Opinion filed May 21, 2009

In The

Eleventh Court of Appeals ____________ No. 11-07-00300-CR __________ ANTHONY COLE FONTANA, Appellant V. STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1 Tarrant County, Texas Trial Court Cause No. 1044837D

MEMORANDUM OPINION The trial court convicted Anthony Cole Fontana, upon his plea of guilty, of aggravated robbery with a knife and found that a deadly weapon was used or exhibited. A plea bargain agreement was reached, and the trial court originally assessed his punishment at confinement for six years in accordance with the plea agreement. However, the trial court granted appellant’s motion for new trial as to punishment only. After a new punishment hearing, the trial court assessed punishment at confinement for five years. We affirm.

In his sole issue on appeal, appellant contends that the trial court abused its discretion in assessing his punishment. Appellant argues that the trial court only “gave passing notice to [his] significant brain injury problems.” Appellant asserts that he was, therefore, denied a fair trial and should have been placed on deferred adjudication and asks that this court remand for new punishment. Appellant does not challenge his conviction or his plea of guilty.

TEX . PENAL CODE ANN . § 29.03 (Vernon 2003) defines the offense of aggravated robbery and declares it to be a first degree felony. TEX . PENAL CODE ANN . § 12.32 (Vernon 2003) provides that a person convicted of a first degree felony offense shall be confined for life or for a term of not more than ninety-nine years but not less than five years. An optional $10,000 fine is also authorized.

The trial court assessed appellant’s punishment at the minimum authorized under the applicable law and less than the terms to which he had originally agreed. A penalty assessed within the range of punishment established by the legislature will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984); Bradfield v. State, 42 S.W.3d 350, 354 (Tex. App.—Eastland 2001, pet. ref’d).

The record before this court does not support appellant’s contentions that he was denied a fair trial. The issue is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

May 21, 2009 Do not publish. See TEX . R. APP . P. 47.2(b).

Panel consists of: Wright, C.J., McCall, J., and Strange, J.