                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00331-CR


JEFFERSON JACKSON JARVIS, III                                     APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE

                                   ----------

         FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

                                   ----------

                                  OPINION

                                   ----------

      Appellant Jefferson Jackson Jarvis, III appeals his sixty-year sentence

imposed after he pleaded guilty to aggravated sexual assault of a child,

enhanced by a prior felony. In two issues, he contends that he is entitled to a

new punishment hearing because the trial court sentenced him without

specifically asking if he had any legal reason why sentence should not be

pronounced. We affirm.

      Appellant waived a jury and entered an open plea of guilty to sexually

assaulting C.C., his brother’s twelve-year-old step-daughter. At the punishment
hearing, the State called C.C., who testified in detail about the offense, a friend of

C.C.’s, who described C.C.’s outcry on the day after, and the sexual assault

nurse examiner, who testified that she collected samples of biological material

from C.C. that was submitted for DNA analysis and that she found trauma to the

child’s sexual organ consistent with penetration.          In addition, the parties

stipulated that DNA testing had confirmed that Appellant’s DNA was found in

C.C.’s vagina, in her navel, and on her panties.

      The defense called members of Appellant’s family, who testified that they

did not believe that he had committed the offense and that C.C. was untruthful.

Appellant also testified for the limited purpose of establishing that he had chosen

to waive a jury trial and enter an open plea before the trial court, and that he had

also chosen not to testify in his own defense. He then called his brother, who

testified that Appellant was staying with him after he got out of prison, that their

grandfather died just before the offense, and that because Appellant had been

having trouble sleeping, he had given Appellant some pills.

      Appellant’s attorney argued that the offense was an isolated ―crime of

opportunity,‖ and that the trial court should consider Appellant’s grandfather’s

recent passing and Appellant’s emotional state in mitigation.




                                          2
      After the State’s closing argument, the record shows the following:

             THE COURT: Okay. All right. It’s going to be the Court’s
      decision that your punishment is assessed at 60 years confinement
      in the Institutional Division of the Department of Criminal Justice.

               Can y’all fix me a judgment and sentence --

               MS. WARDER [for the State]: Yes, sir.

               THE COURT: -- so we can go ahead and do the --

               MR. HENDRICK [for Appellant]: I’m sorry, Judge. Was that 6-
      0, 60?

               THE COURT: Yes, sir.

               MR. HENDRICK: Okay. That’s fine. My -- I just want to be
      sure.

      The trial court then sentenced Appellant and explained his right to appeal.

Appellant’s attorney informed the court that Appellant wished to appeal and

suggested that the court appoint a new lawyer for that purpose. After the trial

court instructed counsel to prepare a notice of appeal, the record shows the

following:

               THE COURT: Anything else?

             MR. HENDRICK: Do we have that certificate of appeal form
      that the --

               THE COURT: I signed it when he pled guilty Thursday.

               MR. HENDRICK: Oh, okay.

               THE COURT: There you are.

               MR. HENDRICK: All right.



                                          3
            THE COURT: He didn’t sign it but I did and you did, so -- and
      he probably needs to sign my copy that goes --

             MR. HENDRICK: Oh. That’s all right. I’ve already signed it.
      Well, that’s all right.

            THE COURT: He hasn’t.

            MR. HENDRICK: He hasn’t. We’ll get him to sign it.

            (Pause in proceedings.)

            THE COURT: All right. Anything further then?

            MR. HENDRICK: Nothing further, Judge.

            THE COURT: We’re in recess.

      Appellant contends that because the trial court did not ask him if he had

anything to say before imposing sentence, the trial court violated Appellant’s

common-law right to allocution prior to sentencing as well as the provisions of

code of criminal procedure article 42.07.     Appellant failed, however, to bring

either of these issues before the trial court by a proper objection or motion;

therefore, he has failed to preserve them for our review.1       Tex. R. App. P.

