Opinion
No. 06-10-00140-CR
Date Submitted: April 15, 2011.
Date Decided: April 18, 2011. DO NOT PUBLISH.
On Appeal from the 188th Judicial District Court, Gregg County, Texas, Trial Court No. 38260-A.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
After entry of an open plea of guilty, Anthony Larry Guilbeau, Jr., was convicted of possession of cocaine, in an amount of 200 grams or more but less than 400 grams, with intent to deliver, and was sentenced to thirty years' imprisonment. Guilbeau argues that the trial court failed to consider the entire range of punishment and that his sentence is disproportionate to the offense. Because Guilbeau has failed to preserve error on either claim, we affirm the trial court's judgment.
(1) Complaint Regarding Consideration of Full Range of Punishment Was Not Preserved
Guilbeau argues that the trial court "did not consider the full range of punishment, denying Appellant due process and due course of law."
A court denies due process and due course of law if it arbitrarily refuses to consider the entire range of punishment for an offense or refuses to consider the evidence and imposes a predetermined punishment. Such a complaint is not preserved for review unless a timely objection is raised.Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App.-Texarkana 2002, pet. ref'd) (citations omitted); see Washington v. State, 71 S.W.3d 498, 499 (Tex. App.-Tyler 2002, no pet.). The record demonstrates that Guilbeau failed to raise this issue with the trial court. Because this point of error was not preserved, it is overruled. See TEX. R. APP. P. 33.1. Even if Guilbeau had preserved error, this complaint is without merit. Due process requires the trial court conduct itself in a neutral and detached manner. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). "[A] trial court's arbitrary refusal to consider the entire range of punishment in a particular case violates due process." Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005) (per curiam); see also Brumit, 206 S.W.3d at 645. Without a clear showing of bias, however, we presume the trial court's actions were correct. Brumit, 206 S.W.3d at 645. Guilbeau's brief fails to demonstrate any bias or merit to the claim that the trial court arbitrarily refused to consider the entire range of punishment. Guilbeau's briefing states that the record does not indicate whether the trial court considered community supervision and does not reveal "what evidence, circumstances[,] or options were considered and relied on by the Court." The brief does not discuss any action or inaction by the trial court demonstrating bias, but rather, merely speculates that the trial court failed to consider the entire range of punishment. This issue is overruled.
(2) Complaint that Sentence Is Disproportionate Was Not Preserved
Guilbeau's motion for new trial argued that his thirty-year sentence was disproportionate to the offense. On appeal, he simply states that the sentence was excessive, although within the legal range of punishment, because:The Appellant did not have an extensive criminal history in this case. He only had two previous convictions, one misdemeanor and one felony. Appellant expressed remorse and shame for committing the offense and is capable of obtaining gainful employment. The Appellant further testified that he is the father of thirteen year old a child [sic] and was active in raising and supporting his son.To preserve error for appellate review, a defendant must make a timely, specific objection and obtain a ruling from the trial court. TEX. R. APP. P. 33.1. This requirement applies even to assertions that a sentence is cruel and unusual. Richardson v. State, 328 S.W.3d 61, 72 (Tex. App.-Fort Worth 2010, pet. ref'd) (citing Solis v. State, 945 S.W.2d 300, 301 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) (cited by Jackson v. State, 989 S.W.2d 842, 844 n. 3 (Tex. App.-Texarkana 1999, no pet.)); see also Henderson v. State, 962 S.W.2d 544, 558 (Tex. Crim. App. 1997)). While Guilbeau did not object to the sentence during the punishment hearing, he did timely file a motion for new trial, complaining that his "sentence was disproportionate to the offense." The problem here is that nothing suggests Guilbeau actually presented his claim to the trial court. To preserve the issue of disproportionate sentencing by motion for new trial, a defendant must present the motion to the trial court. Richardson, 328 S.W.3d at 72; see TEX. R. APP. P. 21.6. "The defendant cannot merely file the motion for new trial, but must ensure that the trial court has actual notice of the motion." Richardson, 328 S.W.3d at 72 (citing Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998)). "Actual notice may be shown by such things as the judge's signature or notation on a proposed order or by a hearing date set on the docket." Id. In Richardson, the court noted:
There is no presentment of the motion shown in this record. There is no entry on the trial court's docket sheet regarding the motion for new trial, no hearing was set or held, there is no signature by the judge on the motion, and there is no indication in the record that the trial court had actual knowledge that the motion for new trial was filed. Thus, Richardson has failed to preserve his claim regarding the alleged disproportionate sentencing for our review.Id. Likewise, this record does not suggest that Guilbeau presented the motion for new trial to the trial court. There is no entry on the court's docket sheet referencing the motion, no evidence of any hearing, no signature by the judge on the motion, and no indication that the trial court otherwise had actual knowledge of the motion for new trial. Therefore, we conclude Guilbeau has failed to preserve this point of error for our review. It is overruled. We affirm the trial court's judgment.
Although Guilbeau filed a motion for new trial, his point of error was not contained within that motion.
The record demonstrates that Guilbeau had previously committed the crime of "second degree possession of a controlled substance where he was placed on probation for ten years and at some point was revoked and he was given eight years TDC." In a prior "possession of marijuana misdemeanor case," "[h]e was placed on probation. A motion to revoke was filed on that." The trial court also heard from Guilbeau that he had once run to Alabama when he became aware that officers had a warrant for his arrest.
Even if the contention had been preserved for review, the contention fails. Since the sentence is within the statutory range, there is no indication that the severity of the sentence is grossly disproportionate to the gravity of the offense, and no evidence establishes the sentence's disproportionality as compared with other sentences in this or other jurisdictions. See Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.-Texarkana 2006, no pet.).