COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

ERIC LEE HARRINGTON , Appellant ,

v. THE STATE OF TEXAS , Appellee. § § § § § § No. 08

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Appeal from the
372 nd District Court of Tarrant County , Texas (TC# 12 9 0357 D )

O P I N I O N Eric Lee Harrington appeals the trial court’s judgment convicting him of aggravated robbery with a deadly weapon and sentencing him to 20 years ’ imprisonment. 1 In two issue s , Harrington challenges the propriety and severity of his sentence, asserting it is unjust and grossly disproportionate to his crime

. 2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND This case is one of six stemming from two separate incidents involving armed robberies

. In one of the incidents, Harrington fired a weapon at two bystanders, striking one three times. In the other incident

— t he one out of which this particular case arose

— Harrington brandished a

1 Harrington is also appealing the trial court’s judgments in five companion cases. Those case s have been assigned appellate c ause n os. 08

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2 Harrington raises these same issues in the five companion cases identified in footnot e number one

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weapon but did not fire it. After being indicted for aggravated robbery with a deadly weapon, Harrington pled guilty without the benefit of a plea bargain

. The trial court accepted Ha rrington’s guilty plea and admonished him that the full range of punishment would be considered . I n conjunction with Harrington’ s request for community supervision, the trial court ordered a
pre - sentence investigation report and reset the case for a sente ncing hearing. At the conclusion of that hearing, the trial court sentenced Harrington to 2 0 years ’ imprisonment

. PRESERVATION OF COMPLAINTS In his first issue, Harrington claims his sentence , though within the range prescribed by
statute, is unjust and therefore improper

. See T EX .P ENAL C ODE A NN
. § § 29.02(a), 29.03(a)(2) (West 2011) (aggravated robbery is a first degree felony), T EX .P ENAL C ODE A NN
. § 12.32 (West 2011) (punishment range for first degree felony is 5 to 99 year s or life in prison). In his sec ond issue, Harrington contends his sentence constitutes cruel and unusual punishment under both the United States and Texas Constitut ion s because it is grossly disproportionate to his crime. The State counters that Harrington failed to preserve both of hi s complaints for appellate review because he did not raise them in the trial court. We agree. To preserve error relating to the propriety and severity of punishment, including that the
sentence imposed constitutes cruel and unusual punishment , a defendant must object to his
sentence in the trial court

. See Mercado v. State , 718 S.W.2d 291, 296 (Tex.Crim. App. 1986) (“ As a general rule, an appellant may not assert error pertaining to his sentence or punishment where he failed to object or otherw ise raise such error in the trial court. ”); Rhoades v.
State , 934 S.W.2d 113, 120 (Tex.Crim.App. 1996) (concluding appellant failed to preserve challenge to sent ence under state constitution’ s protection against cruel and unusual punishment3

because he did n ot object in trial court); Curry v. State , 910 S.W.2d 490, 497 (Tex.Crim.App. 1995)(concluding appellant failed to preserve challenge to sent ence under federal constitution’ s protection against cruel and unusual punishment because he did not object in tria l court); Rodriguez v. State , 917 S.W.2d 90, 92 (Tex.App.

-- Amarillo 1996, pet. r ef’ d) (“[N] othing is preserved for review because appellant failed to raise the severity of his sentence when punishment was assessed or in a new trial motion. ”)

. Here, Harringt on did not object to the propriety or severity of his twenty

- year sen tence at punishment . When asked by the trial court if there was any legal reason why sentence could not be imposed then and there, Harrington’s trial counsel responded, “No.” Nor does the record indicate Harrington r aised the issue in a post

- judgment mot ion. B y failing to object to the propriety and severity of his sentence in the tr ial court , Harrington has forfeited appe llate review of his complaints. Harrington does not address the issue of waiver on appeal . However, in his original briefing , Harrington depicts his first issue

— presumably in the hopes of obtaining appellate review

— as a c hallenge to the “sufficiency of the evidence for a particular sentence.” But the severity of a se ntence imposed within the statutory range “is not subject to a sufficiency of the evidence review on appeal. ” 3 Jarvis v. State , 315 S.W.3d 158, 162 (Tex .App.

-- Beaumont 2010, no pet.) [Internal citations omitted]

. As noted previously, Harrington’s 20

- year sentence is within the punishment range for a first degree felony

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3 Unlike most trial errors, which are fo rfeited if not asserted in the trial court, a complaint concerning the imposition of a n illegal sentence, i.e. , one outside the applicable range of pu nishment, may be considered for the first time on appeal. Mize l l v. State , 1 1 9 S.W.3d 804, 806 (Tex .Crim. App. 2003). Ha rrington raises no such complaint on appeal.4

Harrington ’s first and second issues are overruled

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CONCLUSION The trial court ’s judgment is affirmed

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July 31, 2014 YVONN E T. RODRIGUEZ, Justice Before McClure, C.J., Rivera, and Rodriguez, JJ. (Do Not Publish)

4 Given our conclusion that Harrington forfeited appellate review of his complaints , w e decline his invitation “to review Texas law and consider whether it is time for Appellate Courts to review the appropriate ness of punishment sentences.”