                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00101-CR



        WILLIAM HUNTER WARD, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 8th District Court
               Hopkins County, Texas
               Trial Court No. 1222942




      Before Morriss, C.J., Moseley and Burgess, JJ.
        Memorandum Opinion by Justice Burgess
                                         MEMORANDUM OPINION
            William Hunter Ward entered pleas of true to allegations that he violated the terms and

conditions of his court-ordered community supervision. The trial court accepted Ward’s pleas,

adjudicated him guilty, and sentenced him to ten years’ confinement in prison. 1 In his sole point

of error, Ward contends that the trial court abused its discretion by assessing a ten-year sentence

and by failing to consider alternatives to that sentence. For the reasons below, we affirm the trial

court’s judgment of conviction.

I.          Background

            On February 28, 2013, Ward pled guilty to the offense of delivery of a controlled substance

in a drug-free zone. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(b), 481.134(d) (West

2017). Initially, the trial court deferred a finding of guilt and placed Ward on deferred adjudication

community supervision for a period of ten years, along with ordering a $2,000.00 fine, court costs,

and conditions of community supervision.

            On June 19, 2013, the State moved to proceed to adjudication of Ward’s guilt, alleging, in

part, that Ward (1) failed to abstain from the possession or use of alcoholic beverages and

controlled substances, (2) failed to report to his community supervision officer as ordered,

(3) failed to pay his community supervision fees, (4) failed to pay assessed fines, court costs, and

restitution, (5) failed to perform community service, and (6) failed to attend Moral Reconation

Therapy (MRT). On July 11, 2013, the trial court found that the allegations in the State’s motion

were true, granted the State’s motion, adjudicated Ward guilty, and sentenced him to ten years’


1
    The trial court also assessed restitution in the amount of $140.00.

                                                              2
confinement in prison. The trial court indicated, however, that it would consider reinstating

Ward’s community supervision in the future.

        On December 31, 2013, the trial court ordered Ward’s return from prison and then

suspended the remainder of his sentence and placed him on shock community supervision. Once

again, the trial court ordered Ward to abide by several conditions of community supervision, many

of which he had previously been ordered to follow on deferred adjudication community

supervision.

        On September 6, 2017, the State filed a second motion to revoke community supervision.

In the second motion, the State alleged that, among other things, Ward violated the conditions of

his community supervision by smoking marihuana, failing to complete community service, failing

to pay court costs and fees, and failing to successfully complete a drug and alcohol abuse program.

Ward entered pleas of true to the allegations contained in the State’s second motion. Following a

lengthy hearing on October 4, 2017, the trial court modified, but did not revoke, Ward’s

community supervision. 2

        On May 1, 2018, the State filed a third motion to revoke Ward’s community supervision.

In the third motion, the State alleged that Ward had tested positive for marihuana,

methamphetamine, and amphetamine and that he had admitted to smoking marihuana two or three

weeks before a drug test. The State also alleged that Ward failed to report to his community

supervision officer on two occasions. Ward entered written pleas of true to the State’s allegations


2
 In an effort to assist Ward in the successful completion of his community supervision, the trial court waived the
previously assessed fine and court costs, the balance on his court-appointed attorney fees, and the requirement that
Ward perform 180 hours of community service. Ward was ordered to comply with the remainder of his community
supervision conditions.
                                                         3
against him in the third motion. On May 21, 2018, the trial court held a contested sentencing

hearing to assess Ward’s sentence. After the close of evidence, the trial court revoked Ward’s

community supervision, sentenced him to ten years’ confinement in prison, and ordered him to

pay restitution in the amount of $140.00. This appeal followed.

II.      Discussion

         Ward concedes that the trial court’s revocation of his community supervision was not in

error. He contends, however, that the trial court abused its discretion when it sentenced him to ten

years in prison because the violations he committed did not support such a sentence. He also

contends that the trial court failed to consider other alternatives. According to Ward, “there were

several other ways of punishing [him] without imposing the statutorily-prescribed maximum.”

Specifically, Ward alleges, “The court failed to meaningfully consider the one approach (faith-

based rehabilitation) that had not been tried, and which, judging from the success of defendant’s

own sister, enjoyed a prospect of success.”

         In support of his position, Ward directs us to the following statements made by the trial

court during the October 2017 hearing on the State’s second motion to revoke his community

supervision:

         If you smoke weed again while you’re on probation, I’m sending you to prison for
         ten years. Let me just put that out there. Okay? If you smoke weed while you’re
         on probation, I’m sending you to prison for ten years. Don’t come in here and tell
         me anything else. I’ve heard all I need to hear.[3]




3
 However, after making its statement, the trial court also explained, “And I don’t know the last time I have been so all
over the map as to what I’m going to do. In my mind, at one point several times today, you were going to prison for
ten years; five, three, four, all over the place.”
                                                           4
Ward maintains that, during the May 2018 hearing, the trial court merely “followed through” with

the statement it made during the October hearing, thereby failing to consider the full range of

punishment or other lesser sentencing alternatives. We disagree.

