Court of Appeals of Texas, Second District, Fort Worth
COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; WALKER and PITTMAN, JJ.
Edward Banister stipulated to two prior convictions for
driving while intoxicated (DWI) and entered an open plea of guilt
to the felony offense of DWI-third. See Tex. Penal
Code Ann. § 49.09(b) (West Supp. 2016). The trial court
accepted Banister's plea and ordered the preparation of a
presentence investigation report (PSI). After reviewing the
PSI and hearing evidence during the sentencing hearing, the
trial court found Banister guilty of driving while
intoxicated and sentenced him to five years'
imprisonment. In a single point, Banister argues that the
punishment imposed by the trial court constitutes an abuse of
discretion because it is excessive and disproportionate to
the offense in violation of the Eighth and Fourteenth
Amendments to the United States Constitution. For the reasons
set forth below, we will affirm.
concedes that he did not object on Eighth Amendment grounds
to his punishment when it was imposed, nor did he raise
Eighth Amendment grounds in a motion for new trial. We have
held on numerous occasions that disproportionate-sentence
claims must be preserved at the trial court level. See
Kim v. State, 283 S.W.3d 473, 475 (Tex. App.-Fort Worth
2009, pet. ref'd) (holding that disproportionate-sentence
claim was forfeited); Acosta v. State, 160 S.W.3d
204, 211 (Tex. App.-Fort Worth 2005, no pet.) (same); see
also Cisneros v. State, No. 02-06-00103-CR, 2007 WL
80002, at *1 (Tex. App.-Fort Worth May 23, 2007, pet.
ref'd) (mem. op., not designated for publication)
(collecting cases); cf. Burt v. State, 396 S.W.3d
574, 577 (Tex. Crim. App. 2013) ("A sentencing issue may
be preserved by objecting at the punishment hearing, or when
the sentence is pronounced."). We decline Banister's
invitation to overrule precedent. Because Banister did not
raise his disproportionate- sentence claim in the trial
court, it is forfeited. We overrule the portion of
Banister's first point challenging his sentence under the
also did not object at trial or argue in a motion for new
trial that the trial court violated his right to due process
by failing to consider the entire range of punishment.
However, the right to be punished after consideration of the
full range of punishment "is a substantive right
necessary to effectuate the proper functioning of our
criminal justice system" and is classified as a
waivable-only right. Grado v. State, 445 S.W.3d 736,
741-43 (Tex. Crim. App. 2014). As a result, a complaint that
the trial court failed to consider the full range of
punishment may be raised for the first time on appeal.
Id. at 743.
court's arbitrary refusal to consider the entire range of
punishment constitutes a denial of due process. Id.
at 739. Due process at a sentencing hearing requires a
neutral and detached hearing body or officer who does not
arbitrarily refuse to consider the entire range of punishment
or willfully impose a predetermined sentence. See Gagnon
v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1762
(1973); Grado, 445 S.W.3d at 739-40; Brumit v.
State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).
Concerning the due-process requirement that a trial court
imposing sentence must be neutral, absent a clear showing of
bias, we must presume the trial court's actions were
correct. Brumit, 206 S.W.3d at 645.
in support of his contention that he was deprived of due
process at the sentencing hearing, Banister points out that
his offense was enhanced by prior offenses that were almost
twenty years old and that he was in a "fragile medical
condition" due to having pancreatitis and
insulin-dependent diabetes. He articulates no explanation,
however, for how these facts resulted in a due-process
violation to him, nor does he point to any place in the
record where any purported due-process violation occurred.
Instead, Banister seems to argue that the trial court failed
to consider his medical conditions and the remoteness of his
prior DWI convictions when it assessed Banister's
sentence at five years' confinement. The record before us
does not establish that the trial court either arbitrarily
failed to consider the entire range of punishment or
willfully imposed a predetermined sentence. To the contrary,
the record reflects that the trial court ordered a PSI, heard
testimony from witnesses, and considered argument of counsel
prior to sentencing Banister. Additionally, the statute that
allows enhancement of a DWI conviction to a third-degree
felony if there are two prior DWI convictions places no limit
on the remoteness of the prior convictions. See Tex.
Penal Code Ann. § 49.09(b) (providing that DWI is a
third-degree felony if the person has previously been
convicted two times of any other offense relating to the
operation of a motor vehicle while intoxicated); Tietz v.
State, 256 S.W.3d 377, 378-80 (Tex. App-San Antonio
2008, pet. ref'd) (providing that because offense
occurred after September 2005-the effective date of the
revised version of section 49.09 that removed ten-year rule
on prior convictions used for enhancement-prior convictions
from 1989 and 1994 were available to enhance July 2006 DWI).
record here indicates that the trial court did
consider the full range of punishment because it imposed a
five-year sentence, which is less than the ten-year maximum
punishment allowed for a DWI conviction with two prior DWI
convictions; did not willfully impose a predetermined
sentence; and did not demonstrate bias. See Grados,
445 S.W.3d at 739-40; Brumit, 206 S.W.3d at 645;
see also Meighen v. State, No. 11-11-00259-CR, 2012
WL 3799664, at *1, *4 (Tex. App.-Eastland Aug. 31, 2012, pet.
ref'd) (mem. op., not designated for publication)
(holding that record indicated that trial court did consider
full range of punishment because it imposed five years'
confinement, which was in the middle of the punishment range
for a third-degree felony). Because the record does not
clearly indicate a denial of Banister's due-process
rights, we overrule the remainder of Banister's sole
overruled Banister's sole point, we affirm the trial
The two prior DWI convictions were from
1986 and 1987.
Even if we were to reach the merits of
Banister's disproportionate-sentence complaint, his
punishment is within the statutory limits for the offense.
See Tex. Penal Code Ann. § 12.34 (West 2011)
(providing that a third-degree felony is punishable by two to
ten years in prison and by a fine of up to $10, 000), §
49.09(b) (providing that DWI is a third-degree felony if the
person has previously been convicted two times of any other
offense relating to the operation of a motor vehicle while
intoxicated). Punishment that is imposed within the statutory
limits and that is based upon the sentencer's informed
normative judgment is generally not subject to challenge for
excessiveness except in "exceedingly rare"
situations. Kim, 283 ...