                             NO. 12-08-00398-CR

                        IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                 TYLER, TEXAS


JAMMY D. COOPER,                              '   APPEAL FROM THE 124TH
APPELLANT

V.                                            '   JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                      '   GREGG COUNTY, TEXAS

                                MEMORANDUM OPINION

       Jammy D. Cooper appeals his conviction for possession of methamphetamine. In
one issue, Appellant contends the trial court did not consider the entire range of
punishment before assessing his sentence. We affirm.


                                    BACKGROUND
       A Gregg County grand jury indicted Appellant for the felony offenses of
possession with intent to deliver methamphetamine and simple possession of
methamphetamine. The grand jury alleged that the quantity possessed was more than one
gram but less than four grams, making the offenses second and third degree felonies,
respectively.    See TEX . HEALTH & SAFETY CODE ANN . §§ 481.112(c), 481.115(c)
(Vernon 2003).
       Appellant pleaded guilty, without a plea agreement, to the offense of possession
of methamphetamine, a third degree felony. The State did not proceed on the second
degree felony charge. Appellant asked the trial court to suspend his sentence and place
him on community supervision. The State also recommended a suspended sentence.
Appellant admitted during the sentencing hearing that he had used methamphetamine on
one occasion while on pretrial release and that he had been arrested for possession of
methamphetamine on another occasion, also while on pretrial release. The trial court
assessed punishment at imprisonment for six years. This appeal followed.


                CONSIDERATION OF THE FULL RANGE OF PUNISHMENT


       In his sole issue, Appellant argues that the trial court did not consider the entire
range of punishment before assessing his sentence. Specifically, he argues that the trial
court did not consider probating his sentence and placing him on community supervision.
Applicable Law
       A trial court denies a defendant due process when it arbitrarily refuses to consider
the entire range of punishment for an offense. See McClenan v. State, 661 S.W.2d 108,
110 (Tex. Crim. App. 1983). Likewise, the due course of law provision of the Texas
Constitution requires that a trial court consider the entire range of punishment. See
Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App.–Texarkana 2002, pet. ref’d).
       The range of punishment for a third degree felony is between two and ten years of
imprisonment prison. See TEX . PENAL CODE ANN . § 12.33 (Vernon 2003).            In certain
circumstances, a trial court may suspend a prison sentence and place the convicted
person on community supervision. See TEX . CODE CRIM . PROC . ANN . ART . 42.12, §§ 3,
3g (Vernon Supp. 2008) (judge–ordered community supervision not available to those
sentenced to imprisonment for more than ten years or who were adjudicated guilty of
certain enumerated offenses).
Analysis
       A trial court must consider the entire range of punishment. But what this means
is that a trial court must be able to accept that the minimum legal punishment will be
appropriate in some circumstances and the maximum legal punishment will be
appropriate in some circumstances for a given level of criminal offense. Cf. Johnson v.
State, 982 S.W.2d 403, 405–06 (Tex. Crim. App. 1998) (stating same regarding
prospective jurors); McClenan, 661 S.W.2d at 110 (“These statements are analogous to
those of a juror who states that he could consider the minimum punishment in a proper
case, not any particular case. Such a juror is not subject to challenge for cause for bias
against the range of punishment and neither is a trial judge subject to recusal for the same
statement.”). Once the facts necessary to assess punishment are before it, the trial court


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is not only free to determine what punishment should be imposed, but it is required to
tailor a punishment to the offense committed and the offender who committed it. Cf.
Johnson, 982 S.W.2d at 405–06. That very process of deciding on the appropriate
sentence involves considering and then rejecting certain possibilities.                    This decision
making process is only problematic if the decision is made without consideration of the
evidence or without consideration of the full range of available punishment. See Brumit
v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).
         In this case, Appellant was eligible for a suspended sentence, and the trial court
judge repeatedly stated that he would consider suspending sentence. However, after
hearing the facts, the trial court declined to probate the sentence and stated that “[t]he day
is not going to come when I sit on the bench and hear this type of set of facts [sic] [and
conclude that] probation is an appropriate remedy.                   Not going to happen with this
Judge.”1
         We do not agree with Appellant that this shows the trial court did not consider the
entire range of punishment. By way of a contrasting example, it is reversible error for a
court to state that a specific sentence will be assessed if a probationer violates the
conditions of his community supervision and then to assess that sentence reflexively
upon a violation. See Ex parte Brown, 158 S.W.3d 449, 456–57 (Tex. Crim. App. 2005).
A blanket decision that an individual who violates the conditions of his pretrial release
cannot be placed on community supervision would appear to be a similar kind of
prejudgment.
         The trial court judge in this case did not state that he would not consider
community supervision because Appellant had violated the law while on pretrial release.
He did state that he would not suspend the sentence in this case, but the statement is
nothing more than a tautology: the judge stated that he would not probate a sentence
when it was not appropriate to probate the sentence. Appellant essentially conceded that
he was not a good candidate for community supervision at the sentencing hearing when
1

          The State argues that Appellant has not preserved this complaint because he did not object at the
time the sentence was imposed. Indeed, though the State did not cite it, this court has held that such a
complaint must be preserved by contemporaneous objection. See Washington v. State, 71 S.W .3d 498, 499
(Tex. App.–Tyler 2002, no pet.). However, Appellant argues that failure to consider the entire range of
punishment is a structural error and need not be preserved by contemporaneous objection. This argument
has been made before the court of criminal appeals in the recent past. See Brum it v. State, 206 S.W .3d 639,
645 (Tex. Crim. App. 2006). The court declined to decide whether such a complaint must be preserved by
a contemporaneous objection, instead holding that the trial court in that case considered the entire range of
punishment.

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he responded in the negative to his counsel’s question as to whether he “deserve[d]
probation.”
         In the absence of a contrary showing, we presume the trial court acted as a neutral
and detached officer. See Brumit, 206 S.W.3d at 645. The record in this case does not
show that this presumption is overcome or that the trial court failed to consider the entire
range of punishment. We overrule Appellant’s sole issue.


                                               DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the judgment of the trial
court.


                                                                  JAMES T. WORTHEN
                                                                        Chief Justice




Opinion delivered September 30, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                          (DO NOT PUBLISH)



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