in the Interest of M. A., a Juvenile

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00136-CV

______________________________

IN THE INTEREST OF M.A., A JUVENILE

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

On Appeal from the County Court at Law

Harrison County, Texas

Trial Court No. 3534

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

O P I N I O N

Â Â Â Â Â Â Â Â Â Â M.A., a twelve-year-old juvenile, appeals from the modification and disposition orders rendered by the County Court at Law of Harrison County. In its modification order, the trial court determined that M.A. violated the terms of his probation by engaging in delinquent conduct, to-wit, criminal mischief. Before the modification, M.A. had been adjudicated for three other misdemeanor offenses. The conduct forming the basis of the second adjudication occurred after the date of the first adjudication. In its disposition order, the trial court committed M.A. to the Texas Youth Commission (T.Y.C.) for an indeterminate period of time, not to exceed the time when M.A. will be twenty-one years of age. M.A.'s sole issue on appeal is that the trial court abused its discretion in committing him to T.Y.C.

Background

Â Â Â Â Â Â Â Â Â Â M.A.'s initial contact with Harrison County juvenile authorities occurred on or about MarchÂ 5, 2004. He was detained at that time for disrupting class by throwing chairs and threatening the responding officer. Before the adjudication hearing based on those incidents, M.A. was provided an opportunity to complete a boot camp program, which he did successfully. The trial court originally placed M.A. on six months deferred prosecution, which M.A. failed to successfully complete. Eventually, the trial court adjudicated M.A. of committing interruption of a public meeting, a misdemeanor, and placed M.A. on formal probation.

Â Â Â Â Â Â Â Â Â Â On or about April 26, 2005, M.A. was detained for violent disruption of class and resisting transport by the officer responding. The trial court adjudicated M.A. of committing delinquent conduct, to-wit, interruption of a public meeting and resisting arrest. M.A. was placed on probation with more stringent rules.

Â Â Â Â Â Â Â Â Â Â On or about August 24, 2005, M.A. again disrupted his class at school. After having attempted to defuse the situation by verbally admonishing M.A. and isolating him from the other students in his behavior modification class, Kevin Gray, M.A.'s teacher, sent M.A. to the assistant principal's office for failing to follow instructions. When M.A. did not cooperate with the assistant principal, the assistant principal informed M.A. she would be calling his juvenile probation officer. Although M.A. had not exhibited any physical violence up to this point, M.A. became extremely upset on learning his juvenile probation officer would be informed. M.A. became violent and "stormed out" of the office. On his way out of the school, M.A. slammed a wooden door with such violence that it cracked. After damaging the door, M.A. hit a glass display case with his hand causing a glass panel to break. The principal testified the combined cost of the repairs were estimated to be at least $675.00.

The Trial Court Did Not Abuse Its Discretion

Â Â Â Â Â Â Â Â Â Â M.A. contends the trial court abused its discretion because commitment to T.Y.C. should be limited to the most severe offenders. M.A. cites Justice Schneider's concurring opinion in In re J.P., for the proposition that T.Y.C. is the "most severe form of incarceration contemplated in the juvenile justice scheme" and "the Legislature has expressed its intent that the commitment be reserved for only serious juvenile offenders." In re J.P., 136 S.W.3d 629, 634 (Tex. 2004) (Schneider, J., concurring). M.A. also argues that a proper commitment to T.Y.C. generally occurs when the delinquent child involved has engaged in some type of violent activity, making such child potentially dangerous to the public, or where the child has been given a negative recommendation for probation. See In re L.G., 728 S.W.2d 939, 945 (Tex. App.âAustin 1987, writ. ref'd n.r.e.). In addition, M.A. contends the ruling was arbitrary and unreasonable because the trial court failed to exhaust local services designed to address the medical needs of M.A.

Â Â Â Â Â Â Â Â Â Â Provided the requisite number of adjudications have occurred, the decision to modify a juvenile's probation, including the decision to commit the child to T.Y.C., is in the sound discretion of the trial court and can be reversed only on a finding that the trial court abused that discretion. J.P., 136 S.W.3d at 632â23; In re H.G., 993 S.W.2d 211, 213 (Tex. App.âSan Antonio 1999, no pet.). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to guiding rules or principles. In re C.J.H., 79 S.W.3d 698, 702 (Tex. App.âFort Worth 2002, no pet.).

