                          NUMBER 13-18-00141-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


MANUEL YBARRA III A/K/A
MANUEL YBARRA,                                                              Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 197th District Court
                        of Cameron County, Texas.


                           MEMORANDUM OPINION

             Before Justices Benavides, Hinojosa, and Perkes
                Memorandum Opinion by Justice Hinojosa

      Appellant Manuel Ybarra III appeals his conviction, pursuant to a guilty plea, for

two counts of indecency with a child by contact, a second-degree felony. See TEX. PENAL

CODE ANN. § 21.11(a)(1).    The trial court sentenced Ybarra to concurrent eight-year

sentences to be served in the Texas Department of Criminal Justice–Institutional Division.
In four issues, which we treat as three, Ybarra argues that: (1) the written judgment must

be reformed to reflect the trial court’s failure to make a finding of guilt; (2) Ybarra was

denied the effective assistance of counsel because the trial court did not permit his

counsel to present closing argument; and (3) Ybarra was denied his right to allocution.

We affirm.

                                   I.     BACKGROUND

       Ybarra pleaded guilty before an associate judge without the benefit of a plea-

bargain agreement. The associate judge admitted the State’s evidence in support of the

plea, accepted appellant’s “Written Waiver and Consent to Stipulation of Testimony,

Waiver of Jury, and Plea of Guilty,” and admonished Ybarra. The associate judge then

accepted the plea, ordered the preparation of a presentence investigation (PSI) report,

and scheduled a sentencing hearing before the district court (trial court).       Ybarra’s

counsel then stated: “I’d just like the record to reflect that the Court has made a finding

of guilty. I will represent that this case has been discussed at some point with [the trial

court,] and we reserve the right at sentencing to argue for deferred adjudication.” The

associate judge responded that Ybarra’s argument for deferred adjudication was “not

foreclosed.”

       At the sentencing hearing, the State presented argument supporting its request for

a five- to eight- year prison sentence. Ybarra’s counsel argued that deferred adjudication

was appropriate, citing various factors. The trial court then addressed Ybarra personally

regarding its review of the PSI report which indicated that Ybarra had told others that the

trial court would be lenient because of a purported affiliation between the judge and


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Ybarra’s family:

       Apparently, you’ve made allegations that you knew me and that your family
       were political, and because of that, you would get favorable treatment, I
       guess, would be the word, okay? And that really bothers me. It bothers
       me a lot, okay? It bothers me a lot, because, again, you know, your family
       members are being affected by this. Your family members are concerned
       that, “Hey, you know, he knows the judge, and, you know, he’s saying this,
       and we’re not going to have our fair day in court and all of that.” And that
       is the furthest thing from the truth. And at first when they mentioned your
       name, I didn’t know who you were until I think they were a little more specific
       and I read about the tire shop, and I think I knew your father . . . . Okay?
       But that does not interfere with my decision. You know, when I run for
       office, along with many judges, you know, if, you know, I’m asking people
       to vote for me, it’s because I will be a fair judge and I will follow the
       law . . . regardless of who appears before me. Okay? So, to me, sir, you
       know, that’s putting the family through more agony, more emotional upset
       and all of that . . . . It’s sort of like they’re being victimized again, you know?
       And that’s not right.

Ybarra’s counsel responded to the veracity of the allegations, which were attributed to the

victim’s father in the PSI report:

       I don’t blame [the victim’s father.] He was outraged as to what happened.
       He went into my client’s house and kicked in the door wanting to beat him
       up. Understandably. I understand that . . . . And the relevance of that is
       that since then there’s been no communication between [Ybarra and the
       victim’s father.] So [the victim’s father] cannot say that after the incident
       and arrest, that Mr. Ybarra was bragging, “Hey, I’m not—nothing is going to
       happen to me because I know the judge.” I think it’s—he’s very well aware
       that the Ybarra family, his father, Manuel Ybarra, was very involved in
       politics back in the ‘80s. He was well aware of that because he’s married
       to his daughter. And he’s surmising that, because of that, that he’s going
       to get favorable treatment before this Court.           But I think it’s a
       misrepresentation that’s being made that Mr. Perez—that Mr. Ybarra was
       bragging, “Nothing is going to happen to me.” To the contrary, his life is
       hanging from a little string, and he’s very well aware that you can cut that
       string and send him to prison. Very well aware of that. And I think that’s
       why, you know, we pled guilty and we’re throwing ourselves on the mercy
       of the Court hoping that this Court will, you know, have mercy on him.




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At the conclusion of the hearing, the trial court assessed punishment at eight years’

imprisonment on both counts.

