COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00320-CR
EDWARD BANISTER APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY
TRIAL COURT NO. F15-1860-367
----------
OPINION
----------
Appellant Edward Banister stipulated to two prior convictions for driving
while intoxicated (DWI)1 and entered an open plea of guilt to the felony offense of
DWI—third. See Tex. Penal Code Ann. § 49.09(b) (West Supp. 2016). The trial
court accepted Banister’s plea and ordered the preparation of a presentence
investigation report (PSI). After reviewing the PSI and hearing evidence during
1
The two prior DWI convictions were from 1986 and 1987.
the sentencing hearing, the trial court found Banister guilty of driving while
intoxicated and sentenced him to five years’ imprisonment. In a single point,
Banister argues that the punishment imposed by the trial court constitutes an
abuse of discretion because it is excessive and disproportionate to the offense in
violation of the Eighth and Fourteenth Amendments to the United States
Constitution. For the reasons set forth below, we will affirm.
Banister concedes that he did not object on Eighth Amendment grounds to
his punishment when it was imposed, nor did he raise Eighth Amendment
grounds in a motion for new trial. We have held on numerous occasions that
disproportionate-sentence claims must be preserved at the trial court level. See
Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d)
(holding that disproportionate-sentence claim was forfeited); Acosta v. State, 160
S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no pet.) (same); see also
Cisneros v. State, No. 02-06-00103-CR, 2007 WL 80002, at *1 (Tex. App.—Fort
Worth May 23, 2007, pet. ref’d) (mem. op., not designated for publication)
(collecting cases); cf. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013)
(“A sentencing issue may be preserved by objecting at the punishment hearing,
or when the sentence is pronounced.”). We decline Banister’s invitation to
overrule precedent. Because Banister did not raise his disproportionate-
2
sentence claim in the trial court, it is forfeited.2 We overrule the portion of
Banister’s first point challenging his sentence under the Eighth Amendment.
Banister also did not object at trial or argue in a motion for new trial that
the trial court violated his right to due process by failing to consider the entire
range of punishment. However, the right to be punished after consideration of
the full range of punishment “is a substantive right necessary to effectuate the
proper functioning of our criminal justice system” and is classified as a waivable-
only right. Grado v. State, 445 S.W.3d 736, 741–43 (Tex. Crim. App. 2014). As
a result, a complaint that the trial court failed to consider the full range of
punishment may be raised for the first time on appeal. Id. at 743.
A trial court’s arbitrary refusal to consider the entire range of punishment
constitutes a denial of due process. Id. at 739. Due process at a sentencing
hearing requires a neutral and detached hearing body or officer who does not
arbitrarily refuse to consider the entire range of punishment or willfully impose a
predetermined sentence. See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct.
2
Even if we were to reach the merits of Banister’s disproportionate-
sentence complaint, his punishment is within the statutory limits for the offense.
See Tex. Penal Code Ann. § 12.34 (West 2011) (providing that a third-degree
felony is punishable by two to ten years in prison and by a fine of up to $10,000),
§ 49.09(b) (providing that DWI is a third-degree felony if the person has
previously been convicted two times of any other offense relating to the operation
of a motor vehicle while intoxicated). Punishment that is imposed within the
statutory limits and that is based upon the sentencer’s informed normative
judgment is generally not subject to challenge for excessiveness except in
“exceedingly rare” situations. Kim, 283 S.W.3d at 475–76 (quoting Ex parte
Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006)). Banister’s case does
not present an “exceedingly rare” situation.
3
1756, 1762 (1973); Grado, 445 S.W.3d at 739–40; Brumit v. State, 206 S.W.3d
639, 645 (Tex. Crim. App. 2006). Concerning the due-process requirement that
a trial court imposing sentence must be neutral, absent a clear showing of bias,
we must presume the trial court’s actions were correct. Brumit, 206 S.W.3d at
645.
Here, in support of his contention that he was deprived of due process at
the sentencing hearing, Banister points out that his offense was enhanced by
prior offenses that were almost twenty years old and that he was in a “fragile
medical condition” due to having pancreatitis and insulin-dependent diabetes.
He articulates no explanation, however, for how these facts resulted in a due-
process violation to him, nor does he point to any place in the record where any
purported due-process violation occurred. Instead, Banister seems to argue that
the trial court failed to consider his medical conditions and the remoteness of his
prior DWI convictions when it assessed Banister’s sentence at five years’
confinement. The record before us does not establish that the trial court either
arbitrarily failed to consider the entire range of punishment or willfully imposed a
predetermined sentence. To the contrary, the record reflects that the trial court
ordered a PSI, heard testimony from witnesses, and considered argument of
counsel prior to sentencing Banister. Additionally, the statute that allows
enhancement of a DWI conviction to a third-degree felony if there are two prior
DWI convictions places no limit on the remoteness of the prior convictions. See
Tex. Penal Code Ann. § 49.09(b) (providing that DWI is a third-degree felony if
4
the person has previously been convicted two times of any other offense relating
to the operation of a motor vehicle while intoxicated); Tietz v. State, 256 S.W.3d
377, 378–80 (Tex. App—San Antonio 2008, pet. ref’d) (providing that because
offense occurred after September 2005—the effective date of the revised version
of section 49.09 that removed ten-year rule on prior convictions used for
enhancement—prior convictions from 1989 and 1994 were available to enhance
July 2006 DWI).
The record here indicates that the trial court did consider the full range of
punishment because it imposed a five-year sentence, which is less than the ten-
year maximum punishment allowed for a DWI conviction with two prior DWI
convictions; did not willfully impose a predetermined sentence; and did not
demonstrate bias. See Grados, 445 S.W.3d at 739–40; Brumit, 206 S.W.3d at
645; see also Meighen v. State, No. 11-11-00259-CR, 2012 WL 3799664, at *1,
*4 (Tex. App.—Eastland Aug. 31, 2012, pet. ref’d) (mem. op., not designated for
publication) (holding that record indicated that trial court did consider full range of
punishment because it imposed five years’ confinement, which was in the middle
of the punishment range for a third-degree felony). Because the record does not
clearly indicate a denial of Banister’s due-process rights, we overrule the
remainder of Banister’s sole point.
5
Having overruled Banister’s sole point, we affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and PITTMAN, JJ.
PUBLISH
DELIVERED: April 27, 2017
6