AFFIRM; and Opinion Filed June 18, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00326-CR

                               LARRY BERRING, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 2
                                   Dallas County, Texas
                            Trial Court Cause No. F-1255634-I

                                          OPINION
                         Before Justices FitzGerald, Fillmore, and Evans
                                  Opinion by Justice Fillmore

       A jury convicted Larry Berring of possession, with intent to deliver, of four grams or

more, but less than 200 grams, of cocaine. The trial court found two enhancement paragraphs

alleged in the indictment to be true and assessed punishment of thirty years’ imprisonment. In

three issues, Berring asserts the trial court erred by denying his motion to suppress, excluding

from evidence medical records that were relevant to his defense, and failing to afford him the

right of allocution. We affirm the trial court’s judgment.

                                           Background

       Senior Corporal Jeffrey Grandy, who was a member of the Dallas Police Department’s

Southeast Division Crime Response Team (CRT) in May of 2012, testified the Grand Shopping

Center is in a high crime area and is known for “open air drug sales.” Further, in 2012, the area

surrounding the shopping center had experienced a spike in robberies and burglaries. On May
11, 2012, Grandy drove by the shopping center and noticed a number of people “hanging out and

loitering” in the parking lot.

           At approximately 10:00 p.m., the CRT, which consisted of eight officers, went to the

shopping center to investigate possible criminal trespass violations. The CRT approached the

shopping center from more than one direction in multiple marked police cars. When Grandy and

his partner arrived at the shopping center, he saw a small crowd of people in the parking lot in

front of the Grand Liquor Store, one of the stores in the shopping center. 1 The Grand Liquor

Store was closed when the CRT arrived at the shopping center. Grandy, however, agreed the

Grand City Grocery, another store in the shopping center, was open.

           According to Grandy, a representative of the Grand Liquor Store had completed a

criminal trespass affidavit (CTA) and provided the CTA to the police department. The CTA

admitted into evidence stated the Dallas Police Department was authorized, in the absence of the

owner or manager of the property, “to enforce the criminal trespass statute, Section 30.05 of the

Texas Penal Code.” A police officer was authorized by the CTA to notify a person who was not

authorized to be on the property “that his entry is forbidden and to leave the property

immediately or face possible arrest pursuant to the criminal trespass statute.” Grandy testified

there was not a “no trespassing” signed posted at the liquor store, but a sign posted over the door

of the liquor store stated, “No drinking. No loitering. No standing on premises” and warned that

police were watching.

           According to Grandy, a CTA allows a police officer to act for the business owner if an

individual is not a customer of the business and is “loitering or hanging out” on the premises.

When a location has a CTA on file with the police department, the CRT will briefly detain

people at the location to identify each person. A member of the CRT will then check a database

    1
        Other members of the CRT were investigating groups of people in other areas of the shopping center.



                                                                     –2–
to see if a person has previously been given a criminal trespass warning for the location. If a

person has been previously warned, that person will be arrested for criminal trespass. If a person

has not previously received a criminal trespass warning for the location, the police officer will

give the person a criminal trespass warning, but not make an arrest, and add the person to the

database for that location. Grandy did not recall who was listed in the database as having already

been warned based on the CTA for the Grand Liquor Store, but did not believe that Berring had

previously received a criminal trespass warning for the location.

       Grandy testified that, as he approached the crowd in the parking lot in front of the liquor

store to “investigate possible criminal trespassing,” people began “scattering a little bit.”

Berring, who was in the crowd, started walking around the east side of the shopping center. As

Berring walked away, he continually looked over his shoulder at Grandy. Grandy gave a “loud

verbal command” for Berring to stop. Instead of stopping, Berring began running away from

Grandy. Berring choosing to run raised Grandy’s suspicion because “innocent people usually

don’t run from the police.”

       Berring slipped in a mud puddle in the parking lot of the Manhattan Club, a nightclub

located behind the shopping center. While Berring was on the ground, Officer Jesse Rodriguez

got on Berring’s back. Grandy, Rodriguez, and Officer David Roach testified that Berring

resisted arrest and it ultimately required four officers to restrain him. Grandy testified that,

during the altercation, Berring removed a bag from his pocket. The bag contained eighty-two

individually wrapped “rocks” of crack cocaine.

