                                    NOS. 12-10-00371-CR
                                         12-10-00372-CR
                                         12-10-00373-CR
                                         12-10-00379-CR

                          IN THE COURT OF APPEALS

             TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

GAYLON HAROLD RAY,                                    §             APPEAL FROM THE 7TH
APPELLANT

V.                                                    §             JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                              §             SMITH COUNTY, TEXAS

                                      MEMORANDUM OPINION
       Gaylon Harold Ray appeals his convictions for forgery, two theft offenses, and tampering
with a government record. In two issues, Appellant contends that the trial court denied him due
process and due course of law by failing to consider the full range of punishment and improperly
assessing what the court believed a jury would assess as punishment. We affirm.


                                               BACKGROUND
       Appellant was charged by separate indictments in four cause numbers with forgery, two
theft offenses, and tampering with a government record. All of the offenses were state jail
felonies.     Each indictment included an enhancement paragraph alleging two prior felony
convictions, elevating the punishment range for the charged offense to that of a second degree
felony.1
       Appellant entered an open plea of guilty to each of the four offenses and a plea of true to

       1
            See TEX. PENAL CODE ANN. § 12.42(a)(2) (Vernon 2011).
the enhancement paragraphs. The trial court found Appellant guilty of all four offenses and the
enhancement paragraphs in three offenses to be true. For the forgery offense, the stipulation page
presented to the trial court at the punishment hearing did not contain evidence to support the
enhancement paragraph. Accordingly, for this offense, the trial court sentenced Appellant to
imprisonment for two years. For each of the three remaining offenses, the trial court sentenced
Appellant to imprisonment for twenty years. These appeals followed.


                                          PUNISHMENT
       In his first issue, Appellant argues that the trial court did not consider the full range of
punishment, denying him due process and due course of law. In his second issue, Appellant
argues that the trial court improperly assessed what the court believed a jury would assess as
punishment, denying him due process and due course of law. Because these two issues are
interrelated, we address them together.
Applicable Law
       The Fourteenth Amendment provides that the state may not “deprive any person of life,
liberty, or property, without due process of law.” U.S. CONST. amend. XIV; see also TEX. CONST.
art. I, § 19 (“No citizen of this State shall be deprived of life, liberty, property, privileges or
immunities, or in any manner disfranchised, except by the due course of the law of the land.”).
Due process requires the trial court to conduct itself in a neutral and detached manner. Gagnon v.
Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1762, 36 L. Ed. 2d 656 (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. Additionally, a
trial court that refuses to consider the evidence or imposes a predetermined punishment denies a
defendant due process. Howard v. State, 830 S.W.2d 785, 787 (Tex. App.–San Antonio 1992, pet
ref’d). However, absent a clear showing of bias, we presume the trial court’s actions were
correct. Brumit, 206 S.W.3d at 645 (bias not shown when trial court hears extensive evidence
before assessing punishment, record contains explicit evidence that trial court considered full
range of punishment, and trial court made no comments indicating consideration of less than full
range of punishment).
       The Houston First Court of Appeals found no due process violation where a trial court



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stated that it was forced to assess the maximum because juries had assessed the maximum in less
heinous cases.2 Jaenicke v. State, 109 S.W. 3d 793, 797 (Tex. App.–Houston [1st Dist.] 2003,
pet. ref’d). Specifically, the court concluded that this statement was not sufficient to rebut the
presumption of a neutral and detached trial court. Id. The court reasoned that this statement
implicitly showed the trial court considered the evidence and compared the appellant’s case to
other cases. Id. Thus, by making this statement, the trial court merely explained why the
maximum punishment was appropriate and attempted to assess a sentence proportionate to the
seriousness of the appellant’s crime. Id. The court further noted that the trial court listened to
witnesses and that the statement did not show the trial court failed to consider the full range of
punishment or imposed a predetermined punishment. Id.
Appellant’s Argument
         Appellant calls our attention to the following statements made by the trial court during the
punishment hearing:


         . . . Mr. Ray, your lawyer’s heard this, the State’s lawyer’s heard it, because I’m convinced it’s the
         proper way for the courts to evaluate what they do whenever they’re asked to be the sentencing
         entity in Texas for criminal cases. And I always try to evaluate the case based upon what I would do
         if I were a jury and sitting over there in that jury box, making the same decision I’m required to do
         whenever the defendant elects to have the Court handle punishment. And I have no doubt what my
         decision would be over there. And I have no doubt what I think the other 11 citizens of Smith
         County would think about an individual that comes before them that either pleads guilty or is found
         guilty of offenses that are before me today with your history. . . .

         . . . Both the State and your witness and your lawyer have argued that I should send you to some type
         of substance treatment program, which, I will make an affirmative finding in the judgment. That’s
         about all the trial courts get to do. And we will hope that with your history, the penitentiary will
         think it’s beneficial to put you in some type of drug treatment program. But whether they do or they
         don’t, at some point, I agree with your lawyer, you’ll be released. And you’ll be back out on the
         street. . . .