33.1(a)(1); see Tenon v. State, 563 S.W.2d 622, 623–24 (Tex. Crim. App. 1978)

(holding that nothing was preserved for review when appellant failed to object to

the trial court’s failure to follow article 42.07); McClintick v. State, 508 S.W.2d

616, 618 (Tex. Crim. App. 1974) (holding that the appellant’s failure to raise his

      1
       Appellant filed a motion for new trial and a motion in arrest of judgment,
claiming that the sentence was contrary to the law and evidence. The trial court
granted a hearing, during which Appellant failed to raise the issue he now
argues, and the trial court denied both motions.


                                        4
contention that the trial court violated his ―common-law right of allocution‖ before

the trial court preserved nothing for review).

      Although Appellant acknowledges the holdings in Tenon and McClintick,

he seems to argue that his procedural default should be overlooked because the

trial court denied him his right to make ―a final plea for mercy and mitigation.‖ As

the State points out, however, Appellant was given the opportunity to testify at

punishment and testified that he chose not to take the stand in his own defense

or in mitigation of punishment. Further, he presented witnesses who testified to

facts that they believed should have mitigated the punishment the trial court

assessed. Finally, Appellant’s attorney argued in detail why he believed that the

circumstances surrounding the offense warranted mitigation and mercy.

      We decline Appellant’s invitation to suspend the rules of error preservation

or otherwise ignore his failure to observe them. Accordingly, we overrule both of

Appellant’s issues and affirm the judgment of the trial court.




                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DAUPHINOT, J., filed a concurring and dissenting opinion.

PUBLISH

DELIVERED: October 20, 2011




                                          5
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-10-00331-CR


JEFFERSON JACKSON JARVIS, III                                           APPELLANT

                                          V.

THE STATE OF TEXAS                                                            STATE


                                       ----------

          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

                                       ----------

              DISSENTING AND CONCURRING OPINION

                                       ----------

      The conscientious majority is absolutely correct. A trial court has a duty to

give a defendant the opportunity for allocution under article 42.07 of the code of

criminal procedure.1 As I have stated previously,

             This portion of a criminal trial is often referred to as the
      allocution portion of the trial. Allocution is the common law right of a
      defendant in a criminal trial, including a trial for criminal contempt, to
      ―present his personal plea to the Court in mitigation of punishment
      before sentence is imposed.‖ Although article 42.07 of the code of

      1
       Tex. Code Crim. Proc. Ann. art. 42.07 (West 2006).
criminal procedure prohibits imposition of sentence only on the
grounds of prior pardon, incompetence to stand trial, or mistaken
identity, it still grants a defendant the opportunity to speak and to
lodge any objection to the sentence before it is pronounced. In
interpreting article 42.07 as permitting a defendant’s common law
right of allocution, we should look to the Texas Court of Criminal
Appeals’s instruction regarding the effect of a statute on common
law rights:

              It is well-established that, ordinarily, a statute
      must be interpreted according to its plain meaning, no
      more and no less. And, it is equally well-established
      that a statute must not be interpreted as abrogating a
      principle of the common law unless such overruling is
      clearly indicated, either by the express terms of the
      statute or by necessary implication from the language
      used. This second canon is based on the reasonable
      supposition that if the Legislature intended to overrule a
      principle of the common law, then it would have made
      its intent clear.

       In his concurring opinion in Breazeale v. State, Judge Clinton
discussed various procedural means available to contest an act or
finding in the trial court:

             The trial court having found that each appellant
      waived his right to trial by jury, a plethora of procedural
      means was readily available to contest that finding in
      the forum of the trial court. A motion for new trial that
      the court ―has committed [a] material error calculated to
      injure the rights of defendant‖ is a solid ground under
      Article 40.03 and, if supported by the showing appellant
      now alleges to be the case, granting a new trial would
      have placed the cause in the same position as before
      any trial had been held. A motion in arrest of judgment
      suggesting that ―judgment has not been legally
      rendered against him‖ would lie under Article 41.01 and
      related provisions of Chapter Forty One.              More
      informally, at allocution under 42.07, an accused could
      make it known that he had not properly waived his right
      to trial by jury pursuant to Article 1.13. Thereafter, a
      formal bill of exception to make the record disclose any
      event or occurrence relevant to the issue of waiver was


                                  2
              available under Article 40.09, § 6(a). Even an objection
              to the record in accordance with Article 40.09, § 7,
              would have it ―speak the truth‖ about any alleged failure
              to follow Article 1.13.