       Berring was charged with possession, with intent to deliver, of four grams or more, but

less than 200 grams, of cocaine. Berring filed a motion to suppress “all evidence obtained in this

case as a result of an illegal stop and arrest.” The trial court denied the motion to suppress.




                                                –3–
        The jury found Berring guilty of possession, with intent to deliver, of four grams or more,

but less than 200 grams, of cocaine. Berring submitted the issue of punishment to the trial court.

The trial court found two enhancement paragraphs alleged in the indictment to be true and

assessed punishment of thirty years’ imprisonment.

                                       Motion to Suppress

        In his first issue, Berring argues the trial court erred by denying his motion to suppress

because Grandy did not have reasonable suspicion to detain him and, therefore, the ensuing

arrest was illegal.

                                       Standard of Review

        We review a trial court’s ruling on a motion to suppress evidence under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We

review the trial court’s factual findings for an abuse of discretion, but review the trial court’s

application of the law to the facts de novo. Id. We give almost total deference to the trial court’s

determination of historical facts, particularly when the trial court’s fact findings are based on an

evaluation of credibility and demeanor. Id.; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.

App. 2010). We give the same deference to the trial court’s conclusions with respect to mixed

questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367,

372 (Tex. Crim. App. 2012) (citing Guzman v. State, 955 S.W.2d 85, 87–89 (Tex. Crim. App.

1997)). We review mixed questions of law and fact that do not turn on credibility and demeanor

as well as purely legal questions de novo. State v. Woodward, 341 S.W.3d 404, 410 (Tex. Crim.

App. 2011); Guzman, 955 S.W.2d at 89.

        In conducting our review, we generally consider only evidence adduced at the

suppression hearing. Turrubiate, 399 S.W.3d at 150–51; Gutierrez v. State, 221 S.W.3d 680,

687 (Tex. Crim. App. 2007).        However, when, as in this case, the parties relitigate the

                                                –4–
suppression issue during the trial on the merits, we consider all evidence, from both the pretrial

hearing and the trial, in our review of the trial court’s ruling. Turrubiate, 399 S.W.3d at 151;

Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). We view the evidence in the light

most favorable to the trial court’s ruling and afford the prevailing party the strongest legitimate

view of the evidence and all reasonable inferences that may be drawn from that evidence. Wade

v. State, 422 S.W.3d 661, 666–67 (Tex. Crim. App. 2013). We will uphold the trial court’s

ruling if it is reasonably supported by the record and is correct on any theory of law applicable to

the case. Id. at 667. When, as in this case, the trial court does not make explicit findings of fact,

we infer the necessary factual findings that support the trial court’s ruling if the record evidence

(viewed in the light most favorable to the ruling) supports these implied findings. State v.

Garica-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).

                                          Applicable Law

        The Fourth Amendment of the United States Constitution protects citizens from

unreasonable searches and seizures by government officials. U.S. CONST. amend. IV. An

investigative detention is a Fourth Amendment seizure and implicates Fourth Amendment

protections. Johnson v. State, 414 S.W.3d 184, 191 (Tex. Crim. App. 2013); Woodard, 341

S.W.3d at 411.

       To detain an individual for investigative purposes, the officer, based on his experience,

must have a reasonable suspicion based on specific, articulable facts that, when combined with

rational inferences from those facts, would lead him to conclude that an individual is, has been,

or soon will be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21–22 (1968); Wade,

422 S.W.3d at 668. The officer must be able to articulate something more than an “inchoate and

unparticularized suspicion or ‘hunch.’” Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App.

2010) (quoting Terry, 392 U.S. at 22). Rather, “the articulable facts must show ‘that some

                                                –5–
activity out of the ordinary has occurred, some suggestion to connect the detainee to the unusual

activity, and some indication that the unusual activity is related to crime.’” Derichsweiler v.

State, 348 S.W.3d 906, 916 (Tex. Crim. App. 2011) (quoting Meeks v. State, 653 S.W.2d 6, 12

(Tex. Crim. App. 1983)).

       Reasonable suspicion is determined by considering whether the officer had “some

minimal level of objective justification for making the stop.” Foster, 326 S.W.3d at 613. In

making a reasonable suspicion determination, we disregard the subjective intent of the officer

making the stop and consider solely, under the totality of the circumstances, whether there was

an objective basis for the stop. Wade, 422 S.W.3d at 668. Although some circumstances may

seem innocent in isolation, they will support an investigatory detention if their combination leads

to a reasonable conclusion that criminal activity is afoot. Id.; Derichsweiler, 348 S.W.3d at 914.

