

 
 

 



NUMBER 13-09-136-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

FELIX ARGUELLEZ, JR., 				                   	          Appellant,

v.


THE STATE OF TEXAS,						           Appellee.
 

On appeal from the 377th District Court 
of Victoria County, Texas.
 

MEMORANDUM OPINION

Before Justices Yañez, Benavides, and Vela

Memorandum Opinion by Justice Vela


	Appellant, Felix Arguellez, Jr., was indicted for possession of cocaine in an amount
of one gram or more but less than four grams, a third-degree felony.  See Tex. Health &
Safety Code Ann. § 481.115(a), (c) (Vernon 2003).  Pursuant to a plea-bargain agreement,
Arguellez pleaded guilty to the offense, and the trial court sentenced him to eight years'
imprisonment.  The trial court suspended the sentence and placed him on community
supervision for five years and fined him $2,500.
	The State subsequently filed a motion to revoke community supervision, alleging that
Arguellez violated the terms and conditions of community supervision by committing the
offense of assault causing bodily injury-family violence, (1) failing to pay required court costs,
failing to pay the $2,500 fine, and failing to complete the required hours of community-service restitution.  Arguellez pleaded "true" to all of the allegations, and after hearing
testimony and closing arguments, the trial court found the allegations to be "true" and
sentenced Arguellez to eight years' imprisonment, plus a $2,500 fine.  By one issue, (2)
Arguellez argues that article 42.07 of the Texas Code of Criminal Procedure is
unconstitutional because it abridges a defendant's Due Process right under the United
States Constitution to personally address the trial court, apart from testifying, in mitigation
of his sentence.  We affirm.
I. Discussion

	Article 42.07 of the Texas Code of Criminal Procedure provides:
		Before pronouncing sentence, the defendant shall be asked whether
he has anything to say why the sentence should not be pronounced against
him.  The only reasons which can be shown, on account of which sentence
cannot be pronounced, are:

		1. That the defendant has received a pardon from the proper authority,
on the presentation of which, legally authenticated, he shall be discharged.

		2. That the defendant is incompetent to stand trial; and if evidence be
shown to support a finding of incompetency to stand trial, no sentence shall
be pronounced, and the court shall proceed under Chapter 46B; and

		3. When a person who has been convicted escapes after conviction
and before sentence and an individual supposed to be the same has been
arrested he may before sentence is pronounced, deny that he is the person
convicted, and an issue be accordingly tried before a jury, or before the court
if a jury is waived, as to his identity.

Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon 2006).   
	Rule 33.1 of the Texas Rules of Appellate Procedure governs preservation of error,
and states, in part:
		(a) In General. As a prerequisite to presenting a complaint for appellate
review, the record must show that:

		(1) the complaint was made to the trial court by a timely request,
objection, or motion that:

		(A) stated the grounds for the ruling that the complaining party sought
from the trial court with sufficient specificity to make the trial court aware of
the complaint, unless the specific grounds were apparent from the context;

