Opinion
No. 06-20-00090-CR
01-29-2021
RIGO REYNA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4 Dallas County, Texas
Trial Court No. F-1775149-K Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Rigo Reyna was convicted of murder by a Dallas County jury and sentenced to fifty years' imprisonment. On appeal, Reyna argues (1) that the trial court violated his right of allocution and (2) that the trial court's judgment mistakenly recited that he pled true to the State's punishment enhancement allegations. We find that Reyna failed to preserve his first point of error on appeal. However, because we sustain Reyna's second point of error, we modify the trial court's judgment to reflect that Reyna entered a plea of not true to the State's punishment enhancement allegations. As modified, we affirm the trial court's judgment.
Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001. We follow the precedent of the Fifth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
I. Reyna Failed to Preserve His Complaints Related to the Right of Allocution
In his first point of error on appeal, Reyna argues that the trial court violated both his statutory and common law right of allocution. The State argues that Reyna failed to preserve these complaints, 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 of allocution is contained in Article 42.07 of the Texas Code of Criminal Procedure, which requires the defendant to be asked "whether he has anything to say why the sentence should not be imposed against him" before his sentence is pronounced. TEX. CODE CRIM. PROC. ANN. art. 42.07.
Even so, a complaint about the denial of the right of allocution must be preserved by a timely request, objection, or motion to the trial court. See TEX. R. APP. P. 33.1; McClintick, 508 S.W.2d at 617-18; Vasquez v. State, 605 S.W.3d 734, 738 (Tex. App.—Houston [1st Dist.] 2020, no pet.); Norton v. State, 434 S.W.3d 767, 771 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Smith v. State, 352 S.W.3d 55, 71-72 (Tex. App.—Fort Worth 2011, no pet.); see also Zamarron v. State, No. 05-19-00632-CR, 2020 WL 6280869, at *4 (Tex. App.—Dallas Oct. 27, 2020, no pet.) (mem. op., not designated for publication); Speights v. State, No. 06-19-00019-CR, 2019 WL 3417362, at *2 (Tex. App.—Texarkana July 30, 2019, no pet.) (mem. op., not designated for publication). As a result, Reyna had the responsibility of clearly conveying his complaints about the denial of allocution to the trial court, including "the precise and proper application of the law as well as the underlying rationale." Pena v. State, 285 S.W.3d 459, 463-64 (Tex. Crim. App. 2009). This is because, to avoid forfeiting a complaint, the complaining party must "let the trial judge know what he wants[] [and] why he thinks he is entitled to it, and . . . 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)).
"Although unpublished opinions have no precedential value, we may take guidance from them 'as an aid in developing reasoning that may be employed.'" Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana 2017, pet. ref'd) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref'd)). --------
Here, because the record shows that Reyna raised no complaints about the denial of allocution before the trial court, we find them unpreserved. As a result, we overrule Reyna's first point of error.
II. We Modify the Judgment to Reflect that Reyna Pled Not True to the State's Punishment Enhancement Allegations
"This Court may modify the trial court's judgment to make the record speak the truth when it has the necessary data and information to do so." Jones v. State, 600 S.W.3d 94, 101 (Tex. App.—Dallas 2020, pet. ref'd) (citing TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd)).
During trial, Reyna pled not true to the State's punishment enhancement allegations. Even so, the trial court's judgment mistakenly shows that Reyna pled true to the allegations. As a result, Reyna argues that the trial court's judgment must be modified, and the State concedes the error. We sustain this point of error and modify the judgment to show the proper nature of Reyna's pleas.
III. Conclusion
We modify the trial court's judgment to reflect that Reyna pled not true to the State's punishment enhancement allegations. As modified, we affirm the trial court's judgment.
Scott E. Stevens
Justice Date Submitted: January 28, 2021
Date Decided: January 29, 2021 Do Not Publish