             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-19-00129-CR
          No. 02-19-00130-CR
     ___________________________

      JOAQUIN GOMEZ, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 213th District Court
           Tarrant County, Texas
   Trial Court Nos. 1548306D, 1551982D


  Before Bassel, Womack, and Wallach, JJ.
  Memorandum Opinion by Justice Wallach
                          MEMORANDUM OPINION

      Appellant Joaquin Gomez appeals from the trial court’s judgments of

conviction for the offenses of deadly conduct and assault on a police officer. In three

issues, Gomez contends that the trial court infringed on his constitutional and

statutory right to remain silent by inviting him to make a statement immediately

before pronouncing the sentence, that the trial court erred by inviting him to make a

statement immediately after closing arguments, and that the United States

Constitution or the Texas Code of Criminal Procedure requires the trial court to

admonish a defendant before the defendant provides testimony or statements in his

own defense. Because we hold that Gomez forfeited his first two issues and that the

trial court had no duty to admonish him that he had a right not to testify during the

punishment phase, we affirm.

                                    Background

      In separate indictments, the State charged Gomez with one count of deadly

conduct by discharging a firearm and one count of assault of a police officer. See Tex.

Penal Code Ann. §§ 22.01, 22.05.

      Gomez pled guilty with no bargain. The trial court accepted Gomez’s plea, and

adjudicated him guilty, and at the same hearing, heard arguments and evidence as to

sentencing. After the State concluded its closing argument, the trial court had the

following exchange with Gomez, with no objection by Gomez:



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             THE COURT: Mr. Gomez, you obviously have the right to say
      anything you’d like for the Court to hear prior to your sentencing. You
      certainly don’t have to, but you certainly have the right to speak to the
      Court prior to being sentenced. Anything you’d like to say?

             [GOMEZ]: I was really young, dumb, and I felt—when I was in
      Green Bay, I felt—thinking about it every single day. I was thinking
      about what I did, and I just need to change. You know, I was 17, 14, 15.
      I just felt really bad for what I did. And I wasn’t thinking. I wasn’t
      thinking. I really feel bad. I just need one more chance to prove myself.
      One more.

             THE COURT: Anything else?

             [GOMEZ]: No, sir.

      The trial court then took a recess. When the hearing resumed, the trial court

sentenced Gomez to five years’ confinement for the deadly conduct offense and ten

years’ confinement for the assault offense, to run concurrently.

                                     Discussion

      In Gomez’s first two issues, he argues that the trial court violated his right to

remain silent by inviting testimony from him after he had elected not to testify. He

argues additionally that “Texas law does not require, nor does case law permit, a trial

judge to personally address the defendant to allow an opportunity to speak at a

[p]unishment hearing.” He asserts that instead of honoring his decision not to testify,

“the trial court, without any known authority, invited [him] to break his silence.”

Gomez further argues that “because the trial judge interjected his solicitation as his

last action before beginning his deliberation, the timing left [Gomez] particularly




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susceptible to inadvertent influence.” However, as we explain, Gomez has forfeited

these two issues.

       To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion stating the specific grounds, if not

apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v.

State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). Further, the party must obtain an

express or implicit adverse trial-court ruling or object to the trial court’s refusal to

rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262–63 (Tex. Crim.

App. 2013).      Constitutional issues such as Gomez’s are not immune from

preservation rules. “[I]f a party fails to properly object to constitutional errors at trial,

these errors can be forfeited.” Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App.

2012). “In the absence of proper procedural perfection of error, the only type of

errors that may be raised for the first time on appeal are complaints that the trial court

disregarded an absolute or systemic requirement or that the appellant was denied a

waivable-only right that he did not waive.” Reyes v. State, 361 S.W.3d 222, 229 (Tex.