Tex. R. App. P. 33.1(a)(1)(A).
	"This Rule encompasses the concept of 'party responsibility.'"  Pena v State, 285
S.W.3d 459, 463 (Tex. Crim. App. 2009) (quoting Reyna v. State, 168 S.W.3d 173, 176
(Tex. Crim. App. 2005)).  In other words, the complaining party bears the responsibility of
clearly conveying to the trial court the particular complaint, including the precise and proper
application of the law, as well as the underlying rationale.  Id. at 463-64.  To avoid forfeiting
a complaint on appeal, the party "'must let the trial judge know what he wants, why he thinks
he is entitled to it, and to do so clearly enough for the judge to understand him at a time
when the judge is in the proper position to do something about it.'"  Id. at 464 (quoting
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).  "Whether a party's
particular complaint is preserved depends on whether the complaint on appeal comports
with the complaint made at trial.  In making this determination, we consider the context in
which the complaint was made and the parties' shared understanding at that time."  Id.
(footnote omitted.).
	At the revocation hearing, Arguellez had the right, through counsel, to present
evidence and argument to support a mitigation request.  In fact, Arguellez testified at the
revocation hearing, asking the trial court to continue him on community supervision.  When
the trial court asked defense counsel, "Is there any legal reason why sentence should not
be imposed and assessed?", defense counsel replied, "No, your Honor."  After a brief
distraction, the trial court again asked, "Any legal reason why sentence should not be
imposed?".  Defense counsel replied, "No legal reason."  The trial court then assessed
punishment.  Defense counsel did not state that any of article 42.07's three reasons for
withholding pronouncement of sentence applied to him, and he voiced no objection or
complaint with respect to the assessment of punishment or that article 42.07 violated any
right under either the United States or Texas Constitutions.  Furthermore, there are no post-judgment motions that include argument or authority challenging the constitutionality of
article 42.07.  Nothing in the record suggested that the trial court was aware of Arguellez's
argument that article 42.07 is unconstitutional because it denies a defendant a right of
allocution, i.e., the right of a defendant to make a final plea to the judge on his or her own
behalf prior to sentencing.
	In Eisen v. State, 40 S.W.3d 628 (Tex. App.-Waco 2001, pet. ref'd), the court held
that a defendant did not have a constitutional right to allocution and that the trial court's
failure to follow article 42.07 was not preserved for review when the defendant did not
contend that one of the statute's three reasons applied to him.  Id. at 636.  Thus, Arguellez
forfeited this complaint on appeal.  See Tex. R. App. P. 33.1(a)(1)(A); Pena, 285 S.W.3d at
464; see also Alexander v. State, 137 S.W.3d 127, 130-31 (Tex. App.-Houston [1st Dist.]
2004, pet. ref'd) (holding that failure to object to trial court about violations of federal and
state due process waived appellate review of those claims); Miles v. State, 688 S.W.2d 219,
227 (Tex. App.-El Paso 1985, pet. ref'd) (holding that "[a]n objection to denial of allocution
is a prerequisite to appellate complaint").
	Fundamental error may be raised for the first time on appeal.  See Tex. R. Evid.
103(d) (providing that an appellate court may take notice of fundamental errors affecting
substantial rights although the errors were not preserved at trial).  Fundamental errors are
violations of rights which are "waivable only" (3) or denials of absolute systemic
requirements (4)--both of which need not be preserved by objection.  Mendez v. State, 138
S.W.3d 334, 341 (Tex. Crim. App. 2004); Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim.
App. 1993), overruled on other grounds; Cain v. State, 947 S.W.2d 262 (Tex. Crim. App.
1997).  Thus, Arguellez was required to object unless this right is one that is either waivable
only or an absolute, systemic requirement.  Arguellez refers to no authority holding that his
complaint constitutes either a waivable-only right or an absolute, systemic requirement.
	We note that the United States Supreme Court has not found that the United States
Constitution mandates a right of allocution free from cross-examination before punishment
has been assessed.  See Hill v. United States, 368 U.S. 424, 429 (1962) (finding no
constitutional violation when trial court violated federal procedural rule mandating that court
ask defendant if he had anything to say before sentence was imposed).  Likewise, the court
of criminal appeals has not interpreted the United States Constitution as requiring such a
right.  "Remorse following commission of a serious crime may well be a circumstance
tending in some measure to mitigate the degree of a criminal's fault, but it must be
presented in a form acceptable to the law of evidence."  Lewis v. State, 815 S.W.2d 560,
568 (Tex. Crim. App. 1991).  The sole issue for review is overruled.
II. Conclusion

	We affirm the trial court's judgment.
 
 
							ROSE VELA	
							Justice


Do not publish.
Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and
filed this 8th day of October, 2009.
1. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2) (Vernon Supp. 2008).
2. In the "Trial Court's Certification of Defendant's Right of Appeal," the trial court certified that "this
criminal case:  is not a plea-bargain case, and the defendant has the right of appeal."  
3. Examples of rights that are waivable only include the rights to the assistance of counsel and to a jury
trial.  Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002).
4. Examples of absolute systemic requirements include jurisdiction of the person, jurisdiction of the
subject matter, a penal statute's being in compliance with the Separation of Powers Section of the state
constitution, a constitutional requirement that a district court must conduct its proceedings at the county seat,
the constitutional prohibition of ex post facto laws, and certain constitutional restraints on the comments of
a judge.  Id. at 888-89.
