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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