



 
 
 
NUMBER 13-09-00532-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 
 

HOWARD LEE DYKES,							Appellant,

v.

THE STATE OF TEXAS, 							  Appellee.
 


On appeal from the 24th District Court of 

Victoria County, Texas.
 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Garza
Memorandum Opinion by Justice Yañez
	In 2005, pursuant to a plea agreement, appellant, Howard Lee Dykes, pleaded guilty
to aggravated sexual assault, a first-degree felony, (1) and was placed on deferred-adjudication community supervision for ten years. (2)  In 2009, the State filed a motion to
adjudicate guilt, alleging multiple violations of the terms of community supervision. 
Appellant pleaded "true"  to the State's allegations.  The trial court revoked appellant's
community supervision, adjudicated him guilty, and sentenced him to forty-five years'
confinement in the Texas Department of Criminal Justice-Institutional Division.  The trial
court certified appellant's right to appeal.  In a single issue, appellant contends that article
42.07 of the 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." (3)  We affirm.  
I.  Applicable Law  
	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 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 his identity.[ (4)]


II.  Discussion  
 Among other witnesses, appellant testified at his revocation hearing. (5)  After
adjudicating appellant guilty, the trial court asked, "[i]s there any legal reason why sentence
should not be pronounced and imposed?"  Appellant's counsel responded, "No, your
Honor."
 We note that on facts remarkably similar to those here, this Court has already
considered--and rejected--the argument appellant makes in this case.  In Arguellez v.
State, (6) an unpublished case, this Court held that the defendant forfeited his complaint on
appeal because he failed to make the trial court aware of his complaint that article 42.07
is unconstitutional because it denies a defendant a right of allocution, i.e., the right of a
defendant to make a final plea to the judge on his or her own behalf prior to sentencing. (7) 
	We see no reason to depart from our prior holding.  Appellant's sole issue is
overruled.  We affirm the trial court's judgment. 




Do not publish.
Tex. R. App. P. 47.2(b).
Delivered and filed the
19th day of August, 2010.


1.  See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B), (e) (Vernon Supp. 2009).   
2.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2009). 
3.  See Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon 2006).  Appellant notes several times in his brief
that, "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."
4.  Id. 
5.  Among other witnesses, the sexual assault victim, who was eight years old at the time of the offense,
testified.  
6.  Arguellez v. State, No. 13-09-136-CR, 2009 Tex. App. LEXIS 7832, at *6 (Tex. App.-Corpus Christi
Oct. 8, 2009, no pet.) (mem. op., not designated for publication).
7.  See id. at **5-6. 

