                             NUMBER 13-10-00256-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

MICHAEL CLIFFORD,                                                           Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 94th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION
      Before Chief Justice Valdez and Justices Rodriguez and Vela
              Memorandum Opinion by Justice Rodriguez
       Appellant Michael Clifford entered an open plea of guilty to one count of indecency

with a child and three counts of sexual assault of a child, without a plea agreement. See

TEX. PENAL CODE ANN. '' 21.11, 22.011 (Vernon Supp. 2010); see also id. §§ 21.11(d)

(setting out that indecency with a child is a second degree felony), 22.011(f) (identifying
sexual assault as a second degree felony). The trial court accepted Clifford's plea of

guilty and, after hearing evidence, sentenced him to twenty years' imprisonment. By two

issues, Clifford contends that: (1) article 42.07 of the Texas Code of Criminal Procedure

is unconstitutional; and (2) his sentence "violates his U[.]S[.] constitutional due process

right to receive a sentence which is not more than necessary to accomplish all of the

objectives in the Texas Penal Code." 1 We affirm the judgment as modified.

                                            I. ALLOCUTION

        By his first issue, Clifford argues that article 42.07 of the Texas Code of Criminal

Procedure "is unconstitutional in that it abridges a defendant's constitutional Due Process

right under the United States [C]onstitution to directly address the court personally, apart

from testifying, in mitigation of his sentence." See TEX. CODE CRIM. PROC. ANN. art.

42.07 (Vernon 2006).

                                    A. Relevant Background2

        Clifford called one witness in mitigation of his sentence and rested.                       During

closing argument, Clifford's counsel asked that Clifford "be permitted to allocute without

being subjected to cross-examination," and the State objected. The trial court later

announced that it would allow the defense to re-open for Clifford to testify, but it would not


        1
           We mention at the outset that Clifford's arguments mirror those made in Garcia v. State. See
No. 13-10-00281-CR, 2010 Tex. App. LEXIS 8432, at *1-12 (Tex. App.–Corpus Christi Oct. 21, 2010, no
pet. h.) (mem. op., not designated for publication). Likewise, our analysis follows this Court's precedent
set out therein. See id. We also note that Clifford states throughout his brief that his arguments are
"foreclosed under current law but [are] raise[d] … in an adversarial fashion for purposes of preserving error
for possible further review."
        2
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

                                                     2
allow Clifford to allocute without being subject to cross-examination. Clifford declined to

testify.

                        B. Standard of Review and Applicable Law

           When considering the constitutionality of a statute, this Court begins with the

presumption that the legislature has not acted unconstitutionally.         See Lawrence v.

State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) (citing State v. Moff, 154 S.W.3d 599,

601 (Tex. Crim. App. 2004)).

           "'[A]llocution' refers to a trial judge's asking a criminal defendant 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)). The origin of the common-law rule of allocution is

unknown, see id.; however, some form of allocution has been codified in both the federal

and Texas systems. See FED. R. CRIM. P. 32(i)(4)(A); TEX. CODE CRIM. PROC. ANN. art.

42.07. Article 42.07 of the Texas Code of Criminal Procedure 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:

                 1. That the defendant has received a pardon from the proper
                 authority, on the presentation of which, legally authenticated, he
                 shall be discharged;

                 2. 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

                 3. When a person who has been convicted escapes after conviction
                 and before sentence and an individual supposed to be the same has

                                               3
                been arrested 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 identity.

TEX. CODE CRIM. PROC. ANN. art. 42.07.

                                             C. Analysis

        Clifford does not contend that any of article 42.07's three reasons for withholding

pronouncement of sentence apply to him. See id. Instead, Clifford argues that the

three reasons enumerated above overly restrict his due process right to directly address

the court personally, apart from testifying, in mitigation of his sentence. See id. While

asserting that the due process clause of the United States Constitution affords him the

right to humanize his situation by personally addressing the court, similar to the right

afforded to him in federal sentencing proceedings, see FED. R. CRIM. P. 32(i)(4)(A)(ii),

Clifford acknowledges that neither Texas statutory law nor case law clearly extends the

right for him to make a personal unsworn statement to the sentencing court. Clifford also

notes that the United States Supreme Court has not clearly stated whether the denial of

allocution constitutes a federal due process violation, see Hill v. United States, 368 U.S.

424, 428 (1962), and cites no case law that holds that allocution is a constitutional right.3

See McGautha v. California, 402 U.S. 183, 218-19 (1971) ("This Court has not directly

determined whether or to what extent the concept of due process of law requires that a

criminal defendant wishing to present evidence or argument presumably relevant to the

issues involved in sentencing should be permitted to do so."), judgment vacated by

        3
           Without further argument, support, or analysis, Clifford also argues that the objectives of Texas
sentencing law, found in the penal code, cannot be accomplished without affording the him an opportunity
to allocute personally to the court prior to imposition of sentence, apart from presenting evidence or
testifying on the stand. See TEX. PENAL CODE ANN. § 1.02 (Vernon 2003). We conclude that this
argument is inadequately briefed. See TEX. R. APP. P. 38.1(i).
                                                     4
Crampton v. Ohio, 408 U.S. 941, 942 (1972); Hill, 368 U.S. at 429; Eisen, 40 S.W.3d at

634. Likewise, the Texas Court of Criminal Appeals has not interpreted the United

States Constitution as requiring such a right. Lewis v. State, 815 S.W.2d 560, 568 (Tex.

