MODIFY and AFFIRM; and Opinion Filed July 17, 2019.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-18-00522-CR

                             PATRICK D MARTIN, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 3
                                  Dallas County, Texas
                           Trial Court Cause No. F17-18397-J

                            MEMORANDUM OPINION
                          Before Justices Myers, Molberg, and Carlyle
                                  Opinion by Justice Molberg
       Patrick D. Martin was convicted of murder by a jury and was assessed punishment at

ninety-nine years’ imprisonment. Martin appeals his conviction on the grounds that he received

ineffective assistance of counsel and that the trial court violated his common law right to

allocution. In a single cross-point, the State requests that we modify the judgment to correctly

reflect the jury assessed punishment. We affirm the trial court’s judgment as modified.

                                          Background

       Following a fight between Patrick D. Martin and another inmate, detention officers

transferred Martin to Javier Leal’s cell. Martin and Leal both suffered from mental illness.

Approximately thirty minutes later, an altercation broke out between Martin and Leal. According

to two inmates housed in the surrounding cells, they heard Leal screaming, cry multiple times for
help, and banging sounds “like a coconut throwing [sic] against the wall.” When detention officers

arrived, they found Leal unconscious and lying facedown in a pool of his own blood. Martin had

blood on his fists, chest, and clothing. While three responding officers testified that Martin said

Leal had tried to rape him, in a recorded interview later taken with police, Martin admitted that

Leal never touched him. Martin explained he was afraid Leal had witnessed his previous fight and

that Leal would hurt him because Leal might have known the other inmate. According to Martin,

he felt “a rise in body heat,” saw Leal “flinch,” and then proceeded to repeatedly strike Leal in the

head with his elbow, at one point causing Leal’s head to hit the toilet. Once Leal was on the

ground, Martin kicked him several times. Leal died the next day from multiple blunt force injuries

to the head.

       Martin was indicted for murder and pled not guilty. He did not testify at trial. However,

the State played recordings of several outgoing phone calls Martin made to his family members

after Leal died. In those conversations, Martin maintained he acted in self-defense, but gave

accounts of Leal’s involvement ranging from “[Leal] was acting crazy” and “[Leal] was trying to

fight him and was swinging at him,” to Martin admitting to starting the fight.

       During final argument, Martin’s trial counsel conceded the self-defense claim:

       “[The prosecutor] is right. Self-defense is in the Charge because it was raised, but
       the facts probably don’t support a self-defense. I concede that. But this is not a
       murder case either.”

Trial counsel continued:

       “I’ll concede with [the prosecution]. You probably can bypass self-defense,
       because at some point the fight should have stopped. I’m not trying to mislead you.
       But the facts in this case do not rise to murder.”

Martin did not object to any of his trial counsel’s statements and the record does not indicate

whether this was an agreed trial strategy or a tactic pursued against Martin’s wishes.




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       During the punishment phase, the State called Jason Ross, who Martin was previously

convicted of assaulting, and the responding DART police officer. The officer testified that Martin

told him that Ross had “swung at him.” Video surveillance showed Jason Ross sitting on a bench

when Martin charged Ross and struck him in the back of the head.

       The jury found Martin guilty and sentenced him to ninety-nine years’ imprisonment.

                               Ineffective Assistance of Counsel

       In his first issue, Martin contends he was denied his constitutional right to effective

assistance of counsel because he never “affirmatively consented” to his trial counsel conceding his

self-defense claim.

       The Sixth Amendment guarantees a defendant in a criminal case the right to effective

assistance of counsel. U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 684-86

(1984). Ordinarily, an appellant claiming ineffective assistance of counsel must show that trial

counsel’s representation fell below an objective standard of reasonableness under prevailing

professional norms and that the alleged deficiency prejudiced the defense. Strickland, 466 U.S. at

688, 692; Hernandez v. State, 726 S.W.2d 53, 54-57 (Tex. Crim. App. 1986). However, the

Supreme Court has specifically indicated that ineffective assistance of counsel does not apply if

the structural error implicates a client’s autonomy rather than counsel’s competence. See

McCoy v. Louisiana, ---U.S.----, 138 S. Ct. 1500, 1510-11. (2018). Rather, an accused’s Sixth

Amendment right to present a defense ensures certain decisions grounded in a defendant’s

autonomy “are reserved for the client—notably, whether to plead guilty, waive the right to a jury

trial, testify in one’s own behalf, and forgo an appeal.” McCoy, 138 S. Ct. at 1508. Accordingly,

the Sixth Amendment guarantees that a defendant “has the right to insist that counsel refrain from

admitting guilt, even when counsel’s experienced-based view is that confessing guilt” is in the

defendant’s best interest. Id. at 1506. If defense counsel overrides his client’s autonomy in such

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a decision, structural error results and requires a new trial. Turner v. State, 570 S.W.3d 250, 275

(Tex. Crim. App. 2018).