Â Â Â Â Â Â Â Â Â Â According to M.A., the trial court abused its discretion because M.A. is not one of the most serious offenders and did not exhibit violence towards any other person. M.A. directs our attention to Gray's testimony that the original encounter was not of a physical nature, but was based on M.A.'s refusal to comply with several requests. After M.A. met with the assistant principal and was informed that his probation office would be called, M.A.'s demeanor changed, at which point he "stormed out" of the school causing damage to school property. At no point did M.A. attempt to cause harm to any individual. Gray also testified M.A. was "pretty laid back, pretty good guy most of the time."

Â Â Â Â Â Â Â Â Â Â The Texas Family Code permits a trial court to decline third and fourth chances to a juvenile who has abused a second chance. J.P., 136 S.W.3d at 633. Further, the State did introduce evidence of M.A. behaving in a violent manner toward others. M.A. had previously been adjudicated of resisting arrest. Although interruption of a public meeting is not necessarily violent in nature, M.A. was adjudicated of disrupting a meeting by throwing chairs and threatening the responding officer. In addition, M.A. had a history of violent and extremely disruptive behavior at the Willoughby Juvenile Center. The State introduced approximately eighteen incident reports, filed by detention employees while M.A. was in detention, detailing several acts of violence towards other residents and staff, as well as several violent threats. The trial court did not act arbitrarily or without reference to guiding principles.

Â Â Â Â Â Â Â Â Â Â According to M.A., the trial court also abused its discretion by failing to exhaust alternatives to T.Y.C. The trial court found "[t]here is nothing else we have available on a local basis that will help him." Darren Forehand, M.A.'s probation officer, testified Harrison County Juvenile Services had no further programs available to attempt the rehabilitation of M.A. M.A. introduced evidence during the hearing that he has been diagnosed with "ADHD." M.A.'s father and mother both testified that M.A.'s mother had recently changed employers, which had created problems obtaining M.A.'s medication. M.A. was not on his medication when he committed the criminal mischief. M.A.'s parents attributed M.A.'s most recent behavior to the lack of medication. In addition, Gray testified he assumed M.A. was not on his medication when he misbehaved. However, M.A.'s mother admitted M.A. was taking his medication when he committed the previously adjudicated misdemeanors. Forehand testified he did not believe M.A.'s behavior was any different when he was on his medication.

Â Â Â Â Â Â Â Â Â Â There was no evidence introduced at the hearing that Harrison County has alternative facilities which would meet M.A.'s needs. M.A. argues on appeal that the trial court should have attempted to see how M.A. would behave in the Harrison County Juvenile Services' Long Term Program. The record does not indicate what services are available in the Harrison County Long-Term Services' Program, but the record does indicate the trial court was aware of the program. According to Forehand, the rehabilitative and counseling services at T.Y.C. are considerably more extensive than those available at Willoughby Juvenile Center. Forehand testified M.A.'s behavior in detention indicates that placement of M.A. in the long-term program would be very disrupting to the other resident members of the long-term program. M.A. had already attended boot camp ("the STAR program") and had exhausted other services available locally. Forehand testified there were not any additional services available locally to attempt to rehabilitate M.A. We cannot say the trial court abused its discretion in determining Harrison County lacked the services M.A. needs.

Conclusion

Â Â Â Â Â Â Â Â Â Â We are unable to conclude the trial court acted arbitrarily or without reference to guiding principles. The trial court was presented with evidence that M.A. had previously been adjudicated of committing three misdemeanors, including resisting arrest; had exhibited acts of violence towards other residents at the detention center as well as the staff of the detention center; and had exhausted all services available locally. The trial court did not abuse its discretion in committing M.A. to T.Y.C.

Â Â Â Â Â Â Â Â Â Â Accordingly, we affirm the modification and disposition orders of the trial court.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Donald R. Ross

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Date Submitted:Â Â Â Â Â Â April 17, 2006

Date Decided:Â Â Â Â Â Â Â Â Â July 19, 2006

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In The

Court of Appeals

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Sixth Appellate District of Texas at Texarkana

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________________________

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â No. 06-10-00131-CR

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________________________

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ROYLAND EARL BLACK, Appellant

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â V.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â THE STATE OF TEXAS, Appellee

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â On Appeal from the 7th Judicial District Court

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Smith County, Texas

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Trial Court No. 007-1631-09

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Before Morriss, C.J., Carter and Moseley, JJ.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Memorandum Opinion by Chief Justice Morriss

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â MEMORANDUM OPINION

Â Â Â Â Â Â Â Â Â Â Â One could say that Royland Earl Black was essentially asleep at the wheel when Officer Letitia Powell encountered his driving in Smith County^{^[1]} in early 2009.Â In a trial to the court, Black was found guilty of driving while intoxicated (DWI), his sentence was enhanced to the equivalent of a third degree felony, and Black was sentenced to six yearsÂ confinement.Â We affirm the trial courtÂs judgment, because (1) Black has not demonstrated that his trial counsel was ineffective, and (2) Black cannot prevail on his claim that the trial court failed to consider the full range of punishment.

