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

M E M O R A N D U M O P I N I O N

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 
2

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 
3

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.