            The Constitutional mandate of due process requires a neutral and detached judicial officer

who will consider the full range of punishment and mitigating evidence. See Gagnon v. Scarpelli,

411 U.S. 778, 788–87 (1973). A trial court denies due process when it arbitrarily refuses to

consider the entire range of punishment for an offense or refuses to consider mitigating evidence

and imposes a predetermined punishment. McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim.

App. 1983), overruled on other grounds by De Leon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App.

2004). In the absence of a clear showing to the contrary, we presume that the trial court was neutral

and detached. Fielding v. State, 719 S.W.2d 361, 366 (Tex. App.—Dallas 1986, pet. ref’d) (citing

Thompson v. State, 641 S.W.2d 920, 921 (Tex. Crim. App. [Panel Op.] 1982)).

            In this case, it is clear from the record that the trial court did not impose a predetermined

sentence and did not fail to consider alternative or lesser punishment.             In fact, the record

demonstrates quite the contrary. The trial court had already continued Ward’s community

supervision on two occasions, and even modified his conditions on one occasion in hopes that he

would successfully complete his period of supervision. Although the trial court reminded Ward

of the statement it had made in October, it also explained that it would consider any mitigating

evidence Ward presented during the May hearing in an effort to determine the appropriate

punishment. 4 As a result, Ward presented four witnesses on his behalf, including himself. The


4
    The trial court stated,
                                                     5
trial court subsequently determined that Ward’s position “[fell] a little flat because we were just

here months ago hearing basically the same thing.” Only after considering the evidence and the

prior opportunities it had given him, the trial court sentenced Ward to ten years’ confinement in

prison. For these reasons, we conclude that the trial court did not predetermine Ward’s sentence.

         Ward also states that a lesser sentence would have been “more appropriate considering the

relative mildness of the underlying crime and then-current violations.”                         Texas courts have

traditionally held that, as long as the punishment assessed is within the range prescribed by the

Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See Jordan v.

State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Here, Ward’s sentence falls within the

applicable range of two to ten years’ confinement in prison. 5

         However, that does not end our inquiry. A prohibition against grossly disproportionate

punishment survives under the Eighth Amendment to the United States Constitution apart from

any consideration of whether the punishment assessed is within the range established by the

Legislature. U.S. CONST. amend. VIII; see Solem v. Helm, 463 U.S. 277, 290 (1983); Harmelin v.




         And as I always am -- was in October, am today -- I’m all ears, as they say, and certainly willing to
         listen to what evidence may be there to compel me to do something differently, having heard an
         incredibly presented case by both sides last October.

                  ....

         I don’t know whether I will give the ten years or something less.
5
 Delivery of less than one gram of methamphetamine is a state-jail felony. TEX. HEALTH & SAFETY CODE ANN.
§ 481.112(b). If the offense occurs, “in, on, or within 1,000 feet of any real property that is owned, rented, or leased
to a school or school board,” the punishment range for delivering less than one gram of methamphetamine is enhanced
to that of a third-degree felony. TEX. HEALTH & SAFETY CODE ANN. § 481.134(d). The sentencing range for a third-
degree felony is not more than ten years or less than two years, and a fine not to exceed $10,000.00. TEX. PENAL
CODE ANN. § 12.34 (West 2011).
                                                           6
Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Jackson v. State, 989 S.W.2d 842, 846

(Tex. App.—Texarkana 1999, no pet.). Solem suggested, as a three-part test, that an appellate

court should consider: (1) the gravity of the offense compared with the harshness of the penalty;

(2) the sentences imposed for similar crimes in the same jurisdiction; and (3) the sentences imposed

for commission of the same crime in other jurisdictions. See Solem, 463 U.S. at 292.

       However, in Harmelin, the Court raised questions about the viability of the Solem three-

part test. In fact, it was subsequently held that proportionality survived Harmelin, but that the

Solem three-part test did not. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). In

light of Harmelin, the test has been reformulated as an initial threshold comparison of the gravity

of the offense with the severity of the sentence; and then, only if that initial comparison created an

inference that the sentence was grossly disproportionate to the offense, should there be a

consideration of the other two Solem factors—sentences for similar crimes in the same jurisdiction

and sentences for the same crime in other jurisdictions. Id.; Mullins v. State, 208 S.W.3d 469, 470

(Tex. App.—Texarkana 2006, no pet.).

       In this case, we do not believe that the sentence was grossly disproportionate to the gravity

of the offense. Yet, even if it were, there is no evidence in the record from which we are able to

compare Ward’s sentence to the sentences imposed on other persons in Texas or on persons in

other jurisdictions who committed a similar offense. See Latham v. State, 20 S.W.3d 63, 69 (Tex.

App.—Texarkana 2000, pet. ref’d); Davis v. State, 905 S.W.2d 655, 664–65 (Tex. App.—




                                                  7
Texarkana 1995, pet. ref’d). Without such evidence, the record before us does not support Ward’s

claim of demonstrable error. See Jackson, 989 S.W.2d at 846.

       We overrule Ward’s point of error.

III.   Conclusion

       We affirm the trial court’s judgment.




                                               Ralph K. Burgess
                                               Justice

Date Submitted:       August 31, 2018
Date Decided:         September 18, 2018

Do Not Publish




                                                 8
