PD-0917-15 & PD-0918-15
PD-0917&0918-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/20/2015 10:18:23 AM
Accepted 7/22/2015 4:13:40 PM
NOS. & ABEL ACOSTA
----------------
IN THE COURT OF CRIMINAL APPEALS
CLERK
KEITH DWAYNE JONES PETITIONER
vs.
THE STATE OF TEXAS RESPONDENT
On appeal from cause numbers 14-14-00733-CR & 14-14-00734-CR
In the Fourteenth Court of Appeals and cause numbers 1329499 &
1325864 in the 228th District Court of Harris County, Texas
PETITION FOR DISCRETIONARY REVIEW
KEN GOODE
P.O.Box 590947
Houston, Texas 77259
(409) 779-3631
State Bar # 08143200
Goodedkc@msn.com
July 22, 2015
STATEMENT REGARDING ORAL ARGUMENT
Petitioner waives oral argument.
IDENTIFICATION OF THE PARTIES
Keith Dwayne Jones Petitioner
TDCJ-ID
Huntsville, Texas
Eric Davis Trial Defense Attorney
2028 Buffalo Terrace,
Houston, Texas
Aaron Chapman & Paul Fortenberry Trial Prosecutors
1201 Franklin
Houston, Texas
Hon. Marc Carter Trial Judge
1201 Franklin
Houston, Texas
Ken Goode Appellate Attorney
P.o. Box 590947
Houston, Texas
Devon Anderson Appellate D.A.
1201 Franklin
Houston, Texas
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes Now Keith Dwayne Jones, petitioner, and files this petition for
discretionary review and in support shows as follows:
STATEMENT OF THE CASE
Petitioner was charged by two indictments with aggravated robbery. He
pleaded guilty and the trial court assessed concurrent 25 year sentences.
STATEMENT OF PROCEDURAL HISTORY
In an opinion dated July 16, 2015 the Fourteenth Court of Appeals affirmed
the convictions and sentences.
No motion for rehearing was filed.
TABLE OF CONTENTS
Statement of the Case............................................................................. 1
Statement of Procedural History.............................................................. 1
Ground for Review
WHETHER THE LOWER COURT ERRED BY HOLDING THAT THE
RIGHT TO ALLOCUTION IS WAIVED BY A FAILURE OF THE
DEFENDANT TO OBJECT OR DEMAND A RIGHT TO SPEAK PRIOR
TO THE IMPOSITION OF SENTENCE.
Argument...................................................................................................... 2
Prayer for Relief...... ............... ............ ...... ......... ......... ...... ......... ...................... 3
Certificate of Service....................................... ....................................... .......... 3
Certificate of Word Compliance.................................................................... 4
INDEX Of AUTHORITIES
CASE
Marin v. State,
851 SoW.2d 275 (Tex. Crim. App. 1993} ............................. 0................ 2
STATUTE
Tex. Code Crim. Pro. Ann. art. 42.07............................................................... 2
GROUND FOR REVIEW
WHETHER THE COURT OF APPEALS ERRED BY HOLDING THAT
THE RIGHT TO ALLOCUTION IS WAIVED BY A FAILURE OF THE
DEFENDANT TO OBJECT OR DEMAND A RIGHT TO SPEAK PRIOR
TO THE IMPOSITION OF SENTENCE.
ARGUMENT
I.
On appeal petitioner argued that the trial court erred by not complying with
article 42.07 of the Texas Code of Criminal Procedure, which requires the trial
judge to ask a defendant whether he has anything to say as to why sentence
should not be pronounced against him.
Citing cases which pre-date this court's decision in Marin v. State, 851
S.W.2d 275 (Tex. Crim. App. 1993), the lower court held that petitioner's right to
allocution was waived because petitioner did not assert a timely objection.
II.
Petitioner contends, as he did in the lower court, that his right to allocution
is either an "absolute requirement" or at a minimum a "right which must be
implemented unless expressly waived." Id. at 279-80.
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Petitioner believes that his failure to speak up was not sufficient to render
his right to allocution forfeited.
Review is warranted so that this court can examine the right to allocution in
light of its holding in Marin.
PRAYER FOR RELIEF
WHEREFORE, petitioner prays that his ground for review be
granted.