       Martin’s reliance on McCoy is inapplicable to the facts of his case. In McCoy, the Supreme

Court concluded an attorney violated his client’s Sixth Amendment rights when the defendant

“vociferously insisted on his innocence” during trial and protested to the court his objections to

his trial counsel’s strategy of admitting guilt in hope of receiving a lesser-included charge. Id. at

1503-04.     Assuming without deciding that relinquishing Martin’s self-defense claim was

equivalent to pleading guilty, unlike in McCoy, Martin made no indication of his “intransigent and

unambiguous objection” either time his counsel conceded. Id. at 1510. Further, there is no

evidence trial counsel knew Martin opposed the concession, or ever instructed counsel not to

pursue that tactic. Cf. Turner, 570 S.W.3d 276 (finding a McCoy violation when defendant failed

to object to his counsel admitting that he killed the victims during opening statements, but after

defendant testified he did not kill the victims and had wanted to object to the statement, counsel

continued the concession strategy). The record shows that Martin suffers from mental illness.

However, in the report finding Martin competent to stand trial, he was found to have “sufficient

capacity to communicate logically and coherently, process information, and make decisions

regarding his case.” CR 28. Martin has not submitted evidence from which it could be reasonably

inferred that his mental illness rendered him unable to express his will to maintain his self-defense

claim. In the absence of such a record, no basis exists under McCoy to find a constitutional

violation.

       We resolve Martin’s first issue against him.

                               Common Law Right to Allocution

       In his second issue, Martin argues the trial court violated his common law right to

allocution by only inquiring whether Martin wished to exercise his statutory right to allocution.


                                                –4–
At the conclusion of the trial, the jury found Martin guilty of murder and assessed punishment of

ninety-nine years’ imprisonment. The trial court then asked Martin’s attorney if there was any

lawful reason why Martin should not be formally sentenced. Martin’s attorney replied there was

not.

       “Allocution” refers to a trial judge’s asking a criminal defendant 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); see also Allocution, BLACK’S LAW DICTIONARY (10th ed. 2014). Article 42.07 of the code

of criminal procedure, which implements a statutory right to allocution, requires the defendant to

be asked, before sentence is pronounced, whether “he has anything to say why the sentence should

not be pronounced against him.” TEX. CODE CRIM. PROC. ANN. art. 42.07. The circumstances

where a sentence cannot be pronounced are limited to when a defendant (1) has been pardoned,

(2) is incompetent to stand trial, or (3) escapes after conviction and before sentencing and another

person is brought to sentencing who is not the defendant. Id. While Martin admits that the trial

court complied with article 42.07, he argues he also has a common law right to allocution.

       Any common law right of allocution must be preserved by making a timely and specific

objection in the trial court and obtaining a ruling. McClintick v. State, 508 S.W.2d 616, 618 (Tex.

Crim. App.1974) (op. on reh’g) (concluding appellant failed to preserve complaint trial court

violated his right to “common law allocution” by failing to object in trial court prior to imposition

of sentence); see also TEX. R. APP. P. 33.1(a)(1). The preservation requirement “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.” Hull v. State, 67 S.W.3d

215, 217 (Tex. Crim. App. 2002).




                                                –5–
        Before sentencing, Martin had the opportunity to object that the trial court had denied him

any right to allocution. Because Martin did not do so, he failed to preserve the issue for our review.

We resolve Martin’s second issue against him.

                                    Modification of Judgment

        In a single cross-point, the State contends the judgment fails to reflect that Martin pled true

to the enhancement paragraph in the indictment. The State requests that we modify the judgment

to reflect that Martin pled true.

        Texas Rule of Appellate Procedure 43.2(b) allows an appellate court to “modify the trial

court’s judgment and affirm it as modified.” TEX. R. APP. P. 43.2(b). An appellate court has the

power to modify incorrect judgments when the evidence necessary to correct a judgment appears

in the record. See Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d).

Here, the judgment incorrectly shows the plea to the first enhancement paragraph and the finding

on the first enhancement paragraph as “N/A.” The record shows that Martin pled true to the

enhancement paragraph and the trial court found the enhancement paragraph true.

        We conclude we have the necessary evidence to correct the judgment. Accordingly, we

modify the judgment to reflect (1) the plea to the first enhancement paragraph is “true,” and (2)

the findings on the first enhancement paragraph is “true.”

        As modified, we affirm the trial court’s judgment.




                                                    /Ken Molberg/
Do Not Publish                                      KEN MOLBERG
TEX. R. APP. P. 47                                  JUSTICE

180522F.U05


                                                 –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 PATRICK D MARTIN, Appellant                          On Appeal from the Criminal District Court
                                                      No. 3, Dallas County, Texas
 No. 05-18-00522-CR         V.                        Trial Court Cause No. F17-18397-J.
                                                      Opinion delivered by Justice Molberg.
 THE STATE OF TEXAS, Appellee                         Justices Myers and Carlyle participating.

        Based on the Court’s opinion of this date, we MODIFY the judgment of the trial court to
correctly reflect that Appellant pled true to the enhancement paragraph, and AFFIRM the
judgment as modified.


Judgment entered this 17th day of July, 2019.




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