NO. 12-19-00261-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DOUGLAS MACK PETERS,

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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APPEAL FROM THE 7TH 

JUDICIAL DISTRICT COURT

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).
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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).
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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.
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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)
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.