Crim. App. 1991) (en banc) (providing that "[r]emorse following commission of a serious

crime may well be a circumstance tending in some measure to mitigate the degree of a

criminal's fault, but it must be presented in a form acceptable to the law of evidence"); see

also Garza v. State, No. AP-75,477, 2008 Tex. Crim. App. Unpub. LEXIS 865, at *35

(Tex. Crim. App. Nov. 26, 2008) (not designated for publication) (holding that a defendant

does not "have a constitutional right to make a statement of remorse free from

cross-examination before punishment ha[s] been assessed"); Garcia v. State, No.

13-10-00281-CR, 2010 Tex. App. LEXIS 8432, at *1-12 (Tex. App.–Corpus Christi, Oct.

21, 2010, pet. filed) (mem. op., not designated for publication); Arguellez v. State, No.

13-09-136-CR, 2009 Tex. App. LEXIS 7832, at *6-7 (Tex. App.–Corpus Christi, Oct. 8,

2009, no pet.) (mem. op., not designated for publication).

       In Eisen, the Waco Court of Appeals addressed whether the right of allocution is of

constitutional dimension by discussing the incorporation of common-law rules into the

United States Constitution. See 40 S.W.3d at 634-35. Eisen holds that the right of

allocution has not achieved constitutional status and provides the following explanation:

              Many of the rights of an accused that we take for granted because
       they are now recognized as constitutional rights were, at common law,
       limited. The common law did not guarantee that a criminal defendant
       would have access to counsel, did not always permit a defendant to testify,
       did not provide compulsory process to obtain witnesses, and did not
       guarantee that the accused could confront his accuser. Because we now
       guarantee those rights, an accused will be heard through his counsel and
       will have access to witnesses who can aid his defense.

                                             5
               At the time article 42.07 comes into play, legal matters on the record
       have already been brought to the court's attention; factual matters relating
       to punishment have been presented through the evidence. The limitations
       of that article are designed to allow the defendant to bring to the court's
       attention legal bars to the imposition of punishment that may not be of
       record, specifically including a pardon, incompetency, and mistaken
       identity. TEX. CODE CRIM. PROC. ANN. 42.07. Thus, we believe that the
       legislature's limit to matters in bar of a sentence are reasonable and
       achieve a permissible legislative objective. See Silver v. Silver, 280 U.S.
       117, 122, 50 S. Ct. 57, 74 L. Ed. 221 (1929).

Id. at 635-36. We agree with Eisen's reasoning and conclude that allocution is not a

constitutional right. See id.; Lewis, 815 S.W.2d at 568; see also Garza, 2008 Tex. Crim.

App. LEXIS 865, at *35; Garcia, 2010 Tex. App. LEXIS 8432, at *7; Allen v. State, No.

11-05-00128-CR, 2006 Tex. App. LEXIS 5072, at *22 (Tex. App.–Eastland June 15,

2006, no pet.) (mem. op., not designated for publication).

       Nevertheless, even assuming that the right to allocute is constitutional, we would

conclude that error, if any, is harmless. See TEX. R. APP. P. 44.2(a). At the sentencing

hearing, Clifford had the right to present evidence and argument to support a mitigation

request. While Clifford chose not to testify, his wife of fourteen years did. On appeal,

Clifford does not indicate that he wished to inform the trial court that he had been

pardoned, was incompetent, or had been misidentified following an escape. See TEX.

CODE CRIM. PROC. ANN. art. 42.07.        Clifford also has not indicated what additional

mitigating evidence he would have raised if given the opportunity to address the trial court

free from cross-examination. Accordingly, we could not conclude beyond a reasonable

doubt that the complained-of error, if any, contributed to the punishment assessed. See

TEX. R. APP. P. 44.2(a).


                                             6
      Clifford's first issue is overruled.

                           II. CONSTITUTIONALITY OF SENTENCE

      By his second issue, Clifford contends that the sentence imposed "violates his

U[.]S[.] constitutional right to receive a sentence which is not more than necessary to

accomplish all of the objectives in the Texas Penal Code." He argues that "a sentence

below the maximum statutory range would have been much more appropriate in this

case" and would still have accomplished all of the sentencing objectives of the penal

code. See TEX. PENAL CODE ANN. § 1.02 (Vernon 2003). He also generally asserts

"that his substantive and procedural due process rights were violated when the court

imposed a sentence at the top end of the statutory range, in light of the facts …

established on the record." See U.S. CONST. amends. VIII, XIV.

