                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-17-00392-CR

JOSEPH VERLYN GUTHRIE,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                         From the 413th District Court
                            Johnson County, Texas
                            Trial Court No. F50778


                         MEMORANDUM OPINION


       In two issues, appellant, Joseph Verlyn Guthrie, challenges the fifteen-year

sentence he received for committing the offense of aggravated assault with a deadly

weapon. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). Because we conclude that

Guthrie did not preserve either of his complaints on appeal, we affirm the judgment of

the trial court.

                                      I.    ANALYSIS
        In his first issue, Guthrie contends that the trial court violated his due-process

rights by refusing to consider the entire range of punishment and mitigating evidence

when assessing 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, 93 S. Ct. 1756, 1762, 36

L. Ed. 2d 656 (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 the evidence

and imposes a predetermined sentence. Ex parte Brown, 158 S.W.3d 446, 454 (Tex. Crim.

App. 2005); see Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref’d).

However, such a complaint is not preserved for appellate review unless a timely objection

is raised. See TEX. R. APP. P. 33.1(a)(1); see also Teixeira, 89 S.W.3d at 192.

        Here, the record does not demonstrate that Guthrie objected to the imposed

sentence on due-process grounds either when the sentence was pronounced or in his

motion for new trial. Accordingly, we conclude that this complaint was waived. See TEX.

R. APP. P. 33.1(a)(1); see also Teixeira, 89 S.W.3d at 192. We overrule Guthrie’s first issue.

        In his second issue, Guthrie argues that his fifteen-year sentence is excessive and

disproportionate and amounts to cruel and unusual punishment in violation of the

United States and Texas Constitutions. See U.S. CONST. amend. VIII; see also TEX. CONST.

art. I, § 13. A disproportionate-sentence claim must be preserved for appellate review

either by objecting when the sentence is imposed or raising the claim in a timely-filed


Guthrie v. State                                                                         Page 2
motion for new trial. See TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120

(Tex. Crim. App. 1996) (noting that constitutional rights, including the right to be free

from cruel and unusual punishment, may be waived); Mercado v. State, 718 S.W.2d 291,

296 (Tex. Crim. App. 1986) (en banc); see also Means v. State, 347 S.W.3d 873, 874 (Tex.

App.—Fort Worth 2011, no pet.); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d) (“[I]n order to preserve for appellate review a

complaint that a sentence is grossly disproportionate, constituting cruel and unusual

punishment, a defendant must present to the trial court a timely request, objection, or

motion stating the specific grounds for the ruling desired.”).

        However, if such a claim is raised in a motion for new trial, the defendant must

also present the motion for new trial to preserve the issue for appellate review. See

Bearnth v. State, 361 S.W.3d 135, 145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); see

also Means, 347 S.W.3d at 874. “Presentment requires a defendant to do more than simply

file the motion for new trial with the trial court clerk. ‘The presentment must be directed

to the trial court or another authorized to act on behalf of the trial court.’” Bearnth, 361

S.W.3d at 145 (quoting Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998)). “This

requirement puts the trial court on actual notice that a defendant desires the trial court to

take some action on the motion for new trial such as a ruling or a hearing on it.” Id.

(internal citations & quotations omitted). Proof of presentment must be apparent from

the record and can be evidenced by the trial judge’s signature or notation on the proposed


Guthrie v. State                                                                       Page 3
order attached to the motion for new trial, an entry on the docket sheet indicating

presentment, or the setting of a hearing date. Id. at 146.

        A review of the record shows that Guthrie did not raise this complaint at the time

the sentence was imposed; instead, he raised this complaint in his timely-filed motion for

new trial. But there is no indication from this record that Guthrie presented his motion

for new trial to the trial court. See id. at 145-16; see also Means, 347 S.W.3d at 874. In fact,

the record does not contain a proposed order on Guthrie’s motion for new trial.

Furthermore, the docket sheet does not indicate presentment, and there is no evidence of

a hearing date on Guthrie’s motion for new trial. Consequently, we conclude that Guthrie

has waived this complaint; therefore, we overrule his second issue. See TEX. R. APP. P.

33.1(a)(1); see also Rhoades, 934 S.W.2d 113; Bearnth, 361 S.W.3d at 145-46; Means, 347

S.W.3d at 874.

                                        II.     CONCLUSION

        Having overruled both of Guthrie’s issues on appeal, we affirm the judgment of

the trial court.




                                                   TOM GRAY
                                                   Chief Justice



Before Chief Justice Gray,
       Justice Davis, and


Guthrie v. State                                                                         Page 4
      Senior Justice Scoggins1
Affirmed
Opinion delivered and filed February 13, 2019
Do not publish
[CR25]




        1
         The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment
of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003 (West
2013).

Guthrie v. State                                                                                  Page 5
