Edward Banister v. State, 551 S.W.3d 768

Edward Banister pleaded guilty to felony DWI (third offense) after stipulating two prior DWI convictions from 1986 and 1987; the trial court ordered a presentence investigation (PSI).
At sentencing the court heard testimony, reviewed the PSI, heard counsel, and sentenced Banister to five years’ imprisonment (within the 2–10 year statutory range).
Banister challenged the sentence on appeal as excessive under the Eighth Amendment and as violating due process for failing to consider the full range of punishment.
Banister did not object at the punishment hearing or raise an Eighth Amendment or preservation objection in a motion for new trial.
The court treated the Eighth Amendment excessive/disproportionate claim as forfeited for lack of preservation but reached and rejected the due-process complaint on the merits, finding the record showed the court considered the full range and did not act with bias or a predetermined sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sentence is excessive/disproportionate in violation of the Eighth Amendment	Banister: five-year prison term is excessive and disproportionate to the offense	State: claim was not preserved; sentence is within statutory limits and not an "exceedingly rare" excessive sentence	Forfeited for lack of preservation; court declines to reach merits (Eighth Amendment objection waived)
Whether sentencing violated due process by failing to consider the full range of punishment	Banister: court failed to account for remoteness of prior convictions and his fragile medical condition	State: court ordered PSI, heard witnesses and argument, imposed a mid-range sentence showing consideration of full range; statute allows enhancement regardless of remoteness	Claim may be raised on appeal; record shows no arbitrary refusal to consider full range, no predetermined sentence, no bias — due-process claim rejected

Kim v. State, 283 S.W.3d 473 (Tex. App.—Fort Worth 2009) (disproportionate-sentence claims must be preserved)
Acosta v. State, 160 S.W.3d 204 (Tex. App.—Fort Worth 2005) (same)
Burt v. State, 396 S.W.3d 574 (Tex. Crim. App. 2013) (preservation of sentencing complaints)
Grado v. State, 445 S.W.3d 736 (Tex. Crim. App. 2014) (trial court must consider full range of punishment; right is waivable-only and may be raised on appeal)
Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006) (presumption of judicial neutrality absent clear showing of bias)
Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (due-process sentencing requirements: neutral, detached body)
Ex parte Chavez, 213 S.W.3d 320 (Tex. Crim. App. 2006) (sentences within statutory limits generally not excessive absent extraordinary circumstances)
Tietz v. State, 256 S.W.3d 377 (Tex. App.—San Antonio 2008) (statutory amendment removed ten-year limit for prior convictions used to enhance DWI)