                                A. Applicable Law

      The Texas Penal Code sets out the following objectives of sentencing:

      The general purposes of this code are to establish a system of prohibitions,
      penalties, and correctional measures to deal with conduct that unjustifiably
      and inexcusably causes or threatens harm to those individual or public
      interests for which state protection is appropriate. To this end, the
      provisions of this code are intended, and shall be construed, to achieve the
      following objectives:

        (1) to insure the public safety through:

           (A) the deterrent influence of the penalties hereinafter provided;

           (B) the rehabilitation of those convicted of violations of this code; and

           (C) such punishment as may be necessary to prevent likely recurrence
           of criminal behavior;

        (2) by definition and grading of offenses to give fair warning of what is
        prohibited and of the consequences of violation;

                                             7
         (3) to prescribe penalties that are proportionate to the seriousness of
         offenses and that permit recognition of differences in rehabilitation
         possibilities among individual offenders;

         (4) to safeguard conduct that is without guilt from condemnation as
         criminal;

         (5) to guide and limit the exercise of official discretion in law enforcement
         to prevent arbitrary or oppressive treatment of persons suspected,
         accused, or convicted of offenses; and

         (6) to define the scope of state interest in law enforcement against
         specific offenses and to systematize the exercise of state criminal
         jurisdiction.

See TEX. PENAL CODE ANN. § 1.02.

       "Save as limited by constitutional provisions safeguarding individual rights, a State

may choose means to protect itself and its people against criminal violation of its laws.

The comparative gravity of criminal offenses and whether their consequences are more

or less injurious are matters for its determination." Pennsylvania v. Ashe, 302 U.S. 51,

55-56 (1937); see Crawley v. State, 513 S.W.2d 62, 66 (Tex. Crim. App. 1974) (holding

that "[i]t is within the power of the State to define as criminal conduct whatever acts it sees

fit, so long as such acts bear some reasonable relation to the needs of society and the

safety and general welfare of the public").        The Eighth Amendment provides that

"[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishment inflicted" and is applicable to punishments imposed by state courts

through the Fourteenth Amendment's Due Process Clause. U.S. CONST. amends. VIII,

XIV; Robinson v. California, 370 U.S. 660, 667 (1962). The Eighth Amendment does not

require strict proportionality between the crime and the sentence; rather, it forbids


                                              8
extreme sentences that are "grossly disproportionate" to the crime. Ewing v. California,

538 U.S. 11, 21 (2003).       In general, Texas courts have held that as long as the

punishment assessed falls within the statutory range, the punishment is not excessive.

See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Trevino v. State, 174

S.W.3d 925, 928 (Tex. App.–Corpus Christi 2005, pet. ref'd).

                                       B. Analysis

       Clifford's sentence falls within the punishment range for second-degree felonies.

See TEX. PENAL CODE ANN. § 12.33(a) (Vernon Supp. 2010) (providing that the applicable

range of punishment for a second-degree is imprisonment for "any term of not more than

20 years or less than 2 years"). Although this normally does not end our inquiry, see

Winchester v. State, 246 S.W.3d 386, 388 (Tex. App.–Amarillo 2008, pet. ref'd)

(recognizing that a prohibition against a grossly disproportionate sentence survives under

the federal constitution apart from any consideration whether the punishment assessed is

within the statute's punishment range), Clifford made no objection to his sentence either

at the time of sentencing or in any post-trial motion. To preserve error for appellate

review, a party must present a timely objection to the trial court, state the specific grounds

for the objection, and obtain a ruling. TEX. R. APP. P. 33.1(a). By failing to specifically

object in the trial court or in a post-trial motion, Clifford has waived any error for our

review. See Noland v. State, 264 S.W.3d 144, 151 (Tex. App.–Houston [1st Dist.] 2007,

pet. ref'd) ("[I]n order to preserve for appellate review a complaint that a sentence is

grossly disproportionate, constituting cruel and unusual punishment, a defendant must

present to the trial court a timely request, objection, or motion stating the specific grounds


                                              9
for the ruling desired."); Trevino, 174 S.W.3d at 927-28 ("Because the sentence imposed

is within the punishment range and is not illegal, we conclude that the rights [appellant]

asserts for the first time on appeal are not so fundamental as to have relieved him of the

necessity of a timely, specific trial objection."). Moreover, even had Clifford preserved

error, punishment which falls within the limits prescribed by a valid statute, as in this case,

is not excessive, cruel, or unusual. See Trevino, 174 S.W.3d at 928.

       We overrule Clifford's second issue.

                              III. MODIFICATION OF JUDGMENT

       The trial court's judgment mistakenly refers to section 21.22, a non-existent

section of the penal code, instead of section 21.11, as the statute concerning the offense

of indecency with a child. See TEX. PENAL CODE ANN. § 21.11. Because we have the

necessary data and evidence for reformation, we modify the trial court's judgment to

reflect the correct statute for the offense—Texas Penal Code section 21.11. See id.;

TEX. R. APP. P. 43.2; Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993) (en banc).

                                      IV. CONCLUSION

       We affirm the trial court's judgment as modified.



                                                     NELDA V. RODRIGUEZ
                                                     Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 9th
day of December, 2010.


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