BILLY LYNN GAY v. THE STATE OF TEXAS (2017)

MEMORANDUM OPINION

By a single issue, appellant Billy Lynn Gay contends that the trial court violated his right to due process by “failing to ask if there was any legal reason that sentence should not be imposed” before sentencing him. We affirm.

I. BACKGROUND

In 2013, pursuant to a plea agreement, appellant pleaded guilty to criminally negligent homicide, a state-jail felony. See TEX. PENAL CODE ANN. § 19.05 (West, Westlaw through Ch. 34 2017 R.S.). The trial court deferred adjudication of guilt and placed appellant on community supervision for five years. In December 2015, the State filed a motion to adjudicate guilt, alleging multiple violations of the conditions of appellant's community supervision. At a hearing on February 16, 2016, appellant pleaded “true” to all the State's allegations. The trial court revoked appellant's community supervision, adjudicated him guilty, and sentenced him to two years in state jail.

II. DISCUSSION 1

By his only issue, appellant contends the trial court violated his “[d]ue [p]rocess rights under the United States Constitution” by failing to ask him if there was any legal reason his sentence should not be imposed. Appellant cites article 42.07 of the code of criminal procedure, which provides that a defendant “shall be asked whether he has anything to say why the sentence should not be pronounced against him” and that the only reasons for which sentence cannot be pronounced are (1) a pardon, (2) incompetency, or (3) mistaken identity. See TEX. CODE CRIM. PROC. ANN. art. 42.07 (West, Westlaw through Ch. 34 2017 R.S.). Appellant also cites—without any explanation or discussion—the objectives of sentencing in section 1.02 of the penal code. See TEX. PENAL CODE ANN. § 1.02 (West, Westlaw through Ch. 34 2017 R.S.).

Allocution refers to the trial court affording a criminal defendant the opportunity to “speak in mitigation of the sentence to be imposed.” Eisen v. State, 40 S.W.3d 628, 631–32 Tex. App.—Waco 2001, pet. ref'd) (quoting A DICTIONARY OF MODERN LEGAL USAGE 45 (Bryan A. Garner, ed., 2d ed., Oxford 1995)).

Appellant's argument is without merit. An objection to a denial of allocution is required to preserve a complaint on appeal. See Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. 1978) (overruling issue raising violation of article 42.07 where “[t]here were no objections to the court's failure to inquire of the appellant if she had anything to say why the sentence should not be pronounced against her”); Eisen, 40 S.W.3d at 637 (holding that “court's failure to follow article 42.07 was not preserved for our review” where “issue [was raised] for the first time on appeal”); see also Russell v. State, Nos. 13-14-00018-CR and 13-14-00019-CR, 2015 WL 4593728, at *2 (Tex. App.—Corpus Christi July 30, 2015, no pet.) (mem. op., not designated for publication); Sanchez v. State, Nos. 13–13–00244–CR and 13–13–00245–CR, 2014 WL 495268, at *1 (Tex. App.—Corpus Christi Feb. 6, 2014, no pet.) (mem. op., not designated for publication).

Here, appellant testified at the revocation hearing. After discussing various punishment options with appellant and his counsel, the trial court asked, before pronouncing sentence, “Okay. Anything else you would like to say before I pronounce your sentence?” Appellant responded, “Just that I will follow the mercy of the Court with you, ma'am.” Clearly, appellant made no objection and did not request any further opportunity to address the trial court in mitigation of his sentence. Appellant has not preserved any issue for appellate review. See TEX. R. APP. P. 33.1(a)(1); Eisen, 40 S.W.3d at 637. Moreover, this Court and others have previously determined that the right to allocution is not protected under the United States Constitution. See Russell, 2015 WL 4593728 at *2 (citing cases). We overrule appellant's sole issue.

In fact, appellant's appellate counsel is fully aware of this Court's well-established precedent on these issues because as appellate counsel, he has raised the exact same and related issues on numerous prior occasions. A cursory Westlaw search revealed the following cases in which appellant's counsel raised the same or similar issues: Busbee v. State, No. 13-16-00555-CR, 2017 WL 541133, at **3–5 (Tex. App.—Corpus Christi, Feb. 9, 2017, no pet.) (mem. op., not designated for publication) (holding that allocution is not a constitutional right and that appellant failed to preserve the issue by failing to request an opportunity to make a statement and failing to object for not being allowed to do so); Russell, 2015 WL 4593728, at *2 (same); Pena v. State, No. 13-14-00120-CR, 2014 WL 4161562, at *5 (Tex. App.—Corpus Christi Aug. 21, 2014, no pet.) (mem. op., not designated for publication) (holding allocution is not a constitutional right); Sanchez, 2014 WL 495268, at **1–2 (holding issue not preserved where no objection to denial of allocution and that allocution not a constitutional right); Clifford v. State, No. 13-10-00256-CR, 2010 WL 5020237, at *2 –3 (Tex. App.—Corpus Christi Dec. 9, 2010, pet. ref'd) (mem. op., not designated for publication) (holding allocution not a constitutional right); Garcia v. State, No. 13-10-00281-CR, 2010 WL 4156458, at *3 (Tex. App.—Corpus Christi Oct. 21, 2010, pet. ref'd) (mem. op., not designated for publication) (holding allocution is not a constitutional right); Dykes v. State, No. 13-09-00532-CR, 2010 WL 3279682, at *1 (Tex. App.—Corpus Christi Aug. 19, 2010, no pet.) (mem. op., not designated for publication) (holding right to allocution not preserved where no objection); Aguilar v. State, No. 13-09-00613-CR, 2010 WL 2432095, at *1 (Tex. App.—Corpus Christi June 17, 2010, no pet.) (mem. op., not designated for publication) (same); Arguellez v. State, No. 13-09-136-CR, 2009 WL 3210934, at *2 (Tex. App.—Corpus Christi Oct. 8, 2009, no pet.) (mem. op., not designated for publication).

These authorities clearly establish this Court's controlling precedent on the sole issue raised in this appeal. None of these authorities are cited in the brief submitted by appellant's counsel. Appellant's counsel is clearly aware of such authorities because he was the appellate counsel in each of the cases cited above.

In his brief in this case—and in many of the cases cited above—appellant's counsel has included the following notation: “Defendant acknowledges that this argument is foreclosed under current law but raises it in an adversarial fashion for purposes of preserving error for possible further review.” We have noted on several occasions, most recently in Busbee, that “'further review' seems unlikely, given that the Texas Court of Criminal Appeals refused to grant petitions for discretionary review in Garcia, Clifford, and Gonzalez.” Busbee, 2017 WL 541133, at *1 n.2. We will again note that “further review” seems exceedingly unlikely.

III. CONCLUSION

We affirm the trial court's judgment.

FOOTNOTES

1.   The State declined to file a brief in this case.

DORI CONTRERAS Justice