                                 NO. 12-15-00195-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

STEVEN LAMON MOORE,                             §      APPEAL FROM THE 7TH
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      SMITH COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Steven Lamon Moore appeals his conviction for delivery of a controlled substance. In
two issues, Appellant argues that the trial court failed to consider the full range of punishment.
We affirm.


                                         BACKGROUND
       Appellant was charged by indictment with delivery of a controlled substance. He pleaded
“guilty” to the offense and “true” to two felony enhancements. The trial court found Appellant
guilty and the enhancement paragraphs true. Following a bench trial on punishment, the trial
court assessed Appellant’s punishment at imprisonment for thirty-five years.         This appeal
followed.


                     FAILURE TO CONSIDER FULL RANGE OF PUNISHMENT
       In Appellant’s first and second issues, he contends that he was denied due process and
due course of law by the trial court’s failure to consider the full range of punishment when
assessing his sentence.
Standard of Review and Applicable Law
       Due process requires a neutral and detached hearing body or officer.             Gagnon v.
Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761, 36 L. Ed. 2d 656 (1973). It is a denial of due
process for a trial court to arbitrarily refuse to consider the entire range of punishment for an
offense or to refuse to consider the evidence and impose a predetermined punishment.
McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983). In the absence of a clear
showing of bias, we will presume the trial judge was a neutral and detached officer. Earley v.
State, 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi 1993, pet. dism’d). Bias is not shown
when (1) the trial court hears extensive evidence before assessing punishment, (2) the record
contains explicit evidence that the trial court considered the full range of punishment, and (3) the
trial court made no comments indicating consideration of less than the full range of punishment.
Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).                In applying our state
constitutional guarantee of due course of law, we follow contemporary federal due process
interpretations. U.S. Gov’t v. Marks, 949 S.W.2d 320, 326 (Tex. 1997); Fleming v. State, 376
S.W.3d 854, 856 (Tex. App.—Fort Worth 2012), aff’d, 455 S.W.3d 577 (Tex. Crim. App. 2014),
cert. denied, 135 S. Ct. 1159, 190 L. Ed. 2d 913 (2015).
Analysis
       Appellant argues that when the trial court found him guilty before hearing the evidence
on punishment, it foreclosed the possibility of granting him deferred adjudication. Appellant
contends that such foreclosure constituted a failure to consider the full range of punishment,
resulting in a denial of his due process right to a detached and neutral magistrate. The State
responds that Appellant failed to preserve this issue by a timely objection, the enhanced
punishment range is twenty-five years to life, and the trial court did not abuse its discretion by
concluding that Appellant is a poor candidate for deferred adjudication community supervision.
Appellant argues that the alleged error is structural, does not require preservation by objection,
and is not subject to a harm analysis.
       Preservation of error is a systemic requirement on appeal. Wilson v. State, 311 S.W.3d
452, 473 (Tex. Crim. App. 2010). It is the duty of the appellate courts to ensure that a claim is
preserved in the trial court before addressing its merits. Id. In general, a claim is preserved for
appellate review only if (1) the complaint was made to the trial court by a timely and specific
request, objection, or motion, and (2) the trial court either ruled on the request, objection, or



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motion or refused to rule and the complaining party objected to that refusal. TEX. R. APP. P.
33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). If a party fails to properly
object to errors at trial, even constitutional errors can be forfeited. Clark v. State, 365 S.W.3d
333, 339 (Tex. Crim. App. 2012).
       But Rule of Appellate Procedure 33.1 is not absolute. Grado v. State, 445 S.W.3d 736,
739 (Tex. Crim. App. 2014). Whether it applies to a particular complaint turns on the nature of
the right allegedly infringed. Id. The court of criminal appeals has separated defendants’ rights
into three categories: (1) absolute requirements and prohibitions, which cannot lawfully be
avoided even with partisan consent; (2) waivable-only rights, which must be implemented unless
expressly waived; and (3) forfeitable rights, which are forfeited unless requested by the litigant.
Id.; Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by
Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). Rule 33.1’s preservation requirement
applies only to the last category. Id.
       The right to be sentenced after consideration of the full range of punishment is a category
two waivable-only right. Grado, 445 S.W.3d at 743. Therefore, Appellant’s complaint that the
trial court failed to consider deferred adjudication when assessing his punishment was not
forfeited by his failure to object at trial. See id. Furthermore, the record does not show that
Appellant expressly waived the right at issue. We therefore consider the merits of Appellant’s
complaint. See id.
       Contrary to Appellant’s assertion, the trial court did not foreclose the possibility of
granting him deferred adjudication when it orally found him guilty before hearing the evidence
on punishment. On July 14, 2015, Appellant pleaded “guilty,” and the trial court stated that it
found him guilty. The trial court then postponed sentencing until a presentence investigation
could be conducted. On August 3, 2015, the trial court heard punishment evidence and closing
arguments. It assessed Appellant’s punishment at imprisonment for thirty-five years. The
written judgment states that the judgment was entered on August 4, 2015.
       Appellant asserts that the trial court entered a finding of guilt immediately after his plea
on July 14. But the record shows that the court made an oral finding of guilt at that time and
entered the finding of guilt in the judgment on August 4. An oral finding of guilt does not divest
a trial court of the power to grant deferred adjudication. West v. State, 702 S.W.2d 629, 635
(Tex. Crim. App. 1986). Thus, the record does not support Appellant’s argument that the trial



                                                3
court foreclosed the possibility of granting deferred adjudication prior to hearing evidence on
punishment. Moreover, nothing in the record indicates that the trial court did not consider
granting deferred adjudication. Accordingly, we overrule Appellant’s first and second issues.


                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.

                                                                 JAMES T. WORTHEN
                                                                    Chief Justice



Opinion delivered July 20, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 20, 2016


                                         NO. 12-15-00195-CR


                                    STEVEN LAMON MOORE,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-0446-15)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
