AFFIRMED and Opinion Filed October 25, 2021 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-20-01093-CR 

No. 05-20-01094-CR 

No. 05-20-01095-CR 

DAYTON BLANE GREEN, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 196th District Court 

Hunt County, Texas 

Trial Court Cause Nos. 33107CR, 33108CR, 33109CR 

MEMORANDUM OPINION 

Before Justices Schenck, Smith, and Garcia 

Opinion by Justice Garcia 

Appellant pleaded guilty to two counts of aggravated assault on a public 

servant and one count of evading arrest or detention with a motor vehicle. After a 

punishment hearing, the court assessed punishment at life in prison in the aggravated 

assault cases and ten years in prison in the evading arrest case, with the sentences to 

run concurrently. Judgments were entered accordingly. 
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In two issues, appellant argues that the trial court’s sentence determination 

was erroneous because the court considered evidence that was not presented in court. 

Finding no reversible error, we affirm the trial court’s judgments. 

I. BACKGROUND

During the punishment hearing, State trooper Joseph Stewart testified that on 

the night in question, he received a call from Josh Richardson, a deputy from the 

sheriff’s department, advising that law enforcement was looking for appellant 

because he was suspected of taking a safe from his mother. The patrol cars were in 

the same vicinity when Officer Richardson reported that a vehicle ran a stop sign. 

As Officer Stewart looked up, he saw the same vehicle run the next stop sign. 

Appellant was driving the vehicle. 

Officer Stewart activated the lights on his marked patrol car and attempted to 

stop appellant for a traffic violation. Appellant did not pull over and a high-speed 

chase ensued. Appellant hit a sign and a gas main during the chase, and Madeline 

Osborn, another driver on the road, testified that she had to take evasive action and 

narrowly avoided a collision with appellant. 

While in pursuit, Officer Stewart saw sparks fly off his patrol car. He later 

discovered damage to the windshield of the car and the front bumper of his vehicle 

that he believed resulted from gunshots appellant fired. A videotape of the incident 

was admitted into evidence without objection. 
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Officer Richardson also testified about the incident and his in-car video was 

admitted into evidence without objection. The recording was played for the court, 

and the officer identified seven times he believed a shot was being fired, as 

evidenced by sparks, a “clink” noise, a “thud” and a flash from appellant’s car. 

The video also shows appellant’s vehicle hit a spike strip that was set to slow 

the pursuit. After appellant’s vehicle was stopped, appellant threw his door open and 

there was a flash. Appellant then threw something out of his hand. A .25 caliber 

handgun and shell casings were recovered from the parking lot where appellant was 

apprehended. Officer Richardson subsequently discovered a chip in his windshield 

and three round impact marks on his vehicle that he believed resulted from the shots 

appellant fired. 

II. ANALYSIS

Appellant raises two issues, arguing that the court erred by assessing life 

sentences based on evidence that was not before the court. We consider these issues 

in tandem. 

Appellant maintains that the court abused its sentencing discretion by relying 

on an unproven deduction from the evidence—namely, that he positioned his vehicle 

to get a better shot at law enforcement. Specifically, during sentencing, the trial 

judge commented: “You moved over to the shoulder . . .Why? Because you couldn’t 

see to shoot his window without moving over . . . You moved over so you could see 
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him better and shoot at him.” According to appellant, this was an impermissible 

inference because no one testified that appellant moved over to the side of the road. 

We note at the outset that appellant did not object to his sentence at the 

punishment hearing or in a motion for new trial. See TEX. R. APP. P. 33.1; Burt v. 

State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013). But even if the complaint had 

been preserved for our review, the discretionary assessment of punishment within 

legislatively prescribed boundaries has long been ingrained and accepted in 

American jurisprudence. As the Court of Criminal Appeals has explained, 

[T]he task of setting a particular length of confinement within the 

prescribed range of punishment is essentially a “normative” judgment. 

Aside from a few specific instances where the range of punishment 

depends upon the determination of discrete facts, “[d]eciding what 

punishment to assess is a normative process, not intrinsically 

factbound.” Indeed, we have described the sentencer’s discretion to 

impose any punishment within the prescribed range to be essentially 

“unfettered.” Subject only to a very limited, “exceedingly rare,” and 

somewhat amorphous Eighth Amendment gross-disproportionality 

review, a punishment that falls within the legislatively prescribed 

range, and that is based upon the sentencer’s informed normative 

judgment, is unassailable on appeal. 

Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006) (internal 

citations omitted); see also United State v. Booker, 543 U.S. 200, 233 (2005) (stating 

court has never doubted the authority of a judge to exercise broad discretion in 

imposing a sentence within a statutory range). Consequently, a sentence will 

generally not be disturbed when it is within the statutorily prescribed range. See 

Nunez v. State, 565 S.W.2d 536, 538 (Tex. Crim. App. 1978). 
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The range of punishment for the first-degree offense of aggravated assault of 

a public servant is life imprisonment or a term of not more than 99 years or less than 

five, and a fine not to exceed $10,000. See TEX. PENAL CODE ANN.

§22.02(a),(b)(2)(A); 12.32. Appellant’s sentences are within this range. 

