disorder,
intermittent explosive disorder, and post-traumatic stress disorder with the possibility of a
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seizure. The physician’s assistant diagnosed medication for soothing mood swings and an
antidepressant for appellant. There was also evidence that appellant reported having been shot in
the head, with the bullet remaining, which could indicate neurological damage or concern for the
possible presence of lead in appellant’s system. Appellant’s forty-five-year sentence is in the
middle of the punishment range for a first-degree felony, and the $10,000 fine is also within the
statutory range.
Reviewing the record as a whole, we conclude the sentence does not violate either the
United States or Texas Constitution. We overrule appellant’s two issues.
We affirm the trial court’s judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 4
121415F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
PAUL MALONE, Appellant Appeal from the Criminal District Court
No. 1 of Dallas County, Texas (Tr.Ct.No.
No. 05-12-01415-CR V. F12-13564-H).
Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee Justices Bridges and Francis participating.
Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.
Judgment entered June 16, 2014.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
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