                            NUMBER 13-10-00281-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


BENNY GARCIA,                                                               Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 347th District Court
                         of Nueces County, Texas.


                          MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Vela
             Memorandum Opinion by Chief Justice Valdez

      On April 7, 2008, appellant, Benny Garcia, pleaded guilty to two counts of sexual

assault of a child, a second-degree felony, and one count of indecency with a child, also

a second-degree felony. See TEX . PENAL CODE ANN . §§ 21.11, 22.011 (Vernon Supp.

2010). Garcia was placed on deferred-adjudication community supervision for ten years.

See TEX . CODE CRIM . PROC . ANN . art. 42.12, § 5(a) (Vernon Supp 2010). The State
subsequently filed a motion to adjudicate guilt, alleging multiple violations of the terms of

his community supervision. Garcia pleaded “true” to the allegations and, after hearing

testimony and closing arguments, the trial court revoked Garcia’s community supervision,

adjudicated him guilty on all three counts, and sentenced him to ten years’ imprisonment

on each count with all sentences to run concurrently. By two issues, Garcia contends that:

(1) article 42.07 of the code of criminal procedure is unconstitutional; and (2) his sentence

“violates his U[.]S[.] constitutional right to receive a sentence which is not more than

necessary to accomplish all of the objectives in the Texas Penal Code.”1 We affirm the

judgment as modified.

                                               I. ALLOCUTION 2

        By his first issue, Garcia argues that article 42.07 of the Texas Code of Criminal

Procedure “is unconstitutional in that it abridges a defendant’s constitutional Due Process

right under the United States [C]onstitution to directly address the court personally, apart

from testifying, in mitigation of his sentence.” See TEX . CODE CRIM . PROC . ANN . art. 42.07

(Vernon 2006).

A.      Relevant Background

        At the revocation hearing, Garcia pleaded “true” to all of the alleged violations of his

community supervision and testified before the trial court in an effort to provide an

“explanation” as to the circumstances surrounding two of the violations of his community

supervision. After the State’s cross-examination of Garcia, Garcia’s counsel asked the


        1
         W e note that the State has not filed a brief and that Garcia states through out his brief that his
argum ents are “foreclosed under current law but [are] raise[d] . . . in an adversarial fashion for purposes of
preserving error for possible further review.”

        2
          As this is a m em orandum opinion, and the parties are fam iliar with the facts of the case, we will only
recite those facts which are necessary to advise the parties of this Court’s decision and the basic reasons for
it. See T EX . R. A PP . P. 47.4.
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court to allow Garcia to “allocute without being subjected to cross[-]examination.” The trial

court denied the request.

B.     Applicable Law

       “‘[A]llocution’ 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). The origin of the common-law rule of allocution is unknown,

see id.; however, some form of allocution has been codified in both the federal and Texas

systems. See FED . R. CRIM . P. 32(i)(4)(A) (2010); TEX . CODE CRIM . PROC . ANN . art. 42.07.

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 identity.

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

C.     Analysis

       Garcia does not argue that any of article 42.07’s three reasons for withholding

pronouncement of sentence apply to him. Instead, Garcia contends that article 42.07 is

unconstitutional because it overly restricts a defendant’s right to due process by limiting the
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reasons that may be advanced by a defendant to prevent sentencing. See id. art.

42.07(1)-(3). Garcia reasons that: (1) allocution is a constitutional right; (2) article 42.07

is our state legislature’s implementation of the right of allocution; and (3) article 42.07’s

restriction to only three reasons as grounds to prevent sentence from being imposed

unduly restricts the constitutional right of allocution. Garcia’s argument that article 42.07

violates due process is based on the presumption that allocution before punishment is a

right of constitutional dimension. However, Garcia cites no case law that holds that

allocution is a constitutional right.

