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

         ______________________________

               No. 06-08-00178-CR
         ______________________________


          SHAUNA L. CASTILLO, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 124th Judicial District Court
                 Gregg County, Texas
               Trial Court No. 36603-B




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

       Shauna L. Castillo appeals her conviction on her open plea of guilty to the state jail felony

offense of possession of a controlled substance. The trial court sentenced her to two years'

confinement, but suspended imposition of sentence and placed Castillo on community supervision.

       Castillo contends that she was denied due process because the trial court abused its discretion

by refusing to consider the full range of punishment, including deferred adjudication of guilt.

       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). In

the absence of a clear showing to the 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)).

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

punishment and thus violated her due process rights because the trial court's comments reveal a bias

against the full range of punishment which prevented the court from weighing the punishment

evidence and assessing sentence in an objective way.




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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). However, 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 not preserved.

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

not consider the entire range of punishment. What the record does show is that the court did not find

deferred adjudication appropriate for this defendant. The record shows the following colloquy

during the punishment phase of the trial:

               [State]:         Judge, you know this is an automatic probation case.
       However, the State does have concerns because we're dealing with drugs. Looking
       at the p.s.i., on Page 4 and on Page 7, and apparently it says her last reported use of
       methamphetamine was December 31st, 2007. This arrest date was January 22nd,
       2007, so that means she must have been using drugs while she was out on bond.
       Obviously, the State is concerned about that. And the State would ask for a longer
       period of probation.

               THE COURT:              Okay.

                [Defense Counsel]: Judge, I apologize. I didn't realize the date on there. My
       client has never had any criminal history at all. She was very open and honest with
       the Court in her p.s.i. And she has asked me to ask the Court to consider deferred.
       I've told her that I thought that would never happen in a million years, that this Court


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       -- I've had it happen once in my entire life in this county, and so I suspect it wouldn't
       happen. But I told her I would ask.

               THE COURT: Well, it is a rarity and -- .

              [Defense Counsel]: And I told her that. But I told her I would ask, Your
       Honor, and I'm asking on her behalf, but I told her I didn't think that would happen.

               THE COURT:              Well, it's a part of the law, and I will consider every
       part of the law.

               [Defense Counsel]:      I explained that to her, Judge.

               THE COURT:              But I use deferred sparingly.

               [Defense Counsel]:      I understand.

               THE COURT:             And I'm not going to do it in this case for the simple
       reason that she's continued to use drugs while out on bond.

       We conclude the record does not show that the trial court failed to consider the entire range

of punishment, nor does it show that the court had a bias against deferred adjudication—it does show

that the court believed deferred adjudication was not appropriate for this particular defendant's

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

       The contention of error is overruled.




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      We affirm the trial court's judgment.




                                              Jack Carter
                                              Justice

Date Submitted:      January 2, 2009
Date Decided:        January 6, 2009

Do Not Publish




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