         . . . But, ultimately, it’s going to be Mr. Ray making the decision whether he wants to go back and do
         these things again. Because I’m going to give you the max. Because I think that’s what a Smith
         County jury would do.


         Based on these statements, Appellant argues that the trial court did not consider the full
range of punishment in assessing Appellant’s sentences. Specifically, Appellant contends that he
could not have received deferred adjudication from a jury. Therefore, he asserts that the trial


         2
          The statement at issue in Jaenicke is as follows: “I have heard many jurors reach verdicts on cases probably
not as bad as this where they assessed the maximum punishment. Therefore, I am forced to assess the maximum
punishment in this case.” Jaenicke v. State, 109 S.W. 3d 793, 795 (Tex. App.–Houston [1st Dist.] 2003, pet. ref’d).


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court’s reference to what a “Smith County jury would do” indicates the court did not consider this
option in sentencing Appellant. Appellant also directs our attention to the trial court’s statement
that an affirmative finding on “some type of substance treatment” was “about all the trial court gets
to do.”     He contends this shows the trial court “forgot” that deferred adjudication allows
treatment, outpatient or inpatient, or through the Substance Abuse Felony Facilities.
Analysis
          At the plea stage of the punishment hearing, the trial court informed Appellant that (1) “the
range of punishment for a second-degree felony is between 2 and 20 years in the penitentiary and
up to a $10,000 fine” and that (2) the court would “hear additional evidence and decide where in
that range of punishment your punishment should be.” Appellant confirmed that he understood
each statement. The court also stated that it “received that presentence report and had a chance to
review it.” Both Appellant and his mother testified regarding Appellant’s addiction to drugs and
alcohol. During Appellant’s testimony, the trial court heard about his extensive criminal history
spanning thirty years. The State showed that Appellant had eleven felony arrests resulting in
eleven different convictions, fourteen misdemeanor arrests resulting in nine different convictions,
and “numerous instances” where his probation was revoked. Also, Appellant’s attorney argued
that some of Appellant’s prior offenses were the result of substance abuse issues and that “almost
half of his arrests were for driving while intoxicated or some kind of drug or alcohol connection.”
His attorney also argued that “whatever he gets in TDC he’s probably going to serve probably well
over a quarter, if not half of. And, Judge, we think a 10-year sentence would give him 2 to 3 to 4
years down there. And, hopefully, he will come out and he will be able to control himself and he
won’t be back in the system.”
          The trial court also acknowledged that it had read the letters from Appellant’s mother,
brother, daughter, and one other individual. The trial court made the complained of statements
after hearing the evidence and arguments of counsel. At that point, the court was already aware
that Appellant’s sentences for the four convictions at issue would run concurrently, that Appellant
had a criminal history that spanned thirty years, a history of drug use, and several failed
probations. It was not until after the statement at issue that the court sentenced Appellant.
          To prevail on his first and second issues, Appellant must show clear bias to rebut the
presumption that the trial court’s actions were correct. See Brumit, 206 S.W.3d at 645 (holding
judge’s comments that earlier case made him think anybody who ever harmed a child should be



                                                   4
put to death did not reflect bias, partiality, or failure to consider full range of punishment). In the
instant case, the trial court’s statement is insufficient to rebut the presumption of a neutral and
detached trial court. See Jaenicke, 109 S.W.3d at 797. Prior to assessing punishment, the trial
court explicitly informed Appellant that his sentence would be within the range of punishment for
his offense, and then heard two witnesses, read four letters, and considered the evidence. The
statements at issue, although superfluous, show the trial court (1) considered the evidence, (2)
attempted to assess a sentence proportionate to the seriousness of Appellant’s crime, and (3) by
referring to what a jury would do, merely explained why the maximum punishment was
appropriate in this case. See id.
         The trial court made no statements that indicated bias or that showed the trial court failed to
consider the full range of punishment or imposed a predetermined punishment. See id. In
referring to what a “Smith County jury would do,” the court did not address whether a jury could
assess deferred adjudication. After considering the entire record, we decline to hold that this
statement supports as inference that the trial court considered only imprisonment as punishment
for Appellant. Therefore, we conclude Appellant was not denied due process and due course of
law. Accordingly, we overrule Appellant’s first and second issues.3


                                                     DISPOSITION
         Having overruled Appellant’s two issues, the judgment of the trial court is affirmed.


                                                                            JAMES T. WORTHEN
                                                                                     Chief Justice


Opinion delivered July 29, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)
         3
           The State contends that Appellant failed to properly preserve error by making a timely objection to the trial
court. Appellant argues that failure to consider the entire range of punishment is structural error and therefore no
contemporaneous objection was necessary. We need not decide whether an objection in the trial court was required
to preserve this type of error on appeal because the record in this case does not reflect bias, partiality, or that the trial
judge did not consider the full range of punishment. See Brumit, 206 S.W. 3d at 644-45 (declining to reach the
preservation issue because, in addressing the merits, the court held that record did not reflect partiality of trial court).




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