F




                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00276-CR


AGUSTIN GARCIA                                                   APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                   ----------

                       MEMORANDUM OPINION1
                                   ----------

                      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’

      1
      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



                                         2
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.




                                         3
                             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




                                    4