       In determining what constitutes reasonable suspicion, we look only at those facts known

to the officer and cooperating officers at the inception of the detention. State v. Duran, 396

S.W.3d 563, 568-69 (Tex. Crim. App. 2013); State v. Castleberry, 332 S.W.3d 460, 467 (Tex.

Crim. App. 2011) (“Whether the State has met its burden must be determined by considering the

specific facts known to the officer at the moment of detention.”); see also Derichsweiler, 348

S.W.3d at 914 (objective standard includes facts known to cooperating officers for purposes of

making determination of reasonable suspicion; detaining officer need not be personally aware of

all facts known to cooperating officers). If the facts that the officer knows “at the inception of

the detention” support a finding of reasonable suspicion to support the detention, then “it is

irrelevant” that the officer subjectively decided to detain the defendant “for a bad reason.”

Duran, 396 S.W.3d at 570.




                                               –6–
                                            Analysis

       In determining whether the specific, articulable facts testified to by Grandy constituted

reasonable suspicion to detain Berring, we must first determine when the detention occurred. A

seizure does not occur until a person has been either physically forced to yield or has yielded to

an officer’s show of authority. Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting Terry, 392

U.S. at 19 n.16); Wade, 422 S.W.3d at 668. The crucial test is whether, taking into account all of

the circumstances, the police conduct would have communicated to a reasonable person that he

was not at liberty to ignore the police presence and go about his or her business. Bostick, 501

U.S. at 439; Castleberry, 332 S.W.3d at 467.

       Here, as Berring walked away, Grandy gave a loud, verbal command for him to stop.

This show of authority would have communicated to a reasonable person that he was not free to

leave. Johnson v. State, 864 S.W.2d 708, 723 (Tex. App.—Dallas 1993) (en banc), aff’d, 912

S.W.2d 227 (Tex. Crim. App. 1995). However, Berring did not yield to Grandy’s show of

authority; rather, he began to run from Grandy. Berring was not detained until he fell in the

adjacent parking lot and Rodriguez, followed by other officers, physically restrained him. See

California v. Hodari D., 499 U.S. 621, 626 (1991) (There is no seizure when a police officer

yells “Stop” at a fleeing form that continues to flee.); Johnson, 864 S.W.2d at 724 (defendant

who ran from police officer not seized until he complied with officers’ orders to stop).

Accordingly, in determining whether Grandy had reasonable suspicion to detain Berring, we

consider all facts known to Grandy prior to Berring being detained in the adjacent parking lot.

See Duran, 396 S.W.3d at 569; Castleberry, 332 S.W.3d at 467; see also United States v.

Franklin, 323 F.3d 1298, 1301 (11th Cir. 2003) (“Because Franklin was seized when he was

tackled, the officers can consider everything that happened up to that point to establish

reasonable suspicion.”).

                                               –7–
           Grandy observed a crowd of people standing, after dark, in front of the closed liquor

store. See Foster, 326 S.W.3d at 613 (time of day is relevant factor in determining whether

officer had reasonable suspicion to detain defendant). The store was located in a high crime area

and was known as a location for “open air drug sales.” See Crain v. State, 315 S.W.3d 43, 53

(Tex. Crim. App. 2010) (although not suspicious standing alone, criminal activity in area is

factor to be considered in determining whether officer had reasonable suspicion to detain

defendant). Further, the CRT had been charged with investigating a spike of burglaries and

robberies in the area. See id. The liquor store had posted a “no loitering” sign and had

completed a CTA authorizing the CRT to investigate possible criminal trespassing on the

property. 2 Grandy intended to investigate whether any person in the crowd was engaged in

criminal trespass by identifying each person in the crowd and determining whether that person

had received a prior criminal trespass warning. Grandy’s intention was reasonable in order to

“maintain the status quo momentarily to obtain more information” concerning possible criminal

activity. See State v. Kerwick, 393 S.W.3d 270, 276 (Tex. Crim. App. 2013) (quoting Adams v.

Williams, 407 U.S. 143, 146 (1972)). As Grandy approached the crowd, Berring began walking

away, looking constantly over his shoulder at Grandy. See Balentine v. State, 71 S.W.3d 763,

769 (Tex. Crim. App. 2002) (defendant appearing nervous and “walking briskly away” from

direction of reported criminal activity “while constantly looking back over his shoulder” in

police officer’s direction was factor to be considered in reasonable suspicion analysis). When

Grandy ordered Berring to stop, Berring began to run away. See Illinois v. Wardlow, 528 U.S.


