Alfonzo Butler, Jr. v. The State of Texas Appeal from Criminal District Court No. 1 of Tarrant County (memorandum opinion)
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00007-CR ___________________________ ALFONZO BUTLER JR., Appellant V. THE STATE OF TEXAS On Appeal from Criminal District Court No. 1 Tarrant County, Texas Trial Court No. 1698886D Before Kerr, Birdwell, and Wallach, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION The State indicted Appellant Alfonzo Butler Jr. for the first-degree aggravated assault, see Tex. Penal Code Ann. § 22.02(b)(3), and, in an alternate count, the seconddegree aggravated assault of Eduardo Ramirezsosa, see id. § 22.02(a). A jury found Butler guilty of first-degree aggravated assault as alleged in the first count.1 The trial court found true the allegation that Butler had previously been convicted of two felonies. This finding raised the punishment range to life in prison or any term of not more than 99 years or less than 25 years. See id. § 12.42(d). The trial court then sentenced Butler to 40 years’ imprisonment. Butler raises one point on appeal—that the sentence assessed was grossly disproportionate to the offense and therefore violative of the Eighth Amendment’s prohibition against cruel and unusual punishment. See U.S. Const. amend. VIII. We have consistently held that a defendant must preserve error on a grossly disproportionate sentence complaint by objecting in the trial court at the time the sentence was imposed or, at the latest, raising the issue in a motion for new trial.2 See, While driving on an expressway, Butler cut off another driver, Ramirezsosa. After Ramirezsosa honked in response, Butler fired a weapon at Ramirezsosa and wounded him in the hand. When the police arrested Butler, they found a .40 caliber handgun in his car. 1 Several other appellate courts have also so held. See, e.g., Caudill v. State, No. 0719-00331-CR, 2021 WL 2979036, at *2 (Tex. App.—Amarillo July 14, 2021, no pet.) (mem. op., not designated for publication); Simmons v. State, No. 03-14-00707-CR, 2017 WL 1130372, at *4 (Tex. App.—Austin Mar. 23, 2017, no pet.) (mem. op., not designated for publication); Noland v. State, 264 S.W.3d 144, 151–52 (Tex. App.— 2 2 e.g., Sample v. State, 405 S.W.3d 295, 304–05 (Tex. App.—Fort Worth 2013, pet. ref’d); Russell v. State, 341 S.W.3d 526, 527–28 (Tex. App.—Fort Worth 2011, no pet.); Laboriel-Guity v. State, 336 S.W.3d 754, 756 (Tex. App.—Fort Worth 2011, pet. ref’d); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d). Because Butler did neither, he has not preserved his complaint for our review. Having held that error was not preserved for our review, we overrule Butler’s sole point and affirm the trial court’s judgment. /s/ Mike Wallach Mike Wallach Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: September 7, 2023 Houston [1st Dist.] 2007, pet. ref’d); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.— Houston [14th Dist.] 2001, pet. ref’d); Smith v. State, 10 S.W.3d 48, 49 (Tex. App.— Texarkana 1999, no pet.). 3
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