       Although allocution is statutorily recognized, the United States Supreme Court has

not determined that the United States Constitution mandates a right of allocution free from

cross-examination before punishment has been assessed. See McGautha v. California,

402 U.S. 183, 218-19 (1971) (“This Court has not directly determined whether or to what

extent the concept of due process of law requires that a criminal defendant wishing to

present evidence or argument presumably relevant to the issues involved in sentencing

should be permitted to do so.”), judgment vacated by Crampton v. Ohio, 408 U.S. 941, 42

(1972); Hill v. United States, 368 U.S. 424, 429 (1962); Eisen, 40 S.W.3d at 634. Likewise,

the Texas Court of Criminal Appeals has not interpreted the United States Constitution as

requiring such a right. Lewis v. State, 815 S.W.2d 560, 568 (Tex. Crim. App. 1991)

(providing that “[r]emorse 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”); see also Garza v. State,

No. AP-75477, 2008 WL 5049910, at *12 (Tex. Crim. App. Nov. 26, 2008) (not designated

for publication) (holding that a defendant does not “have a constitutional right to make a

statement of remorse free from cross-examination before punishment ha[s] been

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assessed”).

        In Eisen v. State, the Waco Court of Appeals addressed whether the right of

allocution is of constitutional dimension by discussing the incorporation of common-law

rules into the United States Constitution. Id. at 634-35. Eisen holds that the right of

allocution has not achieved constitutional status and explains:

               Many of the rights of an accused that we take for granted because
       they are now recognized as constitutional rights were, at common law,
       limited. The common law did not guarantee that a criminal defendant would
       have access to counsel, did not always permit a defendant to testify, did not
       provide compulsory process to obtain witnesses, and did not guarantee that
       the accused could confront his accuser. Because we now guarantee those
       rights, an accused will be heard through his counsel and will have access to
       witnesses who can aid his defense.

               At the time article 42.07 comes into play, legal matters on the record
       have already been brought to the court’s attention; factual matters relating
       to punishment have been presented through the evidence. The limitations
       of that article are designed to allow the defendant to bring to the court’s
       attention legal bars to the imposition of punishment that may not be of
       record, specifically including a pardon, incompetency, and mistaken identity.
       TEX . CODE CRIM . PROC . ANN . art. 42.07. Thus, we believe that the
       legislature’s limit to matters in bar of a sentence are reasonable and achieve
       a permissible legislative objective. See Silver v. Silver, 280 U.S. 117, 122
       (1929).

Id. at 635-36.    We agree with Eisen’s reasoning and hold that allocution is not a

constitutional right. See id.; Lewis, 815 S.W.2d at 568; see also Garza, 2008 WL 5049910,

at *12; Allen v. State, No. 11-05-00128-CR, 2006 WL 1644603, at *7 (Tex. App.–Eastland

June 15, 2006, no pet.) (not designated for publication).

       Nevertheless, assuming, arguendo, that the right to allocute is constitutional, we

would conclude that the error, if any, is harmless under Texas Rule of Appellate Procedure

44.2(a). See TEX . R. APP. P. 44.2(a). At the revocation hearing, Garcia had the right to

present evidence and argument to support a mitigation request. Garcia took advantage

of this right by testifying about the alleged reasons that he violated two of his conditions of
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community supervision. On appeal, Garcia does not indicate that he wished to inform the

trial court that he had been pardoned, was incompetent, or had been misidentified

following an escape. See TEX . CODE CRIM . PROC . ANN . art. 42.07. Garcia also fails to

indicate what additional mitigating evidence he would have raised if given the opportunity

to address the trial court free from cross-examination. Accordingly, we could not conclude

beyond a reasonable doubt that the complained-of error contributed to the punishment

assessed. See TEX . R. APP. P. 44.2(a).

       Garcia’s first issue is overruled.

                            II. CONSTITUTIONALITY OF SENTENCE

       By his second issue, Garcia contends that the sentence imposed “violates his

U[.]S[.] constitutional right to receive a sentence which is not more than necessary to

accomplish all of the objectives in the Texas Penal Code.” See TEX . PENAL CODE ANN . §

1.02 (Vernon 2003).

