                                       NO. 12-19-00261-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

 DOUGLAS MACK PETERS,                                    §       APPEAL FROM THE 7TH
 APPELLANT

 V.                                                      §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                                §       SMITH COUNTY, TEXAS

                                       MEMORANDUM OPINION
       Douglas Mack Peters appeals his conviction for aggravated assault on a family member,
with a deadly weapon. In one issue, Appellant argues that the trial court erred by not considering
the full range of punishment. We affirm.


                                               BACKGROUND
       Appellant was charged by indictment with the offense of aggravated assault by
intentionally, knowingly, and recklessly causing serious bodily harm to the victim by shooting him
with a firearm and the victim was a member of the Appellant’s family. The indictment also stated
that Appellant used or exhibited a deadly weapon, namely a firearm, during the commission of or
immediate flight from the offense, a first degree felony. 1 Appellant made an open plea of “guilty”
to the charged offense, and pleaded “true” to the deadly weapon allegation. Appellant and his
counsel signed various documents in connection with his guilty plea, including an agreed
punishment recommendation and a stipulation of evidence in which he stipulated that the facts in
the indictment were true and correct and constituted the evidence in the case. The trial court
accepted Appellant’s plea, found the evidence sufficient to substantiate Appellant’s guilty plea,


       1
           See TEX. PENAL CODE ANN. § 22.02 (a)(1), (b)(1) (West 2019).
found Appellant guilty of the offense charged in the indictment, and found that Appellant used a
deadly weapon.
         After the punishment hearing approximately two months later, the trial court adjudged
Appellant guilty of the offense charged in the indictment, made an affirmative deadly weapon
finding, and assessed Appellant’s punishment at fifty years of imprisonment. 2 This appeal
followed.


                             FAILURE TO CONSIDER FULL RANGE OF PUNISHMENT
         In Appellant’s sole issue, he contends that he was denied due process and due course of
law by the trial court’s failure to consider the full range of punishment when assessing his sentence.
Standard of Review and Applicable Law
         Due process requires a neutral and detached hearing body or officer. Gagnon v. Scarpelli,
411 U.S. 778, 786, 93 S. Ct. 1756, 1761-62, 36 L. Ed. 2d 656 (1973). It is a denial of due process
for a trial court to arbitrarily refuse to consider the entire range of punishment for an offense or to
refuse to consider the evidence and impose a predetermined punishment. McClenan v. State, 661
S.W.2d 108, 110 (Tex. Crim. App. 1983). In the absence of a clear showing of bias, we will
presume the trial judge was a neutral and detached officer. Earley v. State, 855 S.W.2d 260, 262
(Tex. App.–Corpus Christi 1993, pet. dism’d). Bias is not shown when (1) the trial court hears
extensive evidence before assessing punishment, (2) the record contains explicit evidence that the
trial court considered the full range of punishment, and (3) the trial court made no comments
indicating consideration of less than the full range of punishment. Brumit v. State, 206 S.W.3d
639, 645 (Tex. Crim. App. 2006). In applying our state constitutional guarantee of due course of
law, we follow contemporary federal due process interpretations. U.S. Gov’t v. Marks, 949
S.W.2d 320, 326 (Tex. 1997); Fleming v. State, 376 S.W.3d 854, 856 (Tex. App.–Fort Worth
2012), aff’d, 455 S.W.3d 577 (Tex. Crim. App. 2014), cert. denied, 135 S. Ct. 1159, 190 L. Ed. 2d
913 (2015).




         2
          An individual adjudged guilty of a first degree felony shall be punished by imprisonment for life or for any
term of not more than ninety-nine years or less than five years, and a fine not to exceed $10,000.00. TEX. PENAL
CODE ANN. § 12.32 (West 2019).




                                                          2
Analysis
        Appellant argues that the trial court foreclosed the possibility of granting deferred
adjudication by finding him guilty and finding that a deadly weapon was used, immediately after
he pleaded guilty. Appellant contends that this amounts to a failure to consider the full range of
punishment, and resulted in a denial of his due process right to a detached and neutral magistrate. 3
        Contrary to Appellant’s assertion, the trial court did not foreclose the possibility of granting
deferred adjudication when it orally found him guilty before hearing the evidence on punishment.
On April 23, 2019, Appellant made an “open plea” of guilty. The trial court entered and accepted
the plea, found him guilty based on the plea and the evidence presented, and made an affirmative
deadly weapon finding. The trial court then postponed sentencing until a presentence investigation
could be conducted. Appellant’s counsel expressed an intent to ask the trial court to consider
deferred adjudication. The trial court stated that counsel may make such a request, but noted that
it already made the finding, apparently referring to the deadly weapon finding. However, the trial
court stated that it may change its mind based on the evidence at the punishment hearing.
        On June 28, 2019, the trial court heard punishment evidence and closing arguments. It
assessed Appellant’s punishment at imprisonment for fifty years. The written judgment was
entered on July 8, 2019. Although the court made an oral finding of guilt on April 23, it did not
enter the finding of guilt until signing the judgment on July 8, after hearing punishment evidence.
An oral finding of guilt does not divest a trial court of the power to grant deferred adjudication.
West v. State, 702 S.W.2d 629, 635 (Tex. Crim. App. 1986). Thus, the record does not support
Appellant’s argument that the trial court foreclosed the possibility of granting deferred
adjudication prior to hearing evidence on punishment.
        Moreover, the record indicates that the trial court considered the full range of punishment,
including deferred adjudication. After hearing the punishment evidence and before announcing
punishment, the trial court stated that it “considered, really, the full range of punishment, from a
deferred [adjudication] to a life sentence the State [ ] asked for.” Further, the trial court stated that
it was “not prepared to grant a deferred [adjudication] in this case” because it did not “find that to



        3
           The right to be sentenced by a judge who considers the full range of punishment is a Marin category-two
right and may be lost only by an express waiver. See Grado v. State, 445 S.W.3d 736, 743 (Tex. Crim. App. 2014).
The State concedes that Appellant did not expressly waive this right and that his appeal must be determined on its
merits.


                                                        3
be appropriate [ ] when [Appellant] shot two other people, particularly, family members.” See
Brumit, 206 S.W.3d at 645.
         Accordingly, based on the record before us, we conclude that the trial court did consider
the full range of punishment, including deferred adjudication, when assessing Appellant’s
sentence. Consequently, Appellant was not denied his due process right to a detached and neutral
magistrate. We overrule Appellant’s sole issue.


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

                                                                GREG NEELEY
                                                                   Justice



Opinion delivered March 31, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 31, 2020


                                         NO. 12-19-00261-CR


                                    DOUGLAS MACK PETERS,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-1572-18)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