Respectfully submitted,
/S/_Ken
_Goode
_ _ _ _ __
KEN GOODE
P.O.Box 590947
Houston, Texas 77259
(409) 779-3631; SBN 08143200
CERTIFICATE OF WORD COUNT COMPLIANCE
Relying on the word count function in the word processing software used to
produce this document I certify that the number of words used in this petition for
discretionary review is 700.
/S/__________
Ken Goode _
KEN GOODE
3
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was delivered to the
State and the State Prosecuting Attorney this 17th day of July 2015 by first class
mail.
/5/_ _
Ken _ _ _ _ __
Goode
KEN GOODE
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Affirmed and Memorandum Opinion filed July 16,2015.
In The
1Jiourteeutl1 otoud of Appeals
NO. 14-14~00733-CR
NO. 14-14-00734-CR
KEITH DWAYNE JONES, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause Nos. 1329499 & 1325864
MEMORANDUM OPINION
In these combined appeals appellant Keith Dwayne Jones challenges the
sentences imposed following his convictions on two counts of aggravated robbery.
Concluding appellant failed to preserve his complaints for appellate review, we
affirm the judgments in both cases.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged in two indictments with two separate instances of
aggravated robbery. Appellant pleaded "guilty" to each indictment. The trial court
imposed two sentences of 25 years' confinement and ordered the sentences to run
concurrently.l
U. ANALYSIS
A. Did appellant preserve for appellate review his complaints that the
trial court imposed a sentence that violated his federal and state
rights to freedom from cruel and unusual punishment?
In issues one and two, appellant asserts the trial court abused its discretion
by imposing sentences that violate his federal and state constitutional rights to be
free from cruel and unusual punishment. See U.S. Const. amend. VII; Tex. Const.
art. I, § 13. Appellant argues that the 25-year sentences are grossly
disproportionate to the offenses underlying the convictions. The State asserts that
appellant has not preserved this complaint for appeal because he failed to raise
these objections in the trial court.
The Eighth Amendment to the United States Constitution requires that a
criminal sentence be proportionate to the crime for which a defendant has been
convicted. Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d
637 (1983). Article I, Section 13 of the Texas Constitution provides that
"Excessive bail shall not be required, nor excessive fines imposed, nor cluel or
unusual punishment inflicted." Tex. Const. art. I, § 13. Both of these
constitutional rights to be free from cruel and unusual punishment may be waived.
See Nicolas v. State, 56 S.W.3d 760, 768 (Tex. App.-Houston [14th Dist.] 2001,
1 Afterappellant's counsel filed a brief on appellant's behalf, appellant filed a pro se brief
raising two issues. We do not address these issues because appellant has no right to hybrid
representation. See Marshall v. State, 210 S.W.3d 618, 620 n.l (Tex. Crim. App. 2006).
2
pet. refd); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.-Texarkana 1999,
no pet.). To preserve for appellate review a complaint that a sentence is grossly
disproportionate or constitutes cruel and unusual punishment, a defendant must
present to the trial court a timely request, objection, or motion stating specific
grounds for the ruling desired. Tex. R. App. P. 33.l(a); Rhoades v. State, 934
S.W.2d 113, 120 (Tex. Crim. App. 1996); Nicolas, 56 S.W.3d at 768. Failing to do
so results in waiver of the complaint.
Appellant did not raise a timely objection to the sentences imposed in the
trial court, nor did he raise the issue in a motion for new trial. Because appellant
failed to object to the sentences in the trial court, appellant has not preserved error
on his claim that the sentences violate his federal and state constitutional rights to
be free from cruel and unusual punishment. See Nicolas, 56 S.W.3d at 768.
Accordingly, appellant's first and second issues are overruled.
B. Did appellant preserve for appellate review his complaint that the
trial court violated his right to allocution?
In his third issue, appellant asserts that in each case the trial court violated
his right to allocution under article 42.07 of the Texas Code of Criminal Procedure
by failing to ask him whether he had anything to say as to why sentence should not
be pronounced against him. Appellant contends that the trial court's failure to
make the inquiry constitutes a denial of the right of allocution and that his
sentences are void in light of the trial court's failure. Appellant further asserts that
he did not need to preserve error in the trial court on this issue because (1) the
punishment hearing concluded immediately after the trial court pronounced the
sentences and appellant had no opportunity to speak up, and (2) the right of
allocution is a fundamental right that either must be waived expressly or is not
subject to waiver.
