              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                           NO. PD-1057-13



                         MICHAEL ANTHONY GRADO, Appellant

                                                 v.

                                     THE STATE OF TEXAS

               ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE SEVENTH COURT OF APPEALS
                              OLDHAM COUNTY

                 K ELLER, P.J., filed a dissenting opinion.

        I would hold that appellant forfeited his complaint about punishment by failing to object at

trial. I therefore respectfully dissent.

        “All but the most fundamental rights are thought to be forfeited if not insisted upon by the

party to whom they belong.”1 It is true that we have said that a defendant’s “right” to be sentenced

to a term within the defined “universe of punishments applicable to the offense” is absolute and




        1
            Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993).
                                                                              GRADO DISSENT - 2

nonwaiveable.2 But that is the rule for a sentence that falls outside the applicable statutory range.

Appellant’s punishment was within the “universe of punishments” applicable to his offense; it was

neither “illegal” nor “void.”

        In Hull v. State,3 we addressed whether a defendant could complain for the first time on

appeal that a judge failed to consider the full range of punishment. We cited to Texas Rule of

Appellate Procedure 33.1 for the familiar precept that “as a prerequisite to presenting a complaint

for appellate review,” a timely request, objection or motion must be made and ruled upon by the trial

court.4 This rule, we said, ensures that trial courts are provided an opportunity to correct their own

mistakes at the most convenient and appropriate time—when the mistakes are alleged to have been

made.5 In Hull, the defendant’s complaint was that the trial judge had a “zero tolerance” policy and,

upon revoking Hull’s probation, he had sentenced Hull to the maximum possible punishment.6 We

held that by failing to object, Hull had failed to preserve his claim.7

        In Ex parte Brown, the issue was the same as in Hull, but it was raised in a post-conviction

writ application instead of on direct appeal.8 In that case, this Court held that Brown, who, like Hull,

had not objected at trial, could raise the issue for the first time on habeas. In explaining why Brown



        2
            Speth v. State, 6 S.W.3d 530, 536, n.5 (Tex. Crim. App. 1999).
       3
            Hull v. State, 67 S.W.3d 215 (Tex. Crim. App. 2002).
        4
            Id. at 217.
        5
            Id.
        6
            Id. at 216.
        7
            Id. at 218.
        8
            Ex parte Brown, 158 S.W.3d 449 (Tex. Crim. App. 2005).
                                                                            GRADO DISSENT - 3

had not forfeited his claim, the Court referred to the fact that the trial record was “insufficient to

allow an appellate court to resolve the issue.”9 The Court said that Brown could raise his claim for

the first time on habeas because he needed to go outside the record to provide evidence to prove his

claim.10 One of the three dissenting opinions noted “the odd loophole in the law” that the opinion

created by requiring an objection to raise the claim on direct appeal but not on habeas.11

Nevertheless, the distinction was drawn: an unobjected-to claim that a trial judge failed to consider

the full range of punishment may not be raised on direct appeal but it may (at least sometimes) be

raised post-conviction by application for a writ of habeas corpus.

       In this case, the Court says, “The unfettered right to be sentenced by a sentencing judge who

properly considers the entire range of punishment is a substantive right necessary to effectuate the

proper functioning of our criminal justice system.” I think this statement is inconsistent with our

holding in Hull. The judge failed to consider the entire range of punishment in Hull, and we said

that Hull forfeited his complaint by failing to object.

       Citing to Speth, the Court says that Hull is of limited value because it involved preservation

of error requirements as they relate to conditions of probation. But there was no mention of Speth

in Hull. The “zero tolerance” policy in Hull was not a condition of probation. We called the policy

“the standard by which the written conditions would be administered by the court and violations

viewed,” but to the extent that that standard might be viewed as part of the “contractual




       9
            Id. at 453.
       10
            Id.
       11
            Id. at 460 (Keasler, J., dissenting).
                                                                              GRADO DISSENT - 4

relationship,” we also said, “There was plenty to object to at the sentencing hearing.”12 Although

we discussed the fact that there was no objection at any time, we pointed out that “Appellant’s

testimony at the revocation hearing indicated an understanding and acceptance of the trial court’s

stated ‘zero tolerance’ policy.”13 Regardless of whether Hull was contractually bound at the time

probation was imposed, he was under no such impediment at the time of revocation, and his failure

to object resulted in forfeiture of the claim.

        The Court also says it will not extend Hull to the present case because at the time that Hull

was decided, it was unclear to what extent a Marin analysis was necessary. The Court believes that

our more recent opinion in Gutierrez v. State,14 in which we held that Speth’s broad forfeiture rule

does not apply when the contested probation condition violates a category-one Marin right, limits

the value of Hull. But we are not dealing with a category-one Marin right in this case. The Court

holds that the right in question—“the right to be sentenced after consideration of the entire applicable

punishment range”— is a category-two Marin right. A category-one Marin right is one that the

parties cannot agree to waive. By definition, then, Speth’s forfeiture rule would not apply to a

category-one right.15 I do not see how Gutierrez has any bearing on appellant’s failure to object in

this case.       It is worth remembering what rights Marin itself denominated as category-two rights.

They were assistance of counsel and the right to a jury trial, both of which are guaranteed by the



        12
             Hull, 67 S.W.3d at 217.
        13
             Id. at 218 (emphasis added).
        14
             380 S.W.3d 167, 175 (Tex. Crim. App. 2012).
        15
         Even a category-one right is subject to estoppel, however. See Saldano v. State, 70
S.W.3d 873, 888 (Tex. Crim. App. 2002).
                                                                              GRADO DISSENT - 5
Sixth Amendment.16 In my view, the right to consideration of the full range of punishment is not

of the same nature or status as these two rights. I simply do not see the justification for affording

category-two status to the error in this case.

        Finally, defense counsel made a mistake. If appellant is entitled to relief, he has a remedy

by way of an ineffective assistance of counsel claim. For these reasons, I respectfully dissent.

Filed: October 15, 2014
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       16
          “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been committed . . . and
to have the assistance of counsel for his defence.”
