Brian Luke Jacobs v. the State of Texas

Opinion filed August 14, 2025

In The

Eleventh Court of Appeals
__________

No. 11-23-00269-CR
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BRIAN LUKE JACOBS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. 17310

OPINION
Pursuant to a plea agreement, Appellant, Brian Luke Jacobs, pleaded guilty to
possession of methamphetamine in the amount of four grams or more but less than
200 grams, a second-degree felony. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.115(d) (West Supp. 2024). In accordance with the plea agreement, Appellant
was sentenced to ten years’ incarceration, his sentence was suspended, and he was
placed on community supervision for a period of five years. Eight months later, the
State filed a motion to revoke Appellant’s community supervision. Following a
hearing on the State’s motion, the trial court found that Appellant had violated
certain terms and conditions of his community supervision, revoked Appellant’s
community supervision, and assessed his punishment at ten years’ imprisonment.
In his sole issue on appeal, Appellant contends that the trial court refused to
consider the full range of punishment prior to imposing the maximum sentence. We
modify and affirm.
I. Factual and Procedural History
Appellant pleaded guilty on May 11, 2022. On January 17, 2023, the State
filed a motion to revoke Appellant’s community supervision. In its first amended
motion filed on June 14, 2023, the State alleged that Appellant had (1) committed a
new offense of aggravated assault with a deadly weapon on or about May 24, 2023;
(2) failed since July 2022 to report to his community supervision officer as directed;
(3) failed to perform his community service; (4) failed to attend, participate in, and
successfully complete the recommended course of treatment program; and (5) failed
to attend Alcoholics/Narcotics Anonymous meetings; (6) failed to participate in the
Intensive Supervision Program; and (7) failed to pay for drug screening, court costs,
and fees. At the hearing on the State’s first amended motion, Appellant pleaded “not
true” to all the allegations, and the following testimony was elicited.
Deputy JR Patterson with the Palo Pinto County Sheriff’s Department
testified that on May 24, 2023, he was attempting to execute an arrest warrant for
Appellant at Appellant’s residence, issued after the State filed its initial motion to
revoke Appellant’s community supervision. Appellant was in the front yard, and
upon making eye contact with Deputy Patterson, Appellant fled and “barricaded”
himself inside his home.

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Mineral Wells Police Department Officer Mark Glover testified that he
arrived at Appellant’s residence to assist Deputy Patterson in executing the warrant
and that he accompanied Deputy Patterson to the back of the residence. It was then
that Officer Glover made contact with an elderly man later identified as Appellant’s
father, who invited Officer Glover inside the residence to speak with Appellant. Just
as Officer Glover received permission to enter the residence, he overheard an
individual inside say, “D--n it, dad.” Officer Glover stepped inside to find
Appellant, approximately ten to fifteen feet away, holding a silver revolver, pointed
directly at him. Officer Glover testified that he immediately exited the residence,
unholstered his weapon, and informed the other officers that Appellant was armed.
Under the guidance of the Texas Rangers and a Texas Department of Public
Safety negotiator, Deputy Patterson spoke with Appellant on the phone. Appellant
made several demands during the phone call, including a request for transport to
anywhere other than the Palo Pinto County Jail. After over two hours of
negotiations, Appellant exited the residence and was arrested without further
incident. Officer Glover confirmed that the handgun recovered from inside
Appellant’s residence following Appellant’s arrest was the same handgun that
Appellant had pointed at him.
Palo Pinto County Probation Department Officer Rauni Whisenant testified
that he had reviewed Appellant’s community supervision conditions with Appellant
on the day Appellant originally entered into the plea agreement. According to
Whisenant, Appellant made an initial payment of $100 toward his community
supervision fees and court costs in early June 2022, and Appellant “reported the first
couple of times.” However, Appellant had failed to make any payments since then,
and he last reported on June 24, 2022. Whisenant additionally testified that
Appellant had not completed any court-ordered community service, nor had he