            Glaringly absent is any absolute requirement that a defendant
      object to an empty bench or file a motion for new trial in order to
      preserve his complaint.2

      Where I part ways with the majority is in its holding of waiver. The trial

court must allow a defendant allocution, and it is odd to require a defendant to

object to an empty bench. Nor is there any justification for criminal law to require

a defendant to file a motion for new trial in order to preserve his right to

allocution.

      In the case now before this court, although the trial court did not

specifically inquire if there was any reason sentence should not be imposed, I

would hold that, under the limited facts presented in this record, the trial court

provided the opportunity for allocution required by article 42.07. The trial court

announced its intent to sentence Appellant to sixty years’ confinement. Trial

counsel responded, ―Okay. That’s fine.‖       After that exchange, the trial court

asked if there was ―[a]nything else.‖ Counsel then asked about the certificate of

appeal form.     After discussing the certificate, the trial court asked again,

―Anything further then?‖ Counsel replied, ―Nothing further, Judge.‖




      2
       Laboriel-Guity v. State, 336 S.W.3d 754, 757–59 (Tex. App.—Fort Worth
2011, pet. ref’d) (Dauphinot, J., concurring) (citations omitted).


                                         3
      The majority appears to suggest that Appellant himself could have spoken

up and demanded the right that article 42.07 guarantees. But that argument is

not realistic. Despite the Texas Constitution’s guarantee that ―[i]n all criminal

prosecutions the accused shall have . . . the right of being heard by himself or

counsel, or both . . . ,‖3 courts repeatedly deny the accused this right, holding that

a defendant is not entitled to ―hybrid representation.‖4 The defendant himself can

make no objection that will preserve any complaint if that defendant is

represented by counsel who either does not realize there is an objectionable

issue or does not want to offend the trial court by objecting.

      In this case, however, there is no indication that Appellant attempted to

inform the trial court personally that he wanted to invoke his right to allocution

that article 42.07 guarantees. I would hold that, although the trial court’s inquiries

were not precisely those required by article 42.07, and using the language set

out by the statute would have been preferable, the trial court’s inquiries whether

there was anything else the defense wanted addressed provided sufficient

compliance with article 42.07.

      I would therefore overrule Appellant’s two issues, but not on the grounds of

waiver. Allocution must come before formal sentencing. 5 Pronouncing sentence

      3
       Tex. Const. art. I, § 10 (emphasis added).
      4
       See, e.g., Ex parte Bohannan, No. AP-76363, 2011 WL 1775727, at *1
n.1 (Tex. Crim. App. May 11, 2011) (emphasis added).
      5
       See Tex. Code Crim. Proc. Ann. art. 42.07.


                                          4
in open court in the defendant’s presence ends the trial.6               The oral

pronouncement controls over the written judgment. 7       If the trial court gave

Appellant no opportunity for allocution before pronouncing sentence, the trial

court could not have cured such error by allowing allocution after formal

sentencing in response to a trial objection.

      If we truly believe that only the legislature can make laws and we truly

believe that the constitutional laws that the legislature makes have meaning, I

would hold the sentence void when no opportunity for allocution is permitted.

Holding the sentence void would mean that no sentencing would have occurred,

and on remand, the trial could proceed properly to its completion. Otherwise, we

would be obligated to overrule the legislative mandate that trial courts comply

with article 42.07 and either hold that statute meaningless or hold that

compliance with the statute is optional.

      For these reasons, I concur only in the majority’s overruling Appellant’s two

issues.


                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PUBLISH

DELIVERED: October 20, 2011

      6
      See id. art. 42.01 (West Supp. 2011); Ex parte Madding, 70 S.W.3d 131,
135 (Tex. Crim. App. 2002).
      7
          Madding, 70 S.W.3d at 135.


                                           5
