AFFIRMED and Opinion Filed October 29, 2019 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-18-01551-CR 

GARY DON BLOYS, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 203rd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. F-1730450-P 

MEMORANDUM OPINION 

Before Justices Burns, Whitehill, and Schenck 

Opinion by Justice Whitehill 

Appellant pled guilty to sexual assault of his underage cousin in an open plea and the court 

assessed punishment at twenty years imprisonment. In a single issue, appellant now argues that 

the court violated his right to due process by considering evidence outside the record in imposing 

his sentence. Because the record does not affirmatively demonstrate that the judge considered 

evidence outside the record in imposing appellant’s sentence, we affirm the trial court’s judgment. 

I. BACKGROUND

 In an open plea appellant pled guilty to sexual assault of a child. He also signed a written 

judicial confession that was filed with the court. The court conducted a punishment hearing at 

which appellant and several of the victim’s family members testified. The complainant did not 

testify. 

Prior to arraignment, the trial judge said: 
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Okay. Let the record reflect that the Court has not heard any facts about this case 

at all except for the police report, and also, that I have not made any decisions prior 

to this hearing.1

Appellant’s counsel made no objection. 

Appellant testified that he was sexually abused as a child and he knew what he did was 

wrong. He acknowledged that sex between a man of his age and a fourteen year old child is not 

appropriate under any circumstances. Prior to the offense, appellant provided the victim with 

drugs and “allowed her” to steal. After the offense, even though he could see that the victim was 

struggling, he continued to visit her family at her home until he was told that he was no longer 

welcome. Appellant requested that the court give him probation. 

When the hearing concluded, the judge said: 

Mr. Bloys, you stole the right of the 14-year-old girl to decide for herself when it 

was right and when she desired to have sexual contact with someone. You stole 

that from her. You not only stole that from her, you groomed her in a way to get 

her to succumb to your evil. You took advantage of her father and her family by 

going to their home even after you committed the offense. This Court is disgusted. 

It’s not [Complainant] versus Gary Don Bloys. It’s the State of Texas versus Gary 

Don Bloys. So I have to consider the entire society when I sentence you today. So 

I am sentencing you to the [sic] 20 years’ confinement . . . . 

Appellant’s counsel did not object. The court signed a final judgment. (CR 58). 

Appellant subsequently filed a motion for new trial, but the motion did not raise the issue 

he now argues on appeal. 

II. ANALYSIS

As noted above, appellant did not object to the trial court’s comments or to the sentence. 

With the exception of those rights involving systemic requirements or rights that are nonforfeitable but may be affirmatively waived, all appellate complaints, whether constitutional, 

statutory, or otherwise are forfeited absent a timely request for relief in the trial court. See TEX.

 1

 The police report is not in our record. 
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R. APP. P. 33.1;see also Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Appellant 

maintains that he was deprived of a fair and impartial trial but does not argue that he was not 

required to preserve this right or cite to any authority that the court’s consideration of evidence 

outside the record violates a right so fundamental to the functioning of our adjudicatory process 

that it does not need to be preserved. But even if we assume that preservation was not required, 

the record does not reflect that the court considered improper evidence or that appellant was denied 

due process of law. 

Due process requires trial judges to be neutral and detached in assessing punishment. 

Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. 

App. 2006). According to appellant, the record shows the trial judge was not neutral because the 

judge considered the police report, which was evidence outside of the record. Appellant does not 

explain why considering evidence outside of the record would suggest the trial judge was not a 

neutral and detached officer. 

A trial judge has wide discretion in determining punishment. See Grado v. State, 445 

S.W.3d 736, 739 (Tex. Crim. App. 2014). In exercising this discretion, however, the trial judge 

must remain impartial. Id. Exercising the ability to disregard extraneous information and render 

a decision upon the record is one of the skills expected of the judiciary. See Liteky v. U.S., 510 

U.S. 540, 562 (1994) (Kennedy, J., concurring). 

Because judges, “if faithful to their oath, approach every aspect of each case with a neutral 

and objective disposition,” they enjoy a presumption of impartiality. See id. The term “bias” does 

not encompass “all unfavorable rulings towards an individual or her case.” Abdygapparova v. 

State, 243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d). Rather, “bias” connotes 

“a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, 

either because it is underserved . . . rests upon knowledge that the subject ought not to possess . . . 
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or . . . is excessive in degree.” Id. (quoting Liteky, 510 U.S. at 550). And absent a clear contrary 

showing, a reviewing court will presume that the trial court was neutral and detached. Jaenicke v. 

State, 109 S.W.3d 793, 796–97 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). 

Here, our review of the entire record reveals nothing indicating that the judge, in taking the 

actions she did, became an advocate for the State or did not consider the full range of punishment. 

We disagree that the judge’s comments demonstrate that she considered evidence outside 

the record. The court’s reference to the police report was made before arraignment where she also 

made clear that she had not made any decisions about the case. Nothing indicates that the court 

subsequently relied on the report in assessing appellant’s punishment after she heard the evidence. 

 Moreover, nothing in the record suggests either prejudice or an improper sentence. That 

the judge expressed disgust with the crime and appellant’s later actions appears to be in direct 

response to appellant’s testimony. 

A trial judge is given wide latitude to determine the appropriate sentence in a given case. 

Tapia v. State, 462 S.W.3d 29, 46 (Tex. Crim. App. 2015). As a general rule, a penalty assessed 

within the proper punishment range, as it is here, will not be disturbed on appeal. See Jackson v. 

State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). 

Because the record does not reflect that the court considered the police report in assessing 

punishment or otherwise denied appellant due process of law, we resolve appellant’s sole issue 

against him and affirm the trial court’s judgment. 

Do Not Publish 

TEX. R. APP. P. 47 

181551F.U05 

 

/Bill Whitehill/ 

BILL WHITEHILL 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

GARY DON BLOYS, Appellant 

No. 05-18-01551-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 203rd Judicial District 

Court, Dallas County, Texas 

Trial Court Cause No. F-1730450-P. 

Opinion delivered by Justice Whitehill. 

Justices Burns and Schenck participating. 

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

Judgment entered October 29, 2019