                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-16-00320-CR


EDWARD BANISTER                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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       FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY
                  TRIAL COURT NO. F15-1860-367

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                                   OPINION

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      Appellant Edward Banister stipulated to two prior convictions for driving

while intoxicated (DWI)1 and entered an open plea of guilt to the felony offense of

DWI—third. See Tex. Penal Code Ann. § 49.09(b) (West Supp. 2016). The trial

court accepted Banister’s plea and ordered the preparation of a presentence

investigation report (PSI). After reviewing the PSI and hearing evidence during

      1
       The two prior DWI convictions were from 1986 and 1987.
the sentencing hearing, the trial court found Banister guilty of driving while

intoxicated and sentenced him to five years’ imprisonment. In a single point,

Banister argues that the punishment imposed by the trial court constitutes an

abuse of discretion because it is excessive and disproportionate to the offense in

violation of the Eighth and Fourteenth Amendments to the United States

Constitution. For the reasons set forth below, we will affirm.

      Banister concedes that he did not object on Eighth Amendment grounds to

his punishment when it was imposed, nor did he raise Eighth Amendment

grounds in a motion for new trial. We have held on numerous occasions that

disproportionate-sentence claims must be preserved at the trial court level. See

Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d)

(holding that disproportionate-sentence claim was forfeited); Acosta v. State, 160

S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no pet.) (same); see also

Cisneros v. State, No. 02-06-00103-CR, 2007 WL 80002, at *1 (Tex. App.—Fort

Worth May 23, 2007, pet. ref’d) (mem. op., not designated for publication)

(collecting cases); cf. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013)

(“A sentencing issue may be preserved by objecting at the punishment hearing,

or when the sentence is pronounced.”).        We decline Banister’s invitation to

overrule precedent.     Because Banister did not raise his disproportionate-




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sentence claim in the trial court, it is forfeited.2   We overrule the portion of

Banister’s first point challenging his sentence under the Eighth Amendment.

      Banister also did not object at trial or argue in a motion for new trial that

the trial court violated his right to due process by failing to consider the entire

range of punishment. However, the right to be punished after consideration of

the full range of punishment “is a substantive right necessary to effectuate the

proper functioning of our criminal justice system” and is classified as a waivable-

only right. Grado v. State, 445 S.W.3d 736, 741–43 (Tex. Crim. App. 2014). As

a result, a complaint that the trial court failed to consider the full range of

punishment may be raised for the first time on appeal. Id. at 743.

      A trial court’s arbitrary refusal to consider the entire range of punishment

constitutes a denial of due process. Id. at 739. Due process at a sentencing

hearing requires a neutral and detached hearing body or officer who does not

arbitrarily refuse to consider the entire range of punishment or willfully impose a

predetermined sentence. See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct.

      2
        Even if we were to reach the merits of Banister’s disproportionate-
sentence complaint, his punishment is within the statutory limits for the offense.
See Tex. Penal Code Ann. § 12.34 (West 2011) (providing that a third-degree
felony is punishable by two to ten years in prison and by a fine of up to $10,000),
§ 49.09(b) (providing that DWI is a third-degree felony if the person has
previously been convicted two times of any other offense relating to the operation
of a motor vehicle while intoxicated). Punishment that is imposed within the
statutory limits and that is based upon the sentencer’s informed normative
judgment is generally not subject to challenge for excessiveness except in
“exceedingly rare” situations. Kim, 283 S.W.3d at 475–76 (quoting Ex parte
Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006)). Banister’s case does
not present an “exceedingly rare” situation.


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1756, 1762 (1973); Grado, 445 S.W.3d at 739–40; Brumit v. State, 206 S.W.3d

639, 645 (Tex. Crim. App. 2006). Concerning the due-process requirement that

a trial court imposing sentence must be neutral, absent a clear showing of bias,

we must presume the trial court’s actions were correct. Brumit, 206 S.W.3d at

645.

       Here, in support of his contention that he was deprived of due process at

the sentencing hearing, Banister points out that his offense was enhanced by

prior offenses that were almost twenty years old and that he was in a “fragile

medical condition” due to having pancreatitis and insulin-dependent diabetes.

He articulates no explanation, however, for how these facts resulted in a due-

process violation to him, nor does he point to any place in the record where any

purported due-process violation occurred. Instead, Banister seems to argue that

the trial court failed to consider his medical conditions and the remoteness of his

prior DWI convictions when it assessed Banister’s sentence at five years’

confinement. The record before us does not establish that the trial court either

arbitrarily failed to consider the entire range of punishment or willfully imposed a

predetermined sentence. To the contrary, the record reflects that the trial court

ordered a PSI, heard testimony from witnesses, and considered argument of

counsel prior to sentencing Banister.        Additionally, the statute that allows

enhancement of a DWI conviction to a third-degree felony if there are two prior

DWI convictions places no limit on the remoteness of the prior convictions. See

Tex. Penal Code Ann. § 49.09(b) (providing that DWI is a third-degree felony if


                                         4
the person has previously been convicted two times of any other offense relating

to the operation of a motor vehicle while intoxicated); Tietz v. State, 256 S.W.3d

377, 378–80 (Tex. App—San Antonio 2008, pet. ref’d) (providing that because

offense occurred after September 2005—the effective date of the revised version

of section 49.09 that removed ten-year rule on prior convictions used for

enhancement—prior convictions from 1989 and 1994 were available to enhance

July 2006 DWI).

      The record here indicates that the trial court did consider the full range of

punishment because it imposed a five-year sentence, which is less than the ten-

year maximum punishment allowed for a DWI conviction with two prior DWI

convictions; did not willfully impose a predetermined sentence; and did not

demonstrate bias. See Grados, 445 S.W.3d at 739–40; Brumit, 206 S.W.3d at

645; see also Meighen v. State, No. 11-11-00259-CR, 2012 WL 3799664, at *1,

*4 (Tex. App.—Eastland Aug. 31, 2012, pet. ref’d) (mem. op., not designated for

publication) (holding that record indicated that trial court did consider full range of

punishment because it imposed five years’ confinement, which was in the middle

of the punishment range for a third-degree felony). Because the record does not

clearly indicate a denial of Banister’s due-process rights, we overrule the

remainder of Banister’s sole point.




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     Having overruled Banister’s sole point, we affirm the trial court’s judgment.



                                                  SUE WALKER
                                                  JUSTICE


PANEL: LIVINGSTON, C.J.; WALKER and PITTMAN, JJ.

PUBLISH

DELIVERED: April 27, 2017




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