












 
 
 
 
 
 
 
 
 
                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-10-00140-CR
                                                ______________________________
 
 
                         ANTHONY LARRY GUILBEAU, JR.,
Appellant
 
                                                                V.
 
                                     THE STATE OF TEXAS, Appellee
 
 
                                                                                                  

 
 
                                       On Appeal from the 188th
Judicial District Court
                                                             Gregg County, Texas
                                                          Trial Court
No. 38260-A
 
                                                        
                                          
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                        Memorandum Opinion by Chief Justice Morriss




                                                      MEMORANDUM OPINION
 
            After entry
of an open plea of guilty, Anthony Larry Guilbeau, Jr., was convicted of
possession of cocaine, in an amount of 200 grams or more but less than 400
grams, with intent to deliver, and was sentenced to thirty years’
imprisonment.  Guilbeau argues that the
trial court failed to consider the entire range of punishment and that his
sentence is disproportionate to the offense. 
Because Guilbeau has failed to preserve error on either claim, we affirm
the trial court’s judgment. 
(1)        Complaint Regarding Consideration of
Full Range of Punishment Was Not Preserved
 
            Guilbeau
argues that the trial court “did not consider the full range of punishment,
denying Appellant due process and due course of law.” 
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.  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) (citations omitted); see Washington v. State, 71 S.W.3d 498,
499 (Tex. App.—Tyler 2002, no pet.).  The
record demonstrates that Guilbeau failed to raise this issue with the trial
court.[1]  Because this point of error was not
preserved, it is overruled.  See Tex. R. App. P. 33.1.
            Even if Guilbeau
had preserved error, this complaint is without merit.  Due process requires the trial court conduct
itself in a neutral and detached manner.  Gagnon
v. Scarpelli, 411 U.S. 778, 786 (1973); Brumit
v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).  “[A] trial court’s arbitrary refusal to
consider the entire range of punishment in a particular case violates due
process.”  Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005) (per
curiam); see also Brumit, 206 S.W.3d
at 645.  Without a clear showing of bias,
however, we presume the trial court’s actions were correct.  Brumit,
206 S.W.3d at 645.  Guilbeau’s brief
fails to demonstrate any bias or merit to the claim that the trial court
arbitrarily refused to consider the entire range of punishment.  Guilbeau’s briefing states that the record
does not indicate whether the trial court considered community supervision and
does not reveal “what evidence, circumstances[,] or options were considered and
relied on by the Court.”[2]  The brief does not discuss any action or
inaction by the trial court demonstrating bias, but rather, merely speculates
that the trial court failed to consider the entire range of punishment.
            This issue
is overruled.
 
(2)        Complaint that Sentence
Is Disproportionate Was Not
Preserved
 
            Guilbeau’s
motion for new trial argued that his thirty-year sentence was disproportionate
to the offense.  On appeal, he simply
states that the sentence was excessive, although within the legal range of
punishment, because:
The Appellant did not have an extensive criminal
history in this case.  He only had two
previous convictions, one misdemeanor and one felony.  Appellant expressed remorse and shame for
committing the offense and is capable of obtaining gainful employment.  The Appellant further testified that he is
the father of thirteen year old a child [sic] and was active in raising and
supporting his son.
 
            To preserve
error for appellate review, a defendant must make a timely, specific objection
and obtain a ruling from the trial court.  Tex. R.
App. P. 33.1.  This requirement
applies even to assertions that a sentence is cruel and unusual.  Richardson
v. State, 328 S.W.3d 61, 72 (Tex. App.—Fort Worth 2010, pet. ref’d) (citing
Solis v. State, 945 S.W.2d 300, 301 (Tex.
App.—Houston [1st Dist.] 1997, pet. ref’d) (cited by Jackson v. State, 989 S.W.2d 842, 844 n.3 (Tex. App.—Texarkana 1999,
no pet.)); see also Henderson v. State,
962 S.W.2d 544, 558 (Tex. Crim. App. 1997)).  While Guilbeau did not object to the sentence
during the punishment hearing, he did timely file a motion for new trial,
complaining that his “sentence was disproportionate to the offense.”  The problem here is that nothing suggests
Guilbeau actually presented his claim to the trial court.
            To preserve the
issue of disproportionate sentencing by motion for new trial, a defendant must
present the motion to the trial court.  Richardson, 328 S.W.3d at 72; see Tex.
R. App. P. 21.6.  “The defendant
cannot merely file the motion for new trial, but must ensure that the trial
court has actual notice of the motion.”  Richardson, 328 S.W.3d at 72 (citing Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998)).  “Actual notice may be shown by such things as
the judge’s signature or notation on a proposed order or by a hearing date set
on the docket.”  Id.
            In Richardson, the court noted:
 
There
is no presentment of the motion shown in this record.  There is no entry on the trial court’s docket
sheet regarding the motion for new trial, no hearing was set or held, there is
no signature by the judge on the motion, and there is no indication in the
record that the trial court had actual knowledge that the motion for new trial
was filed.  Thus, Richardson has failed
to preserve his claim regarding the alleged disproportionate sentencing for our
review.
 
Id.
 
            Likewise,
this record does not suggest that Guilbeau presented the motion for new trial
to the trial court.  There is no entry on
the court’s docket sheet referencing the motion, no evidence of any hearing, no
signature by the judge on the motion, and no indication that the trial court
otherwise had actual knowledge of the motion for new trial.  Therefore, we conclude Guilbeau has failed to
preserve[3]
this point of error for our review.  It
is overruled. 
            We affirm
the trial court’s judgment.
 
 
                        
                                                                                                Josh
R. Morriss, III
                                                                                                Chief
Justice
 
Date Submitted:          April
15, 2011
Date Decided:             April
18, 2011
 
Do Not Publish
 
 
 




[1]Although
Guilbeau filed a motion for new trial, his point of error was not contained
within that motion. 


[2]The
record demonstrates that Guilbeau had previously committed the crime of “second
degree possession of a controlled substance where he was placed on probation
for ten years and at some point was revoked and he was given eight years TDC.”  In a prior “possession of marijuana
misdemeanor case,” “[h]e was placed on probation.  A motion to revoke was filed on that.”  The trial court also heard from Guilbeau that
he had once run to Alabama when he became aware that officers had a warrant for
his arrest.  


[3]Even
if the contention had been preserved for review, the contention fails.  Since the sentence is within the statutory
range, there is no indication that the severity of the sentence is grossly
disproportionate to the gravity of the offense, and no evidence establishes the
sentence’s disproportionality as compared with other sentences in this or other
jurisdictions.  See Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.—Texarkana
2006, no pet.).


