AFFIRM; and Opinion Filed February 3, 2015.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-14-00027-CR

No. 05-14-00028-CR

GILBERTO SANCHEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 292nd Judicial District Court

Dallas County, Texas

Trial Court Cause Nos. F12-50759-V and F12-50760-V

MEMORANDUM OPINION

Before Justices Bridges, Lang-Miers, and Myers

Opinion by Justice Lang-Miers

The State indicted Gilberto Sanchez for continuous sexual abuse of a child and 

aggravated sexual assault of a child. He waived a jury and pleaded not guilty to the trial court. 

The court found him guilty and assessed punishment at life and 60 years in prison, respectively. 

On appeal, appellant argues that he was denied due process at sentencing because the trial court 

improperly predetermined his sentence. We decide appellant’s issue against him and affirm the 

trial court’s judgments. We issue this memorandum opinion because all dispositive issues are 

settled in law. TEX. R. APP. P. 47.4.

Background

Appellant and his brother lived with appellant’s girlfriend, B, and her two daughters, R, 

who was nine at the time of trial, and S, who was seven at the time of trial. One day in early 
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2012, S told her grandmother that appellant had touched her inappropriately. Grandmother told 

her son, who called the police. The girls were interviewed, after which the police arrested 

appellant. Appellant told a CPS worker that over a several-month time period he penetrated R’s 

and S’s mouth with his penis, penetrated R’s and S’s anus with his finger, and rubbed R’s and 

S’s vagina with his hand. He said S watched as he sexually assaulted R. S testified that she also 

saw appellant’s brother sexually assault R. 

The State offered appellant a plea bargain of 30 years on the charge of continuous sexual 

abuse of a child and agreed to drop the charge of aggravated sexual assault. The trial court 

admonished appellant that if he did not accept the plea bargain and was found guilty of these 

offenses, he would face a minimum sentence of 25 years and a maximum sentence of life in 

prison in both cases with no chance of parole, that he would not get credit for good conduct and 

would have to serve his sentence day for day, and that the State had asked the court to order 

appellant’s sentences, if convicted, to run consecutively. Appellant rejected the State’s offer and 

demanded a trial, but on the day of trial waived a jury and said he wanted to try the case to the 

court. The State agreed to the jury waiver. The trial court found appellant guilty and assessed 

his punishment as stated, but ordered the sentences to be served concurrently. Comments made 

by the trial court during a pretrial hearing and the day before trial started about the State’s plea 

bargain offer are the subject of appellant’s complaints on appeal. 

Discussion

Appellant contends that the trial court predetermined his sentence by “repeatedly [telling 

him] he would face a far harsher sentence if he did not accept the State’s plea-bargain offer of 30 

years’ imprisonment.” He argues that a trial court’s “arbitrary refusal to consider the entire 

range of punishment constitutes a denial of due process, and here the trial court explicitly 

announced before trial that Sanchez would receive a severe sentence[.]” 
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A trial court denies a defendant due process of law if the court arbitrarily refuses to 

consider the entire punishment range or if it imposes, without considering the evidence, a 

predetermined sentence. McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983), 

overruled in part on other grounds by De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 

2004). However, to raise this complaint on appeal, appellant must have objected to the sentence 

unless he did not have an opportunity to do so. TEX. R. APP. P. 33.1(a); Burt v. State, 396 

S.W.3d 574, 577 (Tex. Crim. App. 2013).

The record reflects that appellant did not object to the comments made by the trial court 

at the time the comments were made. In a footnote, appellant argues that he was not required to 

object “[b]ecause the need to object was not apparent until after the sentence had been imposed, 

[and he] did not have an opportunity to object to the trial court’s action.” We disagree.

Appellant’s trial was set for December 10, 2013. While waiting for the venire panel to 

arrive, the court discussed the State’s plea bargain offer with appellant, appellant’s attorneys, and 

the State, as the court had done at a pretrial hearing on August 16, 2013. Appellant again

rejected the State’s offer and said he wanted to “go forward” with a trial. However, the court 

learned that a venire panel would not be available until the next day. Meanwhile, appellant

spoke privately with his attorneys, and, afterward, said he wanted the court to decide his guilt or 

innocence. He signed a jury waiver, the State arraigned him, he pleaded not guilty, and the court 

recessed the proceedings until the next morning. 

The comments about which appellant complains were made at the pretrial hearing four 

months before trial and the day before the trial began. Appellant not only did not object to those 

comments at the time or move to recuse the judge, but he also waived a jury after the court made 

the complained-of comments. Even if appellant’s decision to waive a jury and try the case to the 

court did not waive his complaint about the court’s comments, appellant had ample opportunity 
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to object to the comments before the trial began, at the time the sentence was imposed, or no 

later than in a motion for new trial. See Burt, 396 S.W.3d at 577. Even constitutional claims 

must be preserved for appellate review. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 

1986). Because appellant did not object to these comments, this issue presents nothing for our 

review. TEX. R. APP. P. 33.1(a); see also Burt, 396 S.W.3d at 577.

Do Not Publish

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

140027F.U05

/Elizabeth Lang-Miers/

ELIZABETH LANG-MIERS

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

GILBERTO SANCHEZ, Appellant

No. 05-14-00027-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 292nd Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. F12-50759-V.

Opinion delivered by Justice Lang-Miers, 

Justices Bridges and Myers participating.

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

Judgment entered this 3rd day of February, 2015.
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Cour

S

t of Appeals

Fifth District of Texas at Dallas

JUDGMENT

GILBERTO SANCHEZ, Appellant

No. 05-14-00028-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 292nd Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. F12-50760-V.

Opinion delivered by Justice Lang-Miers, 

Justices Bridges and Myers participating.

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

Judgment entered this 3rd day of February, 2015.