Â Â Â Â Â Â Â Â Â Â Â Powell was patrolling the streets on or about January 30, 2009, when a radio broadcast informed her of a possible intoxicated driver at a local intersection.Â Responding to the call, Powell spotted a white truck driven by Black Âfailing to maintain a single lane.ÂÂ She pulled up behind the truck at a red light and engaged her patrol car lights.Â Although the light had turned green, the truck remained stopped in the middle of the street.Â After Powell used her unitÂs loudspeaker to ask Black to Âpull off the main roadway,Â Black drove through the green light and continued to drive down the road without stopping.Â He led Powell on a two-mile low-speed chase even though the patrol carÂs Âtake-downs, which is a brighter white light,Â siren, and horn were used.Â Black finally pulled over into a ChurchÂs Chicken parking lot.Â

Â Â Â Â Â Â Â Â Â Â Â Upon initial contact, Black was, according to Powell, Âextremely slow to respondÂ to commands, was Âunsteady,Â Âswayed,Â and Âneeded assistanceÂ when exiting the vehicle.Â After Black exhibited difficulty in following instructions during administration of the horizontal gaze nystagmus (HGN)^{^[2]} test, failed to understand and maintain balance during the walk-and-turn test, and performed unsatisfactorily on the one-leg-stand test, Powell concluded that Black was intoxicated.Â Before the tests were administered, Black denied having any medical issues, but later informed Powell he had diabetes and a bad back, and admitted to ingesting Âa Vicodin.ÂÂ Assisting Powell, Officer Donald Shafer recovered five ÂSomaÂ prescription drug pills from a search of BlackÂs truck.^{^[3]}Â

Â Â Â Â Â Â Â Â Â Â Â Black was arrested and agreed to provide a blood sample to nurse Shirley Dudley.Â Eduardo Padilla of the Texas Department of Public Safety Crime Laboratory testified that the initial drug screen of BlackÂs blood sample revealed the presence of prescription drugs Hydrocodone, Meprobamate, and Carisoprodol (Soma).Â The drugs were legally prescribed to Black.Â

Â Â Â Â Â Â Â Â Â Â Â In a statement given after his arrest and during trial, Black said he had Âblacked outÂ while driving.Â BlackÂs brother, who was a passenger in the truck, told Shafer Âhe was scared; that [Black] wouldnÂt stop, and that he had to physically grab control of the steering wheel and make the vehicle turn into the . . . ChurchÂs Chicken parking lot.ÂÂ

Â Â Â Â Â Â Â Â Â Â Â Padilla testified that the two drugs found in BlackÂs system could cause Âdrowsiness, dizziness, slurred speech, blurred vision, [and] lack of motor skills.ÂÂ He also informed that the combination of the drugs could cause loss of the normal use of mental or physical faculties, and the amount of Hydrocodone in the blood sample was Âon the high side.ÂÂ Black took the stand and admitted during cross-examination that he had previously been convicted of DWI in 2007 for driving after ingesting his regular medication.

Â (1)Â Â Â Â Â Black Has Not Demonstrated that His Trial Counsel Was Ineffective

Â Â Â Â Â Â Â Â Â Â Â We begin our analysis with the rule that any allegation of ineffectiveness of counsel must be firmly founded in the record. Â Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Wallace v. State, 75 S.W.3d 576, 589 (Tex. App.ÂTexarkana 2002), affÂd, 106 S.W.3d 103 (Tex. Crim. App. 2003). Â From the record received by this Court, Black bears the burden of proving that counsel was ineffective by a preponderance of the evidence. Â Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984).

Â Â Â Â Â Â Â Â Â Â Â We apply the two-pronged Strickland test handed down by the United States Supreme Court to determine whether Black received ineffective assistance of counsel. Â Strickland v. Washington, 466 U.S. 668 (1984). Â Failure to satisfy either prong of the Strickland test is fatal. Â Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006). Â Thus, we need not examine both Strickland prongs if one cannot be met. Â Strickland, 466 U.S. at 697.

Â Â Â Â Â Â Â Â Â Â Â First, Black must show that counselÂs performance fell below an objective standard of reasonableness in light of prevailing professional norms. Â Id. at 687Â88. Â There is a strong presumption that counselÂs conduct fell within the wide range of reasonable professional assistance and that the challenged action could be considered sound trial strategy. Â Id. at 689; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Â Therefore, we will not second-guess the strategy of BlackÂs counsel at trial through hindsight. Â Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.ÂTexarkana 2005, pet. refÂd).

