                                      NUMBER 13-09-00532-CR

                                      COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG


HOWARD LEE DYKES,                                                                                 Appellant,

                                                           v.

THE STATE OF TEXAS,                                                                                 Appellee.


                        On appeal from the 24th District Court of
                               Victoria County, Texas.


                                 MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Yañez and Garza
               Memorandum Opinion by Justice Yañez

      In 2005, pursuant to a plea agreement, appellant, Howard Lee Dykes, pleaded guilty

to aggravated sexual assault, a first-degree felony,1 and was placed on deferred-

adjudication community supervision for ten years.2 In 2009, the State filed a motion to


      1
          See T EX . P EN AL C OD E A N N . § 22.021(a)(1)(B)(i), (a)(2)(B), (e) (Vernon Supp. 2009).

      2
          See T EX . C OD E C R IM . P R O C . A N N . art. 42.12, § 5(a) (Vernon Supp. 2009).
adjudicate guilt, alleging multiple violations of the terms of community supervision.

Appellant pleaded “true” to the State’s allegations. The trial court revoked appellant’s

community supervision, adjudicated him guilty, and sentenced him to forty-five years’

confinement in the Texas Department of Criminal Justice–Institutional Division. The trial

court certified appellant’s right to appeal. In a single issue, appellant contends that article

42.07 of the 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.”3 We affirm.

                                               I. Applicable Law

         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.[4]




         3
         See T EX . C OD E C R IM . P R O C . A N N . art. 42.07 (Vernon 2006). Appellant notes several tim es in his brief
that, “Defendant acknowledges that this argum ent is foreclosed under current law but raises it in an
adversarial fashion for purposes of preserving error for possible further review.”

         4
             Id.

                                                             2
                                                 II. Discussion

         Among other witnesses, appellant testified at his revocation hearing.5                                After

adjudicating appellant guilty, the trial court asked, “[i]s there any legal reason why sentence

should not be pronounced and imposed?” Appellant’s counsel responded, “No, your

Honor.”

         We note that on facts remarkably similar to those here, this Court has already

considered—and rejected—the argument appellant makes in this case. In Arguellez v.

State,6 an unpublished case, this Court held that the defendant forfeited his complaint on

appeal because he failed to make the trial court aware of his complaint 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.7

         We see no reason to depart from our prior holding. Appellant’s sole issue is

overruled. We affirm the trial court’s judgment.




Do not publish.
TEX . R. APP. P. 47.2(b).
Delivered and filed the
19th day of August, 2010.




         5
             Am ong other witnesses, the sexual assault victim , who was eight years old at the tim e of the offense,
testified.

         6
          Arguellez v. State, No. 13-09-136-CR, 2009 Tex. App. LEXIS 7832, at *6 (Tex. App.–Corpus Christi
Oct. 8, 2009, no pet.) (m em . op., not designated for publication).

         7
             See id. at **5-6.

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