Opinion filed February 7, 2013




                                             In The


         Eleventh Court of Appeals
                                          __________

                                    No. 11-12-00054-CR
                                        __________

                          PAUL CURTIS MILLER, Appellant

                                                V.

                              STATE OF TEXAS, Appellee


                           On Appeal from the 70th District Court
                                    Ector County, Texas
                              Trial Court Cause No. A-37,244



                            MEMORANDUM OPINION
       Paul Curtis Miller appeals from the revocation of his community supervision and the
adjudication of his guilt for the offense of aggravated assault with a deadly weapon. He was
originally placed on community supervision for a period of seven years. Upon the revocation,
the trial court set his punishment at confinement for forty years in the Texas Department of
Criminal Justice, Institutional Division, and assessed a fine of $767. In three issues, he contends
that the waiver he executed at his adjudication hearing should not bar the appeal of his sentence
in that it was not knowing and voluntary because it occurred prior to the pronouncement of
sentence and was not given in exchange for an agreed sentence or sentencing recommendation,
that his forty-year sentence violates state and federal prohibitions against cruel and unusual
punishments, and that the trial court abused its discretion when it failed to hold a hearing on his
motion for new trial. We affirm.
       Miller contends in Issue One that the appellate waiver he executed at his adjudication
hearing should not bar the appeal of his sentence in that it was not knowing and voluntary
because it occurred prior to the pronouncement of sentence and was not given in exchange for an
agreed sentence or sentencing recommendation. The State concedes that Miller’s waiver is not
binding because the consequences of the waiver were not known with certainty at the time it was
executed and concedes that the waiver does not bar the appeal in this case. Inasmuch as we
agree with Miller and the State that Miller has the right to appeal and inasmuch as we are
considering Miller’s appeal, we find this issue to be moot. We overrule Issue One.
       Miller urges in Issue Two that his forty-year sentence violates the ban on cruel and
unusual punishment prescribed by the Eighth Amendment of the United States Constitution and
Article I, section 13 of the Texas Constitution. An appellant may not assert error pertaining to
his sentence or punishment when he has failed to object or otherwise raise the error in the trial
court. TEX. R. APP. P. 33.1(a)(1); Thompson v. State, 243 S.W.3d 774, 775 (Tex. App.—Fort
Worth 2007, pet. ref’d). Miller made no objection to his sentence at trial, but did file a motion
for new trial in which he contended that his forty-year sentence constitutes cruel and unusual
punishment in violation of the United States and Texas Constitutions.
       In order to preserve error, a motion for new trial must be presented to the trial court. See
TEX. R. APP. P. 21.6; Thompson, 243 S.W.3d at 776. In order to show presentment, the movant
in a motion for new trial has the burden of showing that the motion was actually delivered to the
trial court or showing that the motion was otherwise brought to the attention or actual notice of
the trial court. Thompson, 243 S.W.3d at 776. Although Miller filed a motion for new trial,
there is nothing in the record to show that he presented it to the trial court by providing the actual
notice required.    Rather than showing actual notice to the trial court, the “Certificate of
Presentment” contained in his motion only showed that the motion was hand delivered to the
trial judge’s office. This certificate of presentment is, therefore, insufficient to show presentment
as required by the rule. See Hiatt v. State, 319 S.W.3d 115, 122 (Tex. App.—San Antonio 2010,
pet. ref’d); Owens v. State, 832 S.W.2d 109, 111 (Tex. App.—Dallas 1992, no pet.). These cases
suggest that such a certificate alone would have been insufficient even if it were certified that the
motion had been presented to the trial court. Hiatt, 319 S.W.3d at 122; Owens, 832 S.W.2d at

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111. Consequently, Miller failed to preserve error with respect to this issue. We overrule Issue
Two.
       Miller asserts in Issue Three that the trial court abused its discretion by not having a
hearing on his motion for new trial. Because Miller never presented a motion for new trial that
included a request for a hearing and because there is no showing that such a request was ever
brought to the attention of the trial court in any way, the issue with respect to the trial court
failing to hold a hearing is not preserved for review. Rozell v. State, 176 S.W.3d 228, 231 (Tex.
Crim. App. 2005). We overrule Issue Three.
       The judgment is affirmed.


                                                                                PER CURIAM


February 7, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill.1




       1
           John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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