Agustin Garcia v. State

F
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00276-CR
AGUSTIN GARCIA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction and Background
Appellant Agustin Garcia was indicted for attempted capital murder and
later entered an open plea of guilty to a lesser-included charge of aggravated
assault of a public servant with a deadly weapon. The trial court conducted an
evidentiary hearing, found Appellant guilty of aggravated assault of a public
servant with a deadly weapon, and sentenced Appellant to twenty-nine years’
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See Tex. R. App. P. 47.4.
confinement. In his sole issue on appeal, Appellant contends that the trial court
abused its discretion and assessed cruel and unusual punishment by sentencing
him to twenty-nine years’ confinement.
II. Discussion
Appellant contends that his twenty-nine year sentence violates the Eighth
Amendment of the United States Constitution and article I, section 13 of the
Texas constitution. However, Appellant did not object to his sentence at the time
it was imposed nor complain about it in a motion for new trial. As we held in Kim
v. State,
It is axiomatic that errors that are asserted on the part of the
trial court must generally be brought to the trial court’s attention in
order to afford the trial court an opportunity to correct the error, if
any. To preserve for appellate review a complaint that a sentence is
grossly disproportionate, constituting cruel and unusual punishment,
a defendant must present to the trial court a timely request,
objection, or motion stating the specific grounds for the ruling
desired. . . .
[Appellant’s] complaint about the alleged disproportionality of his
sentence was not raised at the time it was imposed or in a motion for
new trial. Therefore, he preserved nothing for our review.
283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (internal citations
omitted); see also Noland v. State, 264 S.W.3d 144, 151–52 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d) (holding defendant failed to preserve his
Eighth Amendment complaint of grossly disproportionate sentence); Acosta v.
State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no pet.) (holding
defendant failed to preserve his Texas constitutional complaint of grossly
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disproportionate sentence). Just as in Kim, Appellant did not object to his
twenty-nine year sentence at the time it was imposed or complain about it in a
motion for new trial. See Kim, 283 S.W.3d at 475. Appellant therefore preserved
nothing for our review. See id.
Further, even if we were to reach the merits of Appellant’s complaint, his
twenty-nine year sentence is well within the statutory range of five to ninety-nine
years for first-degree felonies. See Tex. Penal Code Ann. § 12.32(a) (Vernon
Supp. 2010). And punishment imposed within the statutory range is generally
not subject to challenge for excessiveness. See Kim, 283 S.W.3d at 475–76
(stating punishment assessed was not excessive when based on sentencer’s
informed normative judgment and fell within the legislatively prescribed range);
Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.)
(―Generally, punishment assessed within the statutory limits is not excessive,
cruel, or unusual punishment.‖). Moreover, the record reflects that Appellant
intentionally and knowingly pointed a loaded firearm at a uniformed police officer,
that Appellant told the officer that he would kill him, that the officer would not be
alive had he not reacted quickly by firing at Appellant, and that Appellant has an
extensive criminal history. Appellant could have been sentenced to as many as
ninety-nine years’ confinement but instead received a twenty-nine year sentence.
See Tex. Penal Code Ann. § 12.32(a). We overrule Appellant’s sole issue.
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III. Conclusion
Having overruled Appellant’s sole issue, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 5, 2011
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