Â Â Â Â Â Â Â Â Â Â Â The second Strickland prong, prejudice, requires a showing that, but for counselÂs unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Â Strickland, 466 U.S. at 687Â88.

Â Â Â Â Â Â Â Â Â Â Â A. Â Â Â Â Â Â The Guilty Plea Before Receipt of the Toxicology Report

Â Â Â Â Â Â Â Â Â Â Â Black argues that counsel persuaded him to plead guilty before receiving the toxicology report.Â CounselÂs advice came after consultation with Black.Â It is possible statements or admissions may have been made to counsel during such consultation.Â BlackÂs counsel told the court he advised his client to plead guilty because Â[t]here were certain pressures to deal with, Your Honor, timewise and negotiation-wise.ÂÂ The record indicates counsel may have advised Black to enter a plea of guilty in an effort to resolve the case in a favorable manner.Â Often, defense counsel have various reasonable paths to take in defending their clients; choosing one is part of trial strategy and will not be held ineffective unless no reasonable attorney would choose that path.Â See Harrington v. Richter, No. 09-587, 2011 WL 148587, at *14Â16 (U.S. Jan. 19, 2011) (choice not to use particular expert for scientific analysis of blood).Â We decline to second-guess the strategy of BlackÂs counsel through hindsight.

Â Â Â Â Â Â Â Â Â Â Â Undermining the harm prong of the Strickland test, the guilty plea was withdrawn.Â Black argues Âthe damage was doneÂ because the court was Âleft with the indelible impression that Appellant was guilty before any evidence was presented at the bench trial.ÂÂ No authority or citation to the record is cited to support BlackÂs proposition, and the idea that the plea left the Âindelible impressionÂ of BlackÂs guilt, or that the court otherwise considered the withdrawn plea, is speculation.

Â Â Â Â Â Â Â Â Â Â Â In any event, the toxicology report indicated the presence of a high amount of Hydrocodone in addition to two other prescription drugs, facts that do not aid BlackÂs defense.Â Combined with the video supporting the finding of intoxication, we conclude Black fails to meet the second prong of Strickland requiring a showing that the result of the proceeding would have been different had he never entered a guilty plea.Â No ineffective assistance of counsel is shown relative to the guilty plea.

Â Â Â Â Â Â Â Â Â Â Â B. Â Â Â Â Â Â Counsel Attempts to Testify About His Own Experiences with Blackouts

Â Â Â Â Â Â Â Â Â Â Â BlackÂs counsel took the stand and began testifying about an experience he had with a blackout while in court.Â The StateÂs objection to the relevance of counselÂs testimony was sustained, and the testimony was struck.Â Yet, Black argues, without support in the form of caselaw or record citation, that his counselÂs testimony Âtainted AppellantÂs defense and doubtless caused the trial court to question counselÂs defense strategy.Â Â

Â Â Â Â Â Â Â Â Â Â Â We find that Black has failed to rebut the strong presumption that counselÂs conduct fell within the wide range of reasonable professional assistance and that the challenged action could be considered sound trial strategy. Â Black was intoxicated if he did Ânot have the normal use of mental or physical faculties by reason of the introduction of . . . a drug, . . . or any other substance into [his] body.ÂÂ Tex. Penal Code Ann. Â§ 49.01(2)(A) (Vernon 2003).Â If his blackout was caused by the ingestion of drugs, Black could be found guilty of DWI.Â CounselÂs trial strategy in testifying about his personal experience could have been to support the defense theory that a blackout could be caused by reasons other than ingestion of drugs.Â The first prong of Strickland has not been met.Â Additionally, BlackÂs contention that the stricken testimony tainted the defense is speculative and does not establish that the result of the proceeding would have been different.Â Thus, he cannot meet the second Strickland prong.Â No ineffective assistance of counsel is shown relative to counselÂs attempted testimony.

Â Â Â Â Â Â Â Â Â Â Â C.Â Â Â Â Â Â Â JudgeÂs Comments About Experience with a Driver Who Had Blacked Out

Â Â Â Â Â Â Â Â Â Â Â After both sides rested and the punishment phase was closed, the trial court stated:

I had a wreck years ago as a young person where a lady had a blackout and she ran a stop sign and hit us broadside, so I know it can happen.Â The evidence shows thatÂs just a made-up defense on your part, particularly, whenever you see what the presentence . . . contains about what your brother said.

