Anthony D. Washington v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-433-CR
ANTHONY D. WASHINGTON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Anthony D. Washington appeals his twelve-year sentence for
robbery.2 We affirm.
In an open plea to the trial court, appellant pleaded guilty to robbery.
After hearing evidence and argument, the trial court sentenced appellant to
1
… See T EX. R. A PP. P. 47.4.
2
… See Tex. Penal Code Ann. §§ 12.33, 29.02(a)(2) (Vernon 2003).
twelve years’ confinement in the Institutional Division of the Texas Department
of Criminal Justice.
In his sole point on appeal, appellant contends that the trial court abused
its discretion in sentencing him to twelve years’ confinement because the
sentence was disproportionate to the crime committed.
Although appellant timely filed a motion for new trial, he has failed to
preserve his complaint because the record does not indicate that he presented
his motion for new trial to the trial court.3 The term “present” means the
record must show that the movant for a new trial sustained the burden of
actually delivering the motion for new trial to the attention or actual notice of
the trial court.4 Here, the record establishes that Appellant timely filed his
motion for new trial, but it does not show that he actually delivered it to the
trial court or otherwise brought it to the trial court’s attention.5 Accordingly,
3
… T EX. R. A PP. P. 21.6 (providing generally that defendant must present
motion for new trial to trial court within ten days of its filing); Thompson v.
State, 243 S.W.3d 774, 775–76 (Tex. App.—Fort Worth 2007, pet. ref’d);
Crawford v. State, No. 02-04-00299-CR, 2005 WL 1477958 (Tex. App.—Fort
Worth June 23, 2005, pet. ref’d) (not designated for publication) (holding that
disproportionate sentence claim must be preserved for appellate review); see
Carranza v. State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998) (holding that
appellant had burden not only to file motion for new trial, but also to “present”
it to the trial court).
4
… Carranza, 960 S.W.2d at 79.
5
… See T EX. R. A PP. P. 21.6; Carranza, 960 S.W.2d at 79.
2
because appellant did not preserve his claim regarding the alleged
disproportionate sentencing, we overrule his sole point. The trial court’s
judgment is affirmed.
PER CURIAM
PANEL: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
PUBLISH
DELIVERED: August 29, 2008
3