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attended Alcoholics/Narcotics Anonymous meetings or the intensive supervision
program as ordered. Appellant was also enrolled in an outpatient treatment program,
which he did not attend and was unsuccessfully discharged from.
After hearing the evidence, the trial court found all the allegations to be “true,”
revoked Appellant’s community supervision, and sentenced Appellant to ten years’
imprisonment. This appeal followed.
II. Discussion
Appellant argues that the trial court violated his due process rights by failing
to consider the full range of punishment and imposing a sentence of ten years’
imprisonment.
A. Standard of Review and Applicable Law
We review Appellant’s claim that, at the time that his community supervision
was revoked, the trial court abused its discretion in failing to consider the full range
of punishment. See Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014);
see generally TEX. CODE CRIM. PROC. ANN. art. 42A.751(d) (West Supp. 2024).
Due process requires a hearing before a neutral and detached judge who
considers the full range of punishment. Grado, 445 S.W.3d at 739. A trial court’s
arbitrary refusal to consider the entire range of punishment constitutes a denial of
due process. Id. However, a trial court may consider non-arbitrary factors, and we
presume that the trial court considered the full range of punishment absent evidence
to the contrary. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006);
see also Dominguez v. State, No. 07-24-00106-CR, 2025 WL 609198, at *6 (Tex.
App.—Amarillo Feb. 25, 2025, no pet.) (mem. op., not designated for publication)
(applying the presumption where the appellant argued the trial court failed to
consider the full range of punishment following revocation proceedings); Newman v.
State, No. 11-22-00076-CR, 2024 WL 847671, at *4 (Tex. App.—Eastland Feb. 29,

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2024, no pet.) (mem. op., not designated for publication) (“[I]n the absence of
partiality by the trial court or a clear showing of bias, we must presume that the trial
court was both fair and impartial.”).
B. Preservation
At the outset, we address the State’s argument that Appellant failed to
preserve his issue for review. See Darcy v. State, 488 S.W.3d 325, 327 (Tex. Crim.
App. 2016) (“Preservation of error is a systemic requirement.”). While several
intermediate appellate courts have previously held that a defendant must preserve a
complaint that the trial court failed to consider the full range of punishment,1 these
cases predate the Court of Criminal Appeals’ controlling decision in Grado. See
Grado, 445 S.W.3d at 736. In Grado, the Court of Criminal Appeals analyzed
whether an appellant’s claim that the trial court failed to consider the full range of
punishment in a revocation proceeding required a timely objection to preserve error
for appellate review. Id. The court held that it did not. Id. The court stated that the
right to be sentenced by a judge who considers the full range of punishment is a
category two right under Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993),
and while “waivable,” the right is not forfeitable. Id. at 739–40. We have followed
Grado. See, e.g., Metts v. State, 528 S.W.3d 818, 820 (Tex. App.—Eastland 2017,
pet. ref’d) (recognizing that “[i]n Grado, the Court of Criminal Appeals reviewed
the defendant’s claim that his right to have a judge consider the full range of

1
See Akers v. State, No. 14-12-00422-CR, 2013 WL 507245, at *1 (Tex. App.—Houston [14th
Dist.] Feb. 12, 2013, pet. ref’d) (mem. op., not designated for publication); Guilbeau v. State, No. 06-10-
00140-CR, 2011 WL 1458701, at *1 (Tex. App.—Texarkana Apr. 18, 2011, pet. ref’d) (mem. op., not
designated for publication); Cochran v. State, No. 12-09-00167-CR, 2010 WL 3432664, at *1 (Tex. App.—
Tyler Aug. 31, 2010, no pet.) (mem. op., not designated for publication); Schellenberg v. State, No. 03-09-
00377-CR, 2010 WL 2428093, at *1 (Tex. App.—Austin June 17, 2010, no pet.) (mem. op., not designated
for publication); Garza v. State, No. 13-08-00244-CR, 2009 WL 2914470, at *2 (Tex. App.—Corpus
Christi–Edinburg Aug. 28, 2009, no pet.) (mem. op., not designated for publication); Hurrell v. State,
No. 09-04-204-CR, 2005 WL 615846, at *1 (Tex. App.—Beaumont Mar. 16, 2005, no pet.) (mem. op., not
designated for publication).