Â Â Â Â Â Â Â Â Â Â Â Black argues that counsel should have objected to the statement and should have made an Âeffort to attempt to have the judge declare a mistrial and recuse himself.ÂÂ Due process requires a neutral and detached trial court. Â Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).Â ÂAbsent a clear showing of bias, a trial courtÂs actions will be presumed to have been correct.Â Â Brumit, 206 S.W.3d at 645 (citing Thompson v. State, 641 S.W.2d 920, 921 (Tex. Crim. App. 1982)). Â The comments of the trial court here do not reflect bias or partiality.Â Rather, they reflect an understanding by the trial court that blackouts can occur without intoxication.Â Because there was no clear showing of bias, there was no reason for BlackÂs counsel to object.Â Black cannot meet the first prong of Strickland.Â No ineffective assistance of counsel is shown relative to the trial courtÂs statements about experience with a driver who blacked out.

(2)Â Â Â Â Â Â Â Black Cannot Prevail on His Claim that the Trial Court Failed to Consider the Full Range of Punishment

Â Â Â Â Â Â Â Â Â Â Â Black cites to the following three statements made by the trial court during the punishment hearing to suggest that the trial court did not consider the full range of punishment:

I try to always assess cases when IÂm asked to do this type of sentencingÂor not sentencing, but trial of a defendant by way of a bench matter without a jury, to try to assess it how I think the jury would assess it in Smith County, Texas.Â Because I think a defendant shouldnÂt be handled any differently, whether itÂs a jury listening to the evidence and resolving the case.

. . . I always try to assess these based upon what I think a Smith County jury would do in the case in relation to the punishment of cases.Â I think they would have considered probation, too.Â I think they would have considered it extremely briefly.Â

. . . I donÂt think a jury would spend long thinking about that eligibility for probation whenever they have someone that they would have just convicted of a felony DWI, and that they are awareÂat that point, if they had been doing it, they would have been aware that you were at least charged with this second one.^{^[4]}

Â Â Â Â Â Â Â Â Â Â Â Black argues that these excerpts demonstrated that the court foreclosed the opportunity for community supervision of any kind.Â He complains the trial court erred in violating his rights to Âdue process and due course of law.Â

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.Â 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.ÂTexarkana 2002, pet. refÂd) (citations omitted); see Washington v. State, 71 S.W.3d 498, 499 (Tex. App.ÂTyler 2002, no pet.).^{^[5]}Â Black admits in his brief, and the record demonstrates, that he failed to raise this issue with the trial court.Â Because this point of error has not been preserved, it is overruled.^{^[6]}Â See Tex. R. App. P. 33.1.

Â Â Â Â Â Â Â Â Â Â Â In any event, Black makes no reference to the trial courtÂs statement, ÂIÂve considered, Mr.Â Black, probation for you.ÂÂ Omitted also was the courtÂs statement, ÂI donÂt think [the jury] would spend much time contemplatingÂwhile they would have considered it, just as IÂve considered it, I donÂt find [community supervision] to be appropriate.ÂÂ Had this point of error been preserved, the record would nevertheless fail to support BlackÂs contention that the court did not consider the full range of punishment.

Â Â Â Â Â Â Â Â Â Â Â We affirm the trial courtÂs judgment.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Josh R. Morriss, III

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Chief Justice

Date Submitted:Â Â Â Â Â Â Â Â Â February 1, 2011Â Â Â Â Â Â Â Â

Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â February 2, 2011

Do Not Publish

^{^[1]}Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.Â See Tex. GovÂt Code Ann. Â§ 73.001 (Vernon 2005).Â We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.Â See Tex. R. App. P. 41.3.

^{^[2]}The result of the HGN test did not indicate intoxication because Black was not under the influence of depressants.Â

^{^[3]}A video recording of the stop and arrest depicting these events was played during the bench trial.Â

^{^[4]}The trial court referred to a subsequent September 14, 2009, DWI discussed in our cause number 06-10-00132-CR.Â

^{^[5]}Black argues that failure to consider the entire range of punishment is a structural error and need not be preserved by contemporaneous objection. Â This argument has been made before the Texas Court of Criminal Appeals in the past. Â See Brumit, 206 S.W.3d at 645. Â 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.Â Thus, we rely on our precedent and that of the Twelfth Court of Appeals, holding that BlackÂs complaint required an objection to the trial court below in order to preserve the issue for review.Â Willis v. State, No. 12-09-00195-CR, 2010 WL 1215145, at *1 (Tex. App.ÂTyler March 30, 2010, no pet.) (mem. op., not designated for publication).

^{^[6]}Black does not complain that counsel was ineffective for failing to raise this issue.

in the Interest of M. A., a Juvenile

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