     2
       The record does not provide us a sufficient basis for determining how, or if, the CTA affects the reasonable suspicion analysis. Grandy
did not testify about the specific warning that was given to any person found loitering on the premises of the Grand Liquor Store. Accordingly,
we are unable to determine whether that warning constituted sufficient notice under the criminal trespass statute to support a reasonable suspicion
that any person loitering at the Grand Liquor Store could be guilty of criminal trespass. See TEX. PENAL CODE ANN. § 30.05(a) (West Supp.
2013). We also need not address whether the sign posted at the Grand Liquor Store constituted a sufficient warning for purposes of the criminal
trespass statute, see TEX. PENAL CODE ANN. § 30.05(a), but note that Berring admitted during oral argument that had the sign stated “No
Trespassing,” Grandy would have reasonable suspicion based on the totality of the circumstances to detain Berring at the point in time when
Grandy exited his vehicle and approached the group of men standing in front of the liquor store.



                                                                      –8–
119, 124 (2000) (defendant’s unprovoked flight from officers in an area of heavy narcotics

trafficking supported reasonable suspicion that defendant was involved in criminal activity and

justified stop); Matthews v. State, No. PD-1341-13, 2014 WL 2589830, at *5 (Tex. Crim. App.

June 11, 2014) (noting that defendant’s flight increased officer’s suspicion that defendant was

engaged in illegal activity); Kerwick, 393 S.W.3d at 276 (“‘[Flight] is not necessarily indicative

of wrongdoing, but it is certainly suggestive of such’ and may be considered among the totality

of the circumstances in a reasonable-suspicion analysis.” (quoting Wardlow, 528 U.S. at 125)).

       Viewing the entire record in the light most favorable to the trial court’s ruling, we

conclude Grandy testified to specific, articulable facts that, when combined with reasonable

inferences from those facts, would lead him to conclude that Berring was, had been, or soon

would be engaged in criminal activity. Accordingly, the trial court did not err by denying

Berring’s motion to suppress. We resolve Berring’s first issue against him.

                                Admission of Medical Records

       In his second issue, Berring contends the trial court erred by excluding medical records

that were relevant to his defense. We review the trial court’s admission of evidence under an

abuse of discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). As

long as the trial court’s ruling is within the “zone of reasonable disagreement,” there is no abuse

of discretion. Id.

       Prior to trial, the prosecutor made an oral motion in limine, seeking to exclude any

reference to injuries suffered by Berring during the altercation leading to his arrest or to

Berring’s medical records relating to the treatment of the injuries because the evidence was not

relevant to any issue in the case. Berring argued the medical records were relevant to prove his

identity and to support the defensive theory that the extent of his injuries made it impossible or

impractical for him to have reached into his pocket and removed the bag containing crack

                                               –9–
cocaine.   The trial court granted the motion in limine and instructed Berring’s counsel to

approach the bench prior to asking questions about the medical records.

       During the State’s case-in-chief, Grandy testified Rodriguez was the first officer to

overtake Berring. Grandy saw Berring trying to “buck” Rodriguez “off him.” At that time,

Grandy did not see any blood on Berring or that Berring had any missing teeth. However,

Grandy was focused on officer safety and was not looking for blood or abrasions “in that split

second.” Grandy testified that he grabbed Berring’s right arm and tried to take him to the ground

with an “arm bar,” but Berring continued to struggle. Roach and another officer arrived and

helped Grandy and Rodriguez take Berring to the ground. Although Grandy denied that he

punched Berring, he admitted that Berring was punched and kicked in the course of the struggle

and that he kicked Berring in his right side. According to Grandy, Berring kept trying to reach

into his right pocket. Grandy thought Berring might have a weapon and yelled that Berring was

“reaching.” Berring eventually pulled the bag that contained the crack cocaine out of his pocket.

When the officers picked up Berring from the mud puddle, Grandy saw that Berring was

bleeding from his mouth, and Berring said that he had lost some teeth. After Berring was

booked into jail, he was seen by a nurse. The nurse instructed that Berring be taken to the

hospital because his injuries were severe.