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punishment was a right that was not subject to procedural default”); Newman, 2024
WL 847671, at *3–6; Licon v. State, No. 11-17-00221-CR, 2020 WL 373093, at *2
(Tex. App.—Eastland Jan. 23, 2020, pet. ref’d) (mem. op., not designated for
publication).
Although Grado concerned a fact pattern not before us—the trial court relied
on the incorrect range of punishment—several sister courts have since applied
Grado to cases where, like here, the trial court was not mistaken about the range of
punishment that it was required to consider. See Grado, 445 S.W.3d at 741 (“In the
absence of a defendant’s effective waiver, a judge has an independent duty both to
identify the correct statute under which a defendant is to be sentenced and the range
of punishment it carries and to consider the entire range of punishment in sentencing
a defendant irrespective of a defendant’s request that he do so.”) (emphasis added);
see, e.g., Ray v. State, No. 14-22-00286-CR, 2023 WL 4571960, at *3 (Tex. App.—
Houston [14th Dist.] July 18, 2023, no pet.) (mem. op., not designated for
publication) (applying Grado for the proposition that a criminal defendant has the
right to challenge whether the trial court considered the full range of punishment
absent an express waiver of that right); Thompson v. State, No. 12-21-00072-CR,
2021 WL 5118388, at *3 n.3 (Tex. App.—Tyler Nov. 3, 2021, pet. ref’d) (mem. op.,
not designated for publication) (same); Taylor v. State, No. 09-19-00171-CR, 2020
WL 6472684, at *3 (Tex. App.—Beaumont Nov. 4, 2020, no pet.) (mem. op., not
designated for publication) (same); Evans v. State, No. 06-19-00260-CR, 2020 WL
912756, at *1 (Tex. App.—Texarkana Feb. 26, 2020, no pet.) (mem. op., not
designated for publication) (same); Bowie v. State, No. 02-16-00379-CR, 2017 WL
2806320, at *2 (Tex. App.—Fort Worth June 29, 2017, no pet.) (mem. op., not
designated for publication) (same); Parker v. State, No. 03-15-00369-CR, 2016 WL
3974584, at *3 n.2 (Tex. App.—Austin July 20, 2016, no pet.) (mem. op., not

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designated for publication) (same); Pena v. State, No. 13-14-00291-CR, 2015 WL
3634463, at *2 (Tex. App.—Corpus Christi–Edinburg June 11, 2015, pet. ref’d)
(mem. op., not designated for publication) (same).
We conclude that Appellant may raise this issue for the first time on appeal as
no affirmative waiver appears in the record. See Grado, 445 S.W.3d at 741.
C. Analysis
Appellant was convicted of possession of methamphetamine in an amount of
four grams or more but less than 200 grams, a second-degree felony punishable by
imprisonment for a term of not less than two years and not more than twenty years.
See HEALTH & SAFETY § 481.115(d); TEX. PENAL CODE ANN. § 12.33 (West 2019).
Under the terms of the plea agreement, the trial court was authorized to impose a
sentence of no more than ten years’ imprisonment. As noted above, Appellant was
sentenced to ten years’ imprisonment.
In support of Appellant’s contention that the trial court arbitrarily refused to
consider the full range of punishment, he cites (1) the absence of any express
statement by the trial court indicating that the court, in fact, considered a sentence
of less than ten years, and (2) the trial court’s post-sentencing remarks:
And you also have a right to appeal the sentence that I have imposed
this morning. But the sentence itself is within the parameters of your
original judgment of conviction. So I was limited to, in that regard, to
10 years. You have a retained attorney. So [defense counsel] will
perfect that appeal, if that is what you desire to do.
(Emphasis added). On its face, we do not interpret these remarks as evidence that
the trial court failed to consider the full range of punishment. See, e.g., Reyna v.
State, No. 07-24-00241-CR, 2025 WL 655896, at *3 (Tex. App.—Amarillo Feb. 27,
2025, no pet.) (mem. op., not designated for publication) (rejecting appellant’s
argument that the trial court’s statement “the court sentences you according to the
plea agreement to the underlying sentence of ten years[‘] confinement in the

