Opinion
No. 05-19-01004-CR No. 05-19-01028-CR No. 05-19-01029-CR No. 05-19-01030-CR
08-10-2020
ZACHARIAH MATHIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4 Dallas County, Texas
Trial Court Cause Nos. F18-42189-K , F18-42190-K, F18-42191-K, & F18-42192-K
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Reichek
Opinion by Justice Myers
Appellant Zachariah Mathis pleaded guilty to two offenses of aggravated assault of a public servant with a deadly weapon, one offense of deadly conduct, and one offense of burglary of a building. The trial court sentenced appellant to fifteen years in prison in the two aggravated assault cases, five years in the deadly conduct case, and two years in state jail in the burglary case. The court ordered all the sentences to run concurrently. Appellant brings four issues, arguing the trial court erred in violating appellant's statutory and common law right to allocution; the court imposed grossly disproportionate punishments; and the sentences of imprisonment violated appellant's rights under the objectives of the Texas Penal Code. We affirm.
Cause numbers 05-19-01004 and 01028-CR.
Cause number 05-19-01030-CR.
Cause number 05-19-01029-CR.
DISCUSSION
I. Allocution
In his first issue, appellant argues he is entitled to a new sentencing hearing because the trial court violated his statutory right to allocution. In his second issue, appellant argues he is entitled to a new sentencing hearing because the trial court violated his common-law right to allocution. The State replies that these complaints are not preserved, and we agree.
"Allocution" refers to a trial judge affording a criminal defendant the opportunity to "present his personal plea to the Court in mitigation of punishment before sentence is imposed." McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974) (op. on reh'g). The statutory right is found in article 42.07 of the Texas Code of Criminal Procedure and requires that the defendant 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.
But to complain on appeal of the denial of the right of allocution, regardless of whether it is statutory, or one claimed under the common law, a defendant must timely object. See Hall v. State, Nos. 05-18-00442 & 443-CR, 2019 WL 3955772, at *1 (Tex. App.—Dallas Aug. 22, 2019, pet. ref'd) (mem. op., not designated for publication); Nelson v. State, No. 05-18-00938-CR, 2019 WL 2121051, at *5 (Tex. App.—Dallas May 15, 2019, no pet.) (mem. op., not designated for publication); Loring v. State, No. 05-18-00421-CR, 2019 WL 3282962, at *5 (Tex. App.—Dallas July 22, 2019, no pet.) (mem. op., not designated for publication); see also Gallegos-Perez v. State, No. 05-16-00015-CR, 2016 WL 6519113, at *2 (Tex. App.—Dallas Nov. 1, 2016, no pet.) (mem. op.) (not designated for publication) (citing Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. [Panel Op.] 1978); McClintick, 508 S.W.2d at 618)).
Appellant never asked the trial court for the opportunity to make an allocution under article 42.07 or common law, nor did he object to the court's failure to afford him his right of allocution. When the trial court asked defense counsel, prior to imposing sentence, "Is there any reason why your client should not be sentenced at this time," counsel replied, "No, Your Honor."
We have repeatedly held that a defendant who fails to timely object to the denial of his right of allocution does not preserve the complaint for appeal. See, e.g., Nelson, 2019 WL 2121051, at *5. Although appellant raised his allocution complaint in his motions for new trial (filed in each of the four cases), "an appellant may raise a sentencing issue in a motion for new trial for the first time only if the appellant did not have the opportunity to object in the punishment hearing." Burt v. State, 396 S.W.3d 574, 577 n. 4 (Tex. Crim. App. 2013); Nelson, 2019 WL 2121051, at *5. Prior to sentencing, appellant had the opportunity to object that the trial court had denied him any right to allocution. Because appellant did not do so, he failed to preserve the issue for our review. Accordingly, we deny his first and second issues.
II. Eight Amendment
In his third issue, appellant contends the trial court imposed "grossly disproportionate" punishments and thus violated the Eighth Amendment's prohibition on cruel and unusual punishments.
The applicable punishment range for appellant's two first-degree felony aggravated assault of a public servant convictions is imprisonment for life or for any term of not more than 99 years or less than five, and a fine not to exceed $10,000. See TEX. PENAL CODE ANN. §§ 22.02(a), (b)(2)(A); 12.32. The trial court sentenced appellant to fifteen years in both cases. The applicable punishment range for appellant's third-degree felony deadly conduct conviction is imprisonment for any term of not more than ten years or less than two, and a fine not to exceed $10,000. See id. §§ 22.05(b)(2), (e); 12.34. The trial court's sentence was five years. The applicable punishment range for appellant's state-jail felony burglary conviction is confinement in a state jail for any term of not more than two years or less than 180 days, and a fine not to exceed $10,000. See id. §§ 30.02(a)(1), (c); 12.35. The trial court sentenced appellant to two years in State jail. The court did not impose any fines.
To preserve error for appellate review, the record must show the party complaining on appeal made a timely objection that "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." TEX. R. APP. P. 33.1(a). This prerequisite applies to a complaint about an allegedly disproportionate or cruel and unusual sentence. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.); see also Davis v. State, 323 S.W.3d 190, 196 (Tex. App.—Dallas 2008, pet. ref'd.) ("Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived."); Sims v. State, No. 05-18-00572-CR, 2019 WL 2266547, at *3 (Tex. App.—Dallas May 28, 2019, no pet.) (mem. op., not designated for publication) (claim that trial court violated Eight Amendment by imposing grossly disproportionate punishment not preserved for review because appellant failed to object at time sentence was imposed or in a motion for new trial).
Appellant did not object to the length of his sentences—all of them within the applicable statutory ranges of punishment—at trial or in his motion for new trial. Thus, he failed to preserve the complaint for appellate review. See TEX. R. APP. P. 33.1(a); Davis, 323 S.W.3d at 196 (defendant failed to preserve his cruel and unusual punishment claim for appellate review); Castaneda, 135 S.W.3d at 723. We overrule appellant's third issue.
III. Sentences
In his fourth issue, appellant argues that the sentences of imprisonment imposed by the trial court violated appellant's rights under the objectives of the Texas Penal Code. Appellant's complaint is based on the trial court having sentenced him to terms of imprisonment instead of placing him on community supervision.
As we noted before, appellant did not object to the length of his sentences at trial. Defense counsel's request in closing argument that the trial court "give him a chance on probation on these cases" did not adequately inform the court or raise the issue that the court abused its discretion in imposing these sentences. Accordingly, appellant failed to preserve his complaint for appellate review. See TEX. R. APP. P. 33.1(a); Davis, 323 S.W.3d at 195-96; Castaneda, 135 S.W.3d at 723. We overrule appellant's fourth issue.
We affirm the trial court's judgments.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
191004F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 4, Dallas County, Texas
Trial Court Cause No. F18-42189-K.
Opinion delivered by Justice Myers. Justices Partida-Kipness and Reichek participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 10th day of August, 2020.
JUDGMENT
On Appeal from the Criminal District Court No. 4, Dallas County, Texas
Trial Court Cause No. F18-42190-K.
Opinion delivered by Justice Myers. Justices Partida-Kipness and Reichek participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 10th day of August, 2020.
JUDGMENT
On Appeal from the Criminal District Court No. 4, Dallas County, Texas
Trial Court Cause No. F18-42191-K.
Opinion delivered by Justice Myers. Justices Partida-Kipness and Reichek participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 10th day of August, 2020.
JUDGMENT
On Appeal from the Criminal District Court No. 4, Dallas County, Texas
Trial Court Cause No. F18-42192-K.
Opinion delivered by Justice Myers. Justices Partida-Kipness and Reichek participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 10th day of August, 2020.