       “Save as limited by constitutional provisions safeguarding individual rights, a State

may choose means to protect itself and its people against criminal violation of its laws. The

comparative gravity of criminal offenses and whether their consequences are more or less

injurious are matters for its determination.” Pennsylvania v. Ashe, 302 U.S. 51, 55-56

(1937); see Crawley v. State, 513 S.W.2d 62, 66 (Tex. Crim. App. 1974) (holding that “[i]t

is within the power of the State to define as criminal conduct whatever acts it sees fit, so

long as such acts bear some reasonable relation to the needs of society and the safety and

general welfare of the public.”). The Eighth Amendment provides that “[e]xcessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual punishment

inflicted.” U.S. CONST . amend. VIII. The Eighth Amendment is applicable to punishments

imposed by state courts through the Fourteenth Amendment’s Due Process Clause. See
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U.S. CONST . amend. XIV, Robinson v. California, 370 U.S. 660, 667 (1962). The Eighth

Amendment does not require strict proportionality between the crime and the sentence;

rather, it forbids extreme sentences that are “grossly disproportionate” to the crime. Ewing

v. California, 538 U.S. 11, 21 (2003). In general, Texas courts have held that as long as

the punishment assessed falls within the statutory range, the punishment is not excessive.

See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Trevino v. State, 174

S.W.3d 925, 928 (Tex. App.–Corpus Christi 2005, pet. ref’d).

       Garcia’s sentence falls within the punishment range for second-degree felonies.

See TEX . PENAL CODE ANN . § 12.33(a) (providing that the applicable range of punishment

for a second-degree is two to twenty years’ imprisonment). Although this normally does

not end our inquiry, see Winchester v. State, 246 S.W.3d 386, 388 (Tex. App.–Amarillo

2008, pet. ref’d) (recognizing that a prohibition against a grossly disproportionate sentence

survives under the federal constitution apart from any consideration whether the

punishment assessed is within the statute’s punishment range), Garcia made no objection

to his sentence to the trial court either at the time of sentencing or in any post-trial motion.

To preserve error for appellate review, a party must present a timely objection to the trial

court, state the specific grounds for the objection, and obtain a ruling. TEX . R. APP. P.

33.1(a). By failing to specifically object in the trial court or in a post-trial motion, Garcia has

waived any error for our review. See Noland v. State, 264 S.W.3d 144, 151 (Tex.

App.–Houston [1st Dist.] 2007, pet. ref’d) (“[I]n order to preserve for appellate review a

complaint that a sentence is grossly disproportionate, constituting cruel and unusual

punishment, a defendant must present to the trial court a timely request, objection, or

motion stating the specific grounds for the ruling desired.”); Trevino, 174 S.W.3d at 927-28

(“Because the sentence imposed is within the punishment range and is not illegal, we

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conclude that the rights [appellant] asserts for the first time on appeal are not so

fundamental as to have relieved him of the necessity of a timely, specific trial objection.”).

Thus, Garcia’s second issue is overruled.

                                III. MODIFICATION OF JUDGMENT

         The trial court’s judgment mistakenly refers to section 21.22, a non-existent section

of the penal code, instead of section 21.11, as the statute concerning the offense of

indecency with a child. See TEX . PENAL CODE ANN . § 21.11 (Vernon Supp. 2010).

Because we have the necessary data and evidence for reformation, we modify the trial

court’s judgment to reflect the correct statute for the offense—Texas Penal Code section

21.11. See id.; TEX . R. APP. P. 43.2; Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App.

1993).

                                       IV. CONCLUSION

         We affirm the trial court’s judgment as modified.


                                                   ________________________
                                                   ROGELIO VALDEZ
                                                   Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
21st day of October, 2010.




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