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Aliicle 42.07, entitled "Reasons to prevent sentence," provides:
Before pronouncing sentence, the defendant shall be asked whether he
has anything to say why the sentence should not be pronounced
against him. The only reasons which can be shown, on account of
which sentence cannot be pronounced are:
That the defendant has received a pardon from the proper authority,
on the presentation of which, legally authenticated, he shall be
discharged.
That the defendant is incompetent to stand trial; and if evidence be
shown to support a finding of incompetency to stand trial, no sentence
shall be pronounced, and the court shall proceed under Chapter 46B;
and
When a person who has been convicted escapes after conviction and
before sentence and an individual supposed to the same has been
alTested he may before sentence is pronounced, deny that he is the
person convicted, and an issue be accordingly tried before a jury, or
before the court if a jury is waived, as to his identity.
Tex. Code Crim. Proc. Ann. art. 42.07 (West, Westlaw through 2013 3d C.S.).
To preserve elTor for appeal, a party is required to make a timely request,
objection or motion to the trial court and obtain an express or implied ruling. Tex.
R. App. P. 33.1(a). This means that the appellant, as the complaining party, had
the responsibility of conveying to the trial court the complaint that the trial court
failed to ask whether he had anything to say about why his respective sentences
should not be pronounced. See Norton v. State, 434 S.W.3d 767, 771 (Tex. App.-
Houston [14th Dist.] 2014, no pet.); Demouchette v. State, 734 S.W.2d 144, 146
(Tex. App.-Houston [1st Dist.] 1987, no pet.).
The record reflects that after appellant's counsel presented closing
arguments to the trial cOUli at the punishment hearing, counsel advised the court
that appellant wanted to address the court. The trial court allowed appellant to do
so. Appellant stated that he had given his life to Christ, earned his GED (high-
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school equivalency diploma), and had not been in trouble since being incarcerated.
Appellant explained that he was not the same person described in the charges and
was not thinking straight at the time of the offenses. After appellant completed his
remarks, the trial court asked appellant if he had anything else he wanted to say
and counsel said appellant did not. After the State's closing argument, the trial
court pronounced the sentences. Appellant's counsel thanked the trial court and
asked if counsel could be excused. The trial court then excused counsel.
The trial court allowed appellant to address the court. In so doing, appellant
did not identify any applicable statutory reason why the sentences could not be
pronounced, nor has he pointed this court to evidence of such a reason. Moreover,
at no time during the punishment hearing did appellant object to the trial court's
failure to ask specifically whether appellant had anything to say as to why the
sentences should not be pronounced against him. Appellant's failure to raise this
complaint in the trial court waives his right to complain about it on appeal. See
McClintick v. State, 508 S.W.2d 616,618 (Tex. Crim. App. 1974).
Appellant, however, argues that preservation of error was not required
because the right to allocution is a fundamental right that either cannot be waived
or must be affirmatively waived. Appellant cites no authority for that proposition
and our research has revealed none. To the contrary, Texas courts have held that
the right to allocution is waived unless the defendant asserts a timely objection.
See McClintick, 508 S.W.2d at 618; Norton, 434 S.W.3d at 771; Demouchette, 734
S.W.2d at 146.
Appellant also argues that he had no opportunity to object because the
hearing ended immediately after the trial court pronounced the sentences. Even if
the lack of opportunity were a valid excuse for failing to object in the trial cOUli,
the record demonstrates that after the hearing ended, appellant's counsel asked to
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be excused. Appellant could have lodged an objection at that time but did not.
Because appellant did not object to the trial court's failure to ask if appellant had a
reason the sentences should not be pronounced, this complaint is not preserved for
appellate review. See McClinktick, 508 S.W.2d at 618; see also Norton, 434
S.W.3d at 771; Demouchette, 734 S.W.2d at 146. Appellant's third issue is
overruled.
III. CONCLUSION
Appellant has not preserved elTor on the issues he raises on appeal. Having
found all appellate issues waived, we affirm the judgment of the trial court.
/s/ Kern Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Do Not Publish -TEX. R. ApP. P. 47.2(b).
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