Opinion filed May 21, 2009




                                             In The


   Eleventh Court of Appeals
                                          ____________

                                    No. 11-07-00300-CR
                                        __________

                       ANTHONY COLE FONTANA, Appellant

                                                V.

                               STATE OF TEXAS, Appellee


                      On Appeal from the Criminal District Court No. 1

                                     Tarrant County, Texas

                                Trial Court Cause No. 1044837D


                             MEMORANDUM OPINION
       The trial court convicted Anthony Cole Fontana, upon his plea of guilty, of aggravated
robbery with a knife and found that a deadly weapon was used or exhibited. A plea bargain
agreement was reached, and the trial court originally assessed his punishment at confinement for six
years in accordance with the plea agreement. However, the trial court granted appellant’s motion
for new trial as to punishment only. After a new punishment hearing, the trial court assessed
punishment at confinement for five years. We affirm.
        In his sole issue on appeal, appellant contends that the trial court abused its discretion in
assessing his punishment. Appellant argues that the trial court only “gave passing notice to [his]
significant brain injury problems.” Appellant asserts that he was, therefore, denied a fair trial and
should have been placed on deferred adjudication and asks that this court remand for new
punishment. Appellant does not challenge his conviction or his plea of guilty.
        TEX . PENAL CODE ANN . § 29.03 (Vernon 2003) defines the offense of aggravated robbery
and declares it to be a first degree felony. TEX . PENAL CODE ANN . § 12.32 (Vernon 2003) provides
that a person convicted of a first degree felony offense shall be confined for life or for a term of not
more than ninety-nine years but not less than five years. An optional $10,000 fine is also authorized.
        The trial court assessed appellant’s punishment at the minimum authorized under the
applicable law and less than the terms to which he had originally agreed. A penalty assessed within
the range of punishment established by the legislature will not be disturbed on appeal. Jackson v.
State, 680 S.W.2d 809 (Tex. Crim. App. 1984); Bradfield v. State, 42 S.W.3d 350, 354 (Tex.
App.—Eastland 2001, pet. ref’d).
        The record before this court does not support appellant’s contentions that he was denied a
fair trial. The issue is overruled.
        The judgment of the trial court is affirmed.


                                                               PER CURIAM


May 21, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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