       After Grandy testified, Berring’s counsel requested a hearing on the issue of whether she

could “go into” the injuries Berring sustained. The trial court first noted that Grandy had already

testified, without an objection from the State, about Berring’s “physical appearance or physical

condition” at the time of the arrest. Berring’s counsel argued the “injuries are the crux of our

defense” and that it was their “theory that because Mr. Berring was injured, he could not have

been able to reach into his pocket and pull out the drugs from his front pants pocket.” Berring’s

counsel further argued that if she could not “cross examine the other officers on the injury, then

                                              –10–
[the jury is] going to think I’m hiding something.” After a recess, the trial court “sustain[ed] the

State’s objection in the motion in limine about going into the extent of the defendant’s injuries as

a result of the altercation with the police, takedown, arrest” because it was not relevant to

Berring’s guilt or innocence.

       As pertinent to this issue, Rodriguez testified that, after Berring fell “face first” into the

puddle, he got on Berring’s back. Berring tried to throw Rodriguez off. Rodriguez then “came

down with a closed fist” and struck Berring with both his right and left hands. Rodriguez was

attempting a “brachial stun,” but due to Berring’s movements, “it was ineffective.” Other

officers arrived to help, and they eventually subdued Berring. Grandy alerted the other officers

that Berring was reaching for his pocket. Rodriguez did not know whether Berring was armed.

       Berring called Clifford Hamilton to testify for the defense. As relevant to this issue,

Hamilton testified that he was sitting in his car watching the parking lot at the Manhattan Club

on May 11, 2012 when he saw Berring run through the lot. Hamilton saw Berring fall face down

in the parking lot. Two officers fell on top of Berring. The two officers put their knees on

Berring’s back.    Another officer arrived and began kicking Berring in the head and face.

Hamilton did not see Berring fight back against the officers.

       During the State’s rebuttal, Roach testified that he was assigned to the CRT and was a

member of the team that went to the Grand Shopping Center on May 11, 2012. As relevant to

this issue, Roach testified he saw Grandy and Rodriguez engaged in an altercation with Berring.

Roach took his baton and “attempted to deliver three or four strikes to [Berring’s] leg to help

take him to the ground.”        Although the strikes were “ineffective,” Grandy and Rodriguez

eventually took Berring to the ground. Berring continued to struggle, and Roach knelt on

Berring’s upper left shoulder. Roach felt “movements” that could have been strikes to Berring’s

body. Grandy began yelling that Berring was “reaching.” Concerned that Berring had a weapon,

                                               –11–
Roach pulled out his gun to provide cover for the officers and pointed the gun at Berring. Roach

did not see anyone kick Berring in the head and believed he would have known if somebody had

kicked Berring in the head.

           After the State completed its rebuttal, Berring requested to be allowed to introduce the

medical records to rebut Roach’s testimony that he did not see anybody kick Berring in the head.

Berring offered the medical records “simply to confirm that he did, in fact have injuries to his

face and nothing – nothing more, nothing less.” The trial court sustained the State’s objection to

the request because “any value that might be flowed from those records would outweigh rebuttal

possibility.”

           We conclude that, even if the trial court erred by refusing to admit Berring’s medical

records, Berring suffered no harm. Generally, errors resulting from admission or exclusion of

evidence are nonconstitutional. Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007). 3

Accordingly, we must disregard any error that did not affect Berring’s substantial rights. TEX. R.

APP. P. 44.2(b). Substantial rights are not affected if, based on the record as a whole, we have a

fair assurance that the erroneous exclusion of evidence either had no influence or only a slight

influence on the jury. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). In making

our assessment, we consider everything in the record, including any evidence admitted for the

jury’s consideration, the nature of the evidence supporting the verdict, and the character of the

alleged error and how it relates to evidence in the record. Id. We may also consider the jury


           3
               If the precluded evidence forms a vital portion of the defendant’s case, the error may be of constitutional magnitude. Walters, 247
S.W.3d at 219; Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). As relevant to this appeal, the exclusion of evidence might rise to
the level of a constitutional violation if a clearly erroneous ruling by the trial court results in the exclusion of admissible evidence that forms the
vital core of a defendant’s theory of defense and effectively prevents him from presenting that defense. Walters, 247 S.W.3d at 219. Although
Berring argues on appeal that the medical records “would have provided vital support” for his defensive theory that his injuries made it
impossible for him to reach into his pocket and that this “was a core issue for the jury in determining guilt,” he does not argue that he was
prevented from presenting his defensive theory and does not employ a constitutional harm analysis. We conclude that the exclusion of the
medical records did not prevent Berring from presenting his defensive theory through the testimony of other witnesses. See id. at 221–22 (any
error in exclusion of evidence was nonconstitutional because defendant was able to present his defense through other testimony). Accordingly,
we apply the harm analysis for nonconsitutional error.