      Subsequently, Ybarra filed a motion for reconsideration or reduction of sentence.

At the hearing on the motion, Ybarra’s counsel again argued that community supervision

would be appropriate while further maintaining that the allegations in the PSI report were

not true. He requested that the trial court set aside its previous sentence and reset the

matter in six months while Ybarra remains in custody. Ybarra’s counsel requested that

after six months the trial court could then consider “a motion for shock probation or six

months as a condition of community supervision.” The following exchange then occurred

concerning the appropriateness of the request:

      [State]:             Your Honor, may I respond? First off, what [defense
                           counsel] is trying to do is not legal. He is not entitled
                           to shock probation. Under—

      [Defense]:           I’m not saying it was shock probation. Let me clarify—

      [State]:             Well, that’s exactly what he’s trying—

      [Defense]:           No.

      [State]:             —to do, Your Honor.

      [Defense]:           I’m saying—I’m trying to explain the reason why I would
                           ask the Court to set aside the judgment and reset it for
                           six months, because he wouldn’t be—

      [State]:             If I can continue, Your Honor.

      [Defense]:           No. You’re misrepresenting something I said.

      [State]:             You just said “shock probation,” [defense counsel].

      THE COURT:           Gentlemen, gentlemen, gentlemen, gentlemen. You
                           finish and then I’ll allow [the defense]—

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The State completed its argument, and the trial court then announced that it was denying

Ybarra’s motion.

       Ybarra later filed a “Motion for Court to Allow Defense Counsel to Respond to

Prosecutor’s Argument,” a “Motion for Allocution and Further Motion for Reconsideration

of Sentence,” a “Motion to Correct the Judgment and to Reconvene the Sentencing

Hearing,” and a motion for new trial. After hearing argument, the trial court denied the

various motions. This appeal followed.

                                  II.    FINDING OF GUILT

       By his first issue, Ybarra argues that the written judgment incorrectly states that

the trial court made a finding of guilt. Ybarra maintains that neither the associate judge

nor the trial court expressly found Ybarra guilty, and that absent such a finding, this Court

should reform the judgment to reflect a judgment of deferred adjudication. We disagree.

       A written judgment that is in proper form is not rendered void by the absence of an

express oral pronouncement by the trial court that the accused is guilty of the offense.

Villela v. State, 564 S.W.2d 750, 751 (Tex. Crim. App. 1978); see Sanchez v. State, 222

S.W.3d 85, 88 (Tex. App.—Tyler 2006, no pet.); see also Jacobo v. State, No. 13-17-

00588-CR, 2018 WL 3764564, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 9, 2018,

no pet.) (mem. op., not designated for publication). The trial court’s action in assessing

punishment after a hearing is an implied rendition of guilt. See Villela, 564 S.W.2d at

751. Beyond the pronouncement of sentence, “no further ritual or special incantation

from the bench is necessary to accomplish an adjudication of guilt.” Jones v. State, 795

S.W.2d 199, 201 (Tex. Crim. App. 1990).

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       Here, the associate judge accepted Ybarra’s guilty plea, and the trial court

pronounced his sentence. No “further ritual or special incantation” was required. See

id. We overrule Ybarra’s first issue.

                                III.    CLOSING ARGUMENT

       By his second issue, Ybarra argues that he was denied the effective assistance of

counsel because the trial court denied his attorney the opportunity to make a closing

argument. Specifically, Ybarra maintains that his counsel was not allowed to respond to

the State’s argument that Ybarra’s request for “shock probation” was inappropriate.

A.     Applicable Law

       The Sixth Amendment guarantees the assistance of counsel in obtaining a fair

decision on the merits. See Ex parte McFarland, 163 S.W.3d 743, 751–52 (Tex. Crim.

App. 2005); Teamer v. State, 429 S.W.3d 164, 174 (Tex. App.—Houston [14th Dist.]

2014, no pet.). That right extends to closing argument, which is crucial to our adversarial

system of justice. See Herring v. New York, 422 U.S. 853, 861 (1975); Ruedas v. State,

586 S.W.2d 520, 522 (Tex. Crim. App. [Panel Op.] 1979); Teamer, 429 S.W.3d at 174.

Thus, the improper denial of closing argument may constitute a denial of the right to

counsel. McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989); Teamer, 429

S.W.3d at 174.