Appellant provides no authority, nor are we aware of any, holding that a trial 

judge’s commentary is the equivalent of a ruling or is somehow to be afforded the 

same effect. Likewise, appellant provides no legal support for the proposition that 

the judge’s review of the punishment evidence precludes reasonable inferences and 

deductions based on the judge’s perception of that evidence. Appellant pleaded 

guilty to the aggravated assaults, and there was no question that he committed these 

offenses by shooting at the vehicles pursuing him. Videotapes showing the pursuit, 

appellant’s vehicle, the shots, the damage to the patrol cars, the discovery of the gun 

and shell casings, and appellant’s eventual apprehension were admitted into 

evidence and played for the court. The trial judge considered that evidence to assess 

an appropriate sentence in the statutory range. 

Appellant also urges us to construe his challenge to the trial court’s 

punishment assessment as one of legal sufficiency. But other than opining that the 

same guilt/innocence sufficiency review should apply to this sentencing 

determination, appellant provides no argument or legal authority to support the 

proposition he seeks to advance. As a result, the issue is inadequately briefed. See 

TEX. R. APP. P. 38.1.; Bohannan v. State, 546 S.W.3D 166, 179 (Tex. Crim. App. 
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2017) (concluding issue inadequately briefed when argument was conclusory and 

lacked citation to appropriate authorities). 

Moreover, even if we were to entertain this argument, we find no basis for 

such review on this record; it is simply not possible. See Montelongo v. State, No. 

08-18-00093-CR, 2020 WL 4034961, at *5 (Tex. App.—El Paso 2020, pet. ref’d); 

see also Parker v. State, 462 S.W.3d 559, 566 (Tex. App.—Houston [14th Dist.] 

2015, no pet.) (declining sufficiency review of sentence); Shaw v. State, No.03-19-

00435-CR, 2020 WL 4726696, at *2 (Tex. App.—Austin Aug. 13, 2020, no pet.) 

(mem. op.) (same); Jarvis v. State, 315 S.W.3d 158, 162 (Tex. App.—Beaumont 

2010, no pet.) (same); Garcia v. State, 316 S.W.3d 734, 735 (Tex. Crim. App. 1958) 

(“If the punishment is within that prescribed by the statute, it is beyond the province 

of this court to pass on the question of whether the evidence is sufficient to support 

a punishment greater than the minimum.”). 

 Underpinning legal-sufficiency review is the principle that “no person shall 

be made to suffer the onus of a criminal conviction except upon sufficient proof—

defined as evidence necessary to convince a trier of fact beyond a reasonable doubt 

of the existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 

316 (1979). While an appellate court always has the responsibility to confirm, when 

properly challenged, that the evidence at issue comports with the beyond-areasonable-doubt standard during the guilt/innocence stage of a criminal proceeding, 

the same need not be said during the punishment phase. Except for enhancement 
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allegations, which, like criminal elements, impose on the State a beyond-areasonable-doubt standard of evidentiary proof, see e.g. Wood v. State, 486 S.W.3d 

583, 589 (Tex. Crim. App. 2016) (applying legal sufficiency review to evidence 

supporting “true” finding of enhancement paragraph), when it comes to assessing 

the appropriate punishment applicable to a particular defendant, “neither party 

carries the burden of proving what punishment should be assessed within the 

statutorily prescribed range applicable to a given offense.” Jordan v. State, 256 

S.W.3d 286, 291 (Tex. Crim. App. 2008). 

We are not aware of a case in which the Court of Criminal Appeals has ever 

applied a legal-sufficiency review to a punishment proceeding that did not involve 

some form of statutory enhancement allegation that potentially increased the 

applicable punishment. Rather, in the context of punishment assessment alone, the 

Court has observed that when “considering all of the evidence admitted during the 

guilt and punishment phases, the factfinder engages in a normative process that is 

uninhibited by any required, specific fact determination to decide what particular 

punishment to assess within the range prescribed by law.” Jordan, 256 S.W.3d at 

292. As we have noted, in such a context, the factfinder’s discretion to impose any 

punishment within the prescribed range is essentially “unfettered.” Chavez, 213 

S.W.3d at 323. This case is not one in which no evidence supported the punishment 

decision, thereby implicating appellant’s due process and due course of law 

protections. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). 
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Accordingly, we decline appellant’s invitation to conduct a legal sufficiency review 

of his sentences. 

The record reflects that the sentences imposed were based on the court’s 

normative, informed judgment, and they were within the statutory range. Appellant’s 

issues are resolved against him, and the trial court’s judgments are affirmed. 

Do Not Publish 

TEX. R. APP. P. 47.2(b) 

201093F.U05 

 

/Dennise Garcia/ 

DENNISE GARCIA 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

DAYTON BLANE GREEN, 

Appellant 

No. 05-20-01093-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 196th District 

Court, Hunt County, Texas 

Trial Court Cause No. 33107CR. 

Opinion delivered by Justice Garcia. 

Justices Schenck and Smith 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered October 25, 2021 

 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

DAYTON BLANE GREEN, 

Appellant 

No. 05-20-01094-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 196th District 

Court, Hunt County, Texas 

Trial Court Cause No. 33108CR. 

Opinion delivered by Justice Garcia. 

Justices Schenck and Smith 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered October 25, 2021 

 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

DAYTON BLANE GREEN, 

Appellant 

No. 05-20-01095-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 196th District 

Court, Hunt County, Texas 

Trial Court Cause No. 33109CR. 

Opinion delivered by Justice Garcia. 

Justices Schenck and Smith 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered October 25, 2021