                                                                       –12–
instructions, the State’s theory and any defensive theories, closing arguments, and voir dire, if

applicable. Id.

       In his brief, Berring does not point to any specific information in the medical records that

he claims would have impacted the jury’s decision. Our review of the records shows that

Berring arrived at the hospital at 12:47 a.m. complaining of dental pain, rib pain, and knee

abrasions. Berring told emergency room personnel that he “blacked out” during the altercation,

but the police indicated they did not witness any loss of consciousness. The emergency room

personnel noted that Berring had multiple teeth missing and a minor amount of bleeding. Both

of Berring’s knees had abrasions, but he had no obvious facial trauma. An x-ray of Berring’s

ribs showed no fractures. Berring was discharged at 4:46 a.m.

       The jury heard three police officers and Hamilton testify about the altercation that

occurred while the officers were trying to arrest Berring. The officers admitted that Berring was

held down, placed in an arm bar, punched, kicked, and hit with a baton. Hamilton testified that

he saw two police officers holding Berring down and another officer kicking Berring in the face

and head. Roach admitted that he held a gun on Berring. Grandy testified that, after the

altercation, Berring’s face was bloody and Berring stated that he had lost some teeth. Grandy

further testified that, after Berring was booked into jail, the nurse instructed that Berring should

be taken to the hospital due to the severity of his injuries. Berring’s attorney argued during

closing arguments that it was unbelievable that “Berring was on the ground and able to still fight

with a gun in his head and reach into his front right pants pocket and grab out these drugs.” She

further argued that, due to the intensity of the altercation and the trauma inflicted on Berring, it

was “almost a physical impossibility” that he reached into his pocket and pulled out the drugs.

Berring clearly presented the jury with his defensive theory that he could not have had the drugs

in his pocket.

                                               –13–
          After reviewing the record as a whole, we are reasonably assured that the exclusion of the

medical records did not influence, or had only a slight effect on, the jury’s verdict. Accordingly,

Berring was not harmed by the exclusion of the medical records. We resolve Berring’s second

issue against him.

                                                      Right to Allocution

          In his third issue, Berring asserts the trial court erred by failing to afford him the right of

allocution provided for by article 42.07 of the code of criminal procedure. See TEX. CODE CRIM.

PROC. ANN. art. 42.07 (West 2006) (“Before pronouncing sentence, the defendant shall be asked

whether he has anything to say why the sentence should not be pronounced against him.”).

Texas Rule of Appellate Procedure 33.1(a) requires a complaining party to make a timely,

specific objection to preserve error for appellate review. TEX. R. APP. P. 33.1(a). Here, Berring

failed to object in the trial court that he was denied his right to allocution. Therefore, he failed to

preserve error for our review. See id.; Tenon v. State, 563 S.W.2d 622, 623–24 (Tex. Crim. App.

[Panel Op.] 1978); Jarvis v. State, 353 S.W.3d 253, 254–55 (Tex. App.—Fort Worth 2011, pet.

ref’d). 4 We resolve Berring’s third issue against him.

                     We affirm the trial court’s judgment.




                                                                       /Robert M. Fillmore/
                                                                       ROBERT M. FILLMORE
                                                                       JUSTICE

Do Not Publish
TEX. R. APP. P. 47

130326F.U05

     4
       See also Wilson v. State, No. 05-12-00831-CR, 2013 WL 4399193, at *7 (Tex. App.—Dallas Aug. 15, 2013, no pet.) (not designated for
publication).



                                                                –14–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

LARRY BERRING, Appellant                               On Appeal from the Criminal District Court
                                                       No. 2, Dallas County, Texas,
No. 05-13-00326-CR         V.                          Trial Court Cause No. F-1255634-I.
                                                       Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                           Justices FitzGerald and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 18th day of June, 2014.




                                                   /Robert M. Fillmore/
                                                   ROBERT M. FILLMORE
                                                   JUSTICE




                                                –15–
