            NUMBERS 13-14-00018-CR & 13-14-00019-CR

                               COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


JOHN DAVID RUSSELL,                                                               Appellant,

                                               v.

THE STATE OF TEXAS,                                                               Appellee.


                      On appeal from the 25th District Court
                          of Gonzales County, Texas.


                            MEMORANDUM OPINION

              Before Justices Benavides, Perkes, and Longoria
                  Memorandum Opinion by Justice Perkes
       Appellant John David Russell pleaded guilty in appellate cause numbers 13-14-

00018-CR and 13-14-00019-CR to separate counts of burglary of a habitation, enhanced

to first degree felonies.1 See TEX. PENAL CODE ANN. § 30.02 (West, Westlaw through Ch.


       1   Appellate Cause No. 13-14-00018-CR is the appeal from trial court cause no. 134-09-B.
Appellate Cause No. 13-14-00019-CR is the appeal from trial court cause no. 135-09-B. Our analysis
allows us to consider them in a consolidated opinion.
46 2015 R.S.).       The trial court placed appellant on ten years' deferred-adjudication

community supervision.            The State subsequently moved to revoke appellant’s

community supervision and proceed with adjudication of guilt in both causes, alleging that

appellant violated his community-supervision conditions. Following a hearing, the trial

court revoked appellant’s community supervision, adjudicated him guilty, and sentenced

appellant to concurrent terms of fifteen years' imprisonment. By one issue, appellant

argues that: (1) the trial court’s failing to ask if there was any legal reason that sentence

should not be imposed prior to the pronouncement of appellant’s sentence violated his

due process rights under the United States Constitution; and (2) Texas Code of Criminal

Procedure article 42.07 is unconstitutional because it abridges a defendant’s due process

right to allocution. 2 See TEX. CODE          OF   CRIM. PROC. ANN. art. 42.07 (West, Westlaw

through Ch. 46 2015 R.S.). We affirm.3

                                     I. PRESERVATION OF ERROR

A. Applicable Law

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

court a timely request, objection, or motion that states the specific grounds for the desired

ruling if they are not apparent from the context of the request, objection, or motion. TEX.


         2 Allocution refers to the trial court affording a criminal defendant the opportunity 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., 2nd ed., Oxford
1995)). “Texas has long had a procedural rule implementing allocution.” Id. at 632. The legislature has
codified a form of allocution in article 42.07 of the Texas Code of Criminal Procedure which provides, in
relevant part, that “Before pronouncing sentence, the defendant shall be asked whether he has anything to
say why the sentence should not be pronounced against him.” TEX. CODE CRIM. PROC. ANN. art. 42.07
(West, Westlaw through Ch. 46 2015 R.S.).

        3 We note appellant mentions throughout his brief that his arguments are “foreclosed under current
law but raise[d] … in an adversarial fashion for purposes of preserving error for possible further review.”
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R. APP. P. 33.1(a)(1); Landers v. State, 402 S.W.3d 252, 254 (Tex. Crim. App. 2013);

Sample v. State, 405 S.W.3d 295, 300 (Tex. App.—Fort Worth 2013, pet. ref'd). Even

constitutional rights may be forfeited through a defendant’s failure to raise them in the trial

court.    Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004) (“Except for

complaints involving systemic (or absolute) requirements, or rights that are waivable only,

. . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by

failure to comply with [r]ule 33.1(a).”).

         An objection to a denial of allocution is required to preserve a complaint on appeal.

See Tenon v. State, 563 S.W.2d 622, 623–24 (Tex. Crim. App. 1978) (overruling issue

raising violation of article 42.07 where “[t]here were no objections to the court’s failure to

inquire of the appellant if she had anything to say why the sentence should not be

pronounced against her”); Eisen v. State, 40 S.W.3d 628, 637 (Tex. App.—Waco 2001,

pet. ref’d) (holding “court’s failure to follow article 42.07 was not preserved for our review”

where “issue [was raised] for the first time on appeal”); see also Sanchez v. State, Nos.

13-13-00244-CR, 13-13-00245-CR, 2014 WL 495268, at *1 (Tex. App.—Corpus Christi

Feb. 6, 2014, no pet.) (mem. op., not designated for publication).

B. Analysis

         At the underlying revocation hearing, the trial court asked “Anything further before

I sentence him?” Appellant’s attorney responded “No, Your Honor.” Appellant, who

previously testified at the hearing and requested the trial court to give him a “second

chance,” raised no objection and did not request an opportunity to further address the trial

court in mitigation of his sentence.


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        By failing to raise his due process argument concerning the right of allocution in

the trial court, appellant has not preserved the issue for appellate review. See TEX. R.

APP. P. 33.1(a)(1); Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009)

(“[N]umerous constitutional rights, including those that implicate a defendant’s due

process rights, may be forfeited for purposes of appellate review unless properly

preserved.”); Holmes v. State, 380 S.W.3d 307, 308–09 (Tex. App.—Fort Worth 2012,

pet. ref'd).

        Appellant has also failed to preserve his challenge to the constitutionality of Texas

Code of Criminal Procedure article 42.07. A facial challenge to the constitutionality of a

statute is a forfeitable right that may be lost by the “failure to insist upon it by objection,

request, motion, or some other behavior.” Karenev v. State, 281 S.W.3d 428, 434 (Tex.

Crim. App. 2009). Therefore, “a defendant may not raise for the first time on appeal a

facial challenge to the constitutionality of a statute.”       Id.   Likewise, a party must

challenge the constitutionality of a statute “as applied” in the trial court before raising the

issue on appeal. Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008);

Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995).

        Even had appellant preserved his issues for review, this Court and others have

previously determined that the right to allocution is not protected under the United States

Constitution. See Eisen, 40 S.W.3d at 636 (“We hold that the common law right of

allocution did not achieve constitutional status.”); see also Clifford v. State, No. 13-10-

00256-CR, 2010 WL 5020237, at *3 (Tex. App.—Corpus Christi Dec. 9, 2010, pet. ref’d)

(mem. op., not designated for publication) (concluding allocution is not a constitutional


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right); Garcia v. State, No. 13–10–00281–CR, 2010 WL 4156458, at *3 (Tex. App.—

Corpus Christi Oct. 11, 2010, pet. ref'd) (mem. op., not designated for publication) (same);

Allen v. State, No. 11–05–00128–CR, 2006 WL 1644603, at *7 (Tex. App.—Eastland

June 15, 2006, no pet.) (mem. op., not designated for publication) (observing Eisen’s

holding that “defendant did not have a constitutional right to allocution” and finding “the

court’s reasoning persuasive”).

       We overrule appellant’s issue.

                                      II. CONCLUSION

       We affirm the trial court’s judgments in appellate cause numbers 13-14-00018-CR

and 13-14-00019-CR.


                                          GREGORY T. PERKES
                                                Justice

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

Delivered and filed the
30th day of July, 2015.




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