App.—Fort Worth 2012, pet. ref’d). The right against self-incrimination is neither an

absolute requirement nor a waivable-only right; rather, it is a forfeitable right. Johnson

v. State, 357 S.W.3d 653, 658 (Tex. Crim. App. 2012) (stating that “[j]ust as a

defendant can fail to invoke his Fifth Amendment privilege, a defendant can also

voluntarily forfeit his Fifth Amendment privilege if he freely chooses to take the stand

and make incriminating statements” and that “[t]his is true even if not done

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knowingly and intelligently”). A defendant forfeits the right by not objecting when

the trial court denies the right.1         See Larios v. State, No. 13-15-00022-CR,

2015 WL 9487107, at *4 (Tex. App.—Corpus Christi–Edinburg Dec. 29, 2015, no

pet.) (mem. op., not designated for publication) (“Texas case law makes clear that a

defendant’s rights under the Fifth Amendment . . . may be forfeited by failing to

properly preserve error when those rights are denied by the trial court.”); Reyes, 361 at

229. Here, Gomez, who was represented by counsel, made the statements to the trial

court without objection. Accordingly, if the trial court’s invitation deprived him of

the privilege against self-incrimination, he forfeited his complaints by failing to object.

See Reyes, 361 S.W.3d at 229; Davis v. State, Nos. 02-05-094-CR, 02-05-106-CR,

2006 WL 413148, at *2 (Tex. App.—Fort Worth Feb. 23, 2006, pet. ref’d) (mem. op.,

not designated for publication) (holding that the appellant voluntarily forfeited her

complaint under the Fifth Amendment when she answered without objection the trial

court’s questions at sentencing).

      Gomez’s cited cases are unavailing because none hold that the privilege against

self-incrimination may not be forfeited. Estelle v. Smith, 451 U.S. 454, 463, 101 S. Ct.

1866, 1873 (1981), holds that the right against self-incrimination applies at sentencing.

Mitchell v. United States, 526 U.S. 314, 325, 119 S. Ct. 1307, 1313 (1999), and Carroll v.


       The right is self-executing when the defendant is threatened with a penalty for
       1

remaining silent, Johnson, 357 S.W.3d at 658, but the record shows no such threat here.



                                            5
State, 42 S.W.3d 129, 132 (Tex. Crim. App. 2001), both hold that a defendant’s guilty

plea does not waive the right at sentencing. Finally, Lucero v. State, 91 S.W.3d 814,

815, 817 (Tex. App.—Amarillo 2002, no pet.), addresses whether the defendant

waived his right against self-incrimination by voluntarily testifying without objection

at sentencing. It does not discuss whether the right may be forfeited and does not

discuss any of the cases that have held that it may. We overrule Appellant’s first two

issues.

          In Gomez’s third issue, he argues that the United States Constitution and the

Texas Code of Criminal Procedure require the trial court to admonish a defendant

before the defendant provides testimony or statements in his own defense and that

the trial court’s failure to provide such admonishments here is reversible error. A

defendant’s right to be properly admonished is a waivable-only right. Bessey v. State,

239 S.W.3d 809, 812 (Tex. Crim. App. 2007). We will therefore address this issue’s

merits. See Reyes, 361 S.W.3d at 229. The Texas Court of Criminal Appeals has held

that “the trial court has no duty to inform a testifying defendant, represented by

counsel, of his right not to testify.” Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim.

App. 2005); see also Johnson, 357 S.W.3d at 658 n.3 (“[A] trial judge has no independent

duty to implement a defendant’s Fifth Amendment privilege.”). While Gomez asserts

that “the case law is uncontroverted in providing that a defendant must . . . receive

admonishments at a contested [p]unishment hearing,” he cites no law for the

proposition that a trial court has an affirmative duty to admonish a defendant at

                                            6
sentencing of his right against self-incrimination. We therefore hold that the trial

court had no duty to admonish Gomez of his privilege against self-incrimination at

sentencing, and we overrule his third issue.

                                     Conclusion

      Having overruled Gomez’s three issues, we affirm the trial court’s judgments.




                                                    /s/ Mike Wallach
                                                    Mike Wallach
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: April 9, 2020




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