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[I]nstitutional [D]ivision of the Texas Department of Criminal Justice” showed that
the trial court did not consider the full range of punishment). Rather, the trial court
was merely acknowledging the parameters of the plea agreement.
Further, nothing in the record suggests that the trial court failed to consider
the full range of punishment. Cf. Ex parte Brown, 158 S.W.3d 449, 451–52, 454–
57 (Tex. Crim. App. 2005) (holding that appellant was denied due process when the
trial court promised imprisonment of twenty-years if appellant failed to abide by the
terms of his deferred probation and later imposed the predetermined punishment at
an adjudication hearing); Cabrera v. State, 513 S.W.3d 35, 39 (Tex. App.—Houston
[14th Dist.] 2016, pet. ref’d) (holding appellant was denied due process where the
trial court told appellant that if he exercised his right to a jury trial in a misdemeanor
case, he should not be “under any illusion” that he would receive a thirty-day
sentence; the trial court’s statement “clearly indicat[ing]” that the court arbitrarily
refused to consider a portion of the permissible range of punishment).
Here, the trial court heard testimony at Appellant’s revocation hearing about
how Appellant had violated several conditions of his probation, namely, how
Appellant had failed to report to his community supervision officer; pay the required
fees; complete community service hours; attend AA/NA meetings, or participate in
any of the treatment programs as ordered. The trial court also heard evidence that
Appellant had committed a new offense—aggravated assault with a deadly weapon
against a law enforcement officer—while on community supervision. See Brumit,
206 S.W.3d at 645; see also Cumbie v. State, No. 12-21-00161-CR, 2022 WL
2374642, at *4 (Tex. App.—Tyler June 30, 2022, pet. ref’d) (mem. op., not
designated for publication) (holding that the trial court considered the full range of
punishment when it heard testimony from witnesses during the sentencing hearing
and did not make any statements indicating a failure to consider the full range of

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punishment); Meighen v. State, No. 11-11-00259-CR, 2012 WL 3799664, at *4
(Tex. App.—Eastland Aug. 31, 2012, pet. ref’d) (mem. op., not designated for
publication) (holding the same because there was “nothing in this record to
demonstrate that the trial court did not consider the full range of punishment”).
Appellant cites no authority, and we have found none, requiring a trial court
to make an express statement that it considered the full range of punishment prior to
assessing punishment. See Newman, 2024 WL 847671 at *4. Moreover, we
presume that the trial court considered the full range of punishment unless the record
affirmatively shows otherwise, which it does not. See Brumit, 206 S.W.3d at 644–
45; see also Smith v. State, No. 05-24-00037-CR, 2025 WL 1106097, at *3 (Tex.
App.—Dallas Apr. 14, 2025, no pet.) (mem. op., not designated for publication)
(“Absent a clear showing to the contrary, we presume the trial court considered the
full range of punishment.”); Newman, 2024 WL 847671, at *4 (same). Accordingly,
we overrule Appellant’s sole issue. See Brumit, 206 S.W.3d at 644–45.
IV. Modification
We have the authority to modify and reform judgments when the necessary
information is available to do so. TEX. R. APP. P. 43.2(b); see Bigley v. State, 865
S.W.2d 26, 27–28 (Tex. Crim. App. 1993); French v. State, 830 S.W.2d 607, 609
(Tex. Crim. App. 1992); see also Smith v. State, No. 11-22-00224-CR, 2024 WL
628920, at *4 (Tex. App.—Eastland Feb. 15, 2024, no pet.) (mem. op., not
designated for publication) (“This court’s power to modify a judgment is ‘not
dependent upon the request of any party, nor does it turn on the question of whether
a party has or has not objected in the trial court.’” (quoting Asberry v. State, 813
S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d))).
The judgment here lists the statute for the charged offense as “481.115(d)
Penal Code.” However, Appellant was indicted and convicted of possession of a

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controlled substance in the amount of four grams or more but less than 200 grams
pursuant to the Texas Health and Safety Code. See HEALTH & SAFETY § 481.115(d).
Accordingly, we modify the trial court’s judgment in the section entitled “Statute for
Offense” to replace “Penal Code” with “Health & Safety Code.”
V. This Court’s Ruling
We affirm the judgment of the trial court as modified.

W. BRUCE WILLIAMS
JUSTICE

August 14, 2025
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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