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

         ______________________________

               No. 06-08-00095-CR
         ______________________________


         GARY TRISTON GUICE, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 188th Judicial District Court
                 Gregg County, Texas
              Trial Court No. 35,852-A




      Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Carter
                                   MEMORANDUM OPINION

       Gary Triston Guice appeals from his conviction on his open plea of guilty to three felony

offenses in a single proceeding. In this case, he pled guilty to the offense of aggravated robbery. The

issue of punishment was tried to the trial court, which sentenced Guice to life imprisonment in this

case, to run concurrently with the sentences in the other two cases.1

       On appeal, Guice raises two contentions of error. First, he argues that the trial court

committed reversible error by failing to consider the entire range of punishment for the offense, and

second, that the punishment imposed violated the right against cruel and unusual punishment.

Failure to Consider Entire Range of Punishment

       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, 786–87 (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. Ex parte Brown, 158 S.W.3d 449, 454 (Tex. Crim. App. 2005). This

occurs when a trial court actually assesses punishment at revocation consistent with the punishment

it has previously announced it would assess upon revocation. Id. at 456–57; Sanchez v. State, 989

S.W.2d 409, 411 (Tex. App.—San Antonio 1999, no pet.). In the absence of a clear showing to the

       1
        In cause number 06-08-00096-CR (trial cause number 36,392-A), Guice was convicted of
sexual assault and sentenced to twenty years' imprisonment. In cause number 06-08-00097-CR (trial
number 36,394-A), Guice was convicted of aggravated kidnapping and sentenced to life
imprisonment.

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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. 1982)).

       Guice contends the record shows that the trial court refused to consider the full range of

punishment and thus violated his due process rights because of the following discussion:

       THE COURT:             Now, you are requesting -- as I understand it, you've made an
       application for probation in each case; is that correct?

       THE DEFENDANT: Yes, sir.

       THE COURT:            I'm certainly going to listen to your request for probation, but
       I'm under no obligation to grant probation. Do you understand that?

       THE DEFENDANT: Yes, sir.

       Counsel goes on to point out that just prior to that statement, the trial court had not

mentioned the possibility of community supervision when it admonished Guice about the possible

range of punishment, and also that trial counsel for Guice had not mentioned community supervision

during punishment recommendation, instead seeking a range of between thirty and forty years. The

court also made the following comment:

       There are no mitigating circumstances in this case. I agree wholeheartedly with the
       State that these cases involve maximum sentences, and I'm going to impose the
       maximum sentence in each case.

Counsel suggests that this combination of factors shows that the trial court did not consider the entire

possible range of punishment when assessing punishment for Guice. We disagree.



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       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. Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002); Johnson v. State, 982

S.W.2d 403, 405 (Tex. Crim. App. 1998). 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); Washington v. State, 71 S.W.3d 498, 499 (Tex. App.—Tyler 2002, no pet.); Cole v. State, 757

S.W.2d 864, 865 (Tex. App.—Texarkana 1988, pet. ref'd). No objection was made to the court's

ruling; thus, the complaint was waived.

       Even if we could properly reach this issue, the record does not show that the trial court

imposed a "predetermined" punishment, see Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App.

2006), nor does it show that the court did not consider the possibility of community supervision—it

does show that the court believed community supervision was not appropriate for this particular

defendant's situation. Thus, no error would be shown in any event.

Constitutionally Disproportionate Sentencing

       Guice contends in his second point of error that the punishment assessed is constitutionally

disproportionate to his crime.

       To preserve this complaint for appellate review, Guice must have presented to the trial court

a timely request, objection, or motion that stated the specific grounds for the desired ruling, or the

complaint must be apparent from the context. See TEX . R. APP . P. 33.1(a)(1); Harrison v. State, 187



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S.W.3d 429, 433 (Tex. Crim. App. 2005); Williams v. State, 191 S.W.3d 242, 262 (Tex.

App.—Austin 2006, no pet.) (claims of cruel and unusual punishment must be presented in timely

manner); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd)

(failure to complain to trial court that sentences were cruel and unusual waived claim of error for

appellate review).

        We have reviewed the record of the trial proceeding. No relevant request, objection, or

motion was made at trial. And, while this Court has held that a motion for new trial is an appropriate

way to preserve this type of claim for review (see Williamson v. State, 175 S.W.3d 522, 523–24

(Tex. App.—Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.—Texarkana

2005, no pet.)), Guice's motion for new trial did not contain an allegation that the sentence was

disproportionate to the offense. Guice's motion for new trial contains a contention that "the

punishment assessed violated the Eighth Amendment and Article 1, Section 13, Texas Constitution,

in its severity, indicating the trial court failed to consider the full range of punishment." He has not

preserved the disproportionality claim for review on appeal.

        We affirm the trial court's judgment.




                                                Jack Carter
                                                Justice

Date Submitted:         December 22, 2008
Date Decided:           December 23, 2008

Do Not Publish

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