B.     Analysis

       Here, we observe that Ybarra’s attorney presented extensive argument to the trial

court to support his request for deferred adjudication community supervision. Ybarra’s

counsel cited various factors for the trial court to consider, including Ybarra’s age, health,


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minimal criminal history, and charitable contributions as well as the fact that Ybarra would

be subject to the registration requirements for sex offenders. Counsel presented his

arguments at both the sentencing hearing and the hearing on Ybarra’s motion for

reconsideration of the sentence.      We also note that Ybarra’s counsel was able to

respond to the State’s allegation that his request for shock probation was inappropriate.

In particular, counsel maintained that the State was misrepresenting his request, while

reiterating that he was requesting that the sentencing court set aside its earlier sentence

and set the matter again in six months. On this record, we conclude that Ybarra’s

counsel was given an adequate opportunity to present closing argument. Therefore,

Ybarra’s right to counsel was not violated.       See McGee, 774 S.W.2d at 238.          We

overrule Ybarra’s second issue.

                                     IV.    ALLOCUTION

       By his third issue, Ybarra argues that he was denied the right to allocution.

Specifically, Ybarra complains that he should have been permitted to personally address

the trial court regarding the allegations in the PSI report.

A.     Applicable Law

       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., 2d ed., Oxford 1995)). There exists both a statutory

and common-law right to allocution.        See id.   Article 42.07 of the code of criminal

procedure provides that a defendant “shall be asked whether he has anything to say why


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the sentence should not be pronounced against him” and that the only reasons for which

sentence cannot be pronounced are (1) a pardon, (2) incompetency, or (3) mistaken

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

       As a prerequisite to presenting a complaint for appellate review, the record must

show that the specific complaint was made to the trial court. See TEX. R. APP. P. 33.1(a).

Likewise, 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 (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”).

B.     Analysis

       Ybarra did not object at the sentencing hearing that he was denied either his

common law or statutory right to allocution, and therefore, he failed to preserve error.

See Eisen, 40 S.W.3d at 637 (holding that “court’s failure to follow article 42.07 was not

preserved for our review” where the “issue [was raised] for the first time on appeal”); see

also Gay v. State, No. 13-16-00158-CR, 2017 WL 2705446, at *1–2 (Tex. App.—Corpus

Christi–Edinburg June 22, 2017, no pet.) (mem. op., not designated for publication);

Russell v. State, Nos. 13–14–00018–CR and 13–14–00019–CR, 2015 WL 4593728, at

*2 (Tex. App.—Corpus Christi–Edinburg July 30, 2015, no pet.) (mem. op., not designated

for publication).

       Further, to the extent that Ybarra raised the issue in his post-sentencing motion,

the argument was untimely and does not satisfy the preservation requirements of Rule


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33.1. 1 See TEX. R. APP. P. 33.1; Burt v. State, 396 S.W.3d 574, 577 n.4 (Tex. Crim. App.

2013) (“[A]n appellant may raise a sentencing issue in a motion for new trial for the first

time only if the appellant did not a have the opportunity to object in the punishment

hearing.” (quoting Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999))); see

also Gallegos-Perez v. State, No. 05-16-00015-CR, 2016 WL 6519113, at *2 (Tex. App.—

Dallas Nov. 1, 2016, no pet.) (mem. op., not designated for publication) (“[T]o complain

on appeal of the denial of a right to allocution, whether statutory or one claimed under the

common law, a defendant must timely object.”).

        We also reject Ybarra’s alternative argument that the sentencing court erred in

considering the allegation in the PSI report that Ybarra claimed to have some sort of

influence over the trial court. A trial court may consider the information contained within

the PSI report regardless of whether the information would otherwise violate rules

concerning hearsay, admissibility of expert opinion, or Confrontation Clause objections.

See Stringer v. State, 309 S.W.3d 42, 46–48 (Tex. Crim. App. 2010). However, it must

allow a defendant or the defendant’s attorney to “comment” on a PSI report, and the court

may allow a defendant to introduce testimony or other information alleging a factual

inaccuracy in the report. See TEX. CODE CRIM. PROC. ANN. art. 42A.255(b); Stringer, 309

S.W.3d at 42. Here, Ybarra’s counsel was given the opportunity to thoroughly argue that

the complained-of allegation was factually inaccurate. Under such circumstances, we

conclude that the trial court did not err in considering the allegation in its punishment

assessment. We overrule Ybarra’s third issue.


        1Because Ybarra failed to preserve error concerning allocution, we deny his request to reform the
judgment by deleting the reference to Ybarra having been afforded allocution.
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                                   V.     CONCLUSION

       We affirm the trial court’s judgment.

                                                       LETICIA HINOJOSA
                                                       Justice

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

Delivered and filed the
15th day of August, 2019.




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