Victor Manuel Amador v. State ( 2015 )

Affirmed and Memorandum Opinion filed July 28, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00405-CR
VICTOR MANUEL AMADOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 1390566
MEMORANDUM OPINION
Appellant entered a guilty plea to aggravated robbery. The trial court
sentenced appellant to confinement for forty years in the Institutional Division of
the Texas Department of Criminal Justice. Appellant filed a timely notice of
appeal. We affirm.
In his first two issues, appellant argues the trial court erred by imposing a
sentence grossly disproportionate to the offense resulting in cruel and/or unusual
punishment in violation of the United States Constitution and the Texas
Constitution.1 Appellant, however, failed to preserve his complaint for review.
Appellant cites Meadoux v. State, 325 S.W.3d 189 (Tex. Crim. App. 2010),
for its review of the constitutionality of severe prison sentences despite such claims
being made for the first time on appeal. In Meadoux, the preservation question
was not raised by the State in the court of appeals; the court of appeals did not
address the matter; and review was not granted by the Court of Criminal Appeals
for consideration of that issue. Id. at 193 n.5. The court noted that “a court of
appeals may not reverse a judgment of conviction without first addressing any
issue of error preservation.” Id. The Court of Criminal Appeals concluded that
because it would ultimately affirm the judgment of the court of appeals, it was
unnecessary to address the preservation issue or remand the case for consideration
of that matter. Id. In its brief to this Court, however, the State argues that appellant
failed to preserve error. Thus, Meadoux does not control our disposition of this
case.
A defendant must object when his sentence is assessed or file a motion for
new trial to preserve a complaint of cruel and unusual punishment. See Tex. R.
App. P. 33.1(a); Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston [14th
Dist.] 2010, pet. ref’d); Noland v. State, 264 S.W.3d 144, 151–52 (Tex.App.—
Houston [1st Dist.] 2007, pet. ref’d). Appellant did not object when his punishment
was announced or file a motion for new trial. Accordingly, nothing is presented for
our review. Appellant’s first and second issues are overruled.
1
The United States Constitution prohibits cruel and unusual punishment, U.S. CONST.
amend. VIII. The Texas Constitution prohibits cruel or unusual punishment. Tex. Const. art. 1, §
13.
2
In his third issue, appellant claims the trial court violated his right to
allocution by failing to ask him whether he had anything to say as to why sentence
should not be pronounced against him. See Tex. Code Crim. Proc. Ann. art. 42.07
(West 2014) (“Before pronouncing sentence, the defendant shall be asked whether
he has anything to say why the sentence should not be pronounced against him.”).
The State argues that appellant failed to preserve error regarding this
complaint. Appellant concedes there is precedent that nothing is presented for
review when an appellant fails to object to the trial court’s failure to comply with
Article 42.07. See Tex. R. App. P. 33.1(a); Tenon v. State, 563 S.W.2d 622, 623–
24 (Tex. Crim. App. 1978) (holding nothing was preserved for review when
appellant failed to object to trial court’s failure to follow article 42.07); McClintick
v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974); Norton v. State, 434
S.W.3d 767, 771 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Hernandez v.
State, 628 S.W.2d 145, 147 (Tex.App.—Beaumont 1982, no pet.); Demouchette v.
State, 734 S.W.2d 144, 146 (Tex.App.—Houston [1st Dist.] 1987, no pet.).
Appellant asserts, however, that there was no opportunity to speak because
he was immediately remanded into custody. The record reflects that after the trial
court stated appellant was remanded into custody, he said, “Thank you [defense
counsel]. Defense counsel then stated, “Thank you, Your Honor.” An objection
could have been lodged at that time.
Appellant also argues that McClintick predates Marin v. State, 851 S.W.2d
275, 278–79 (Tex. Crim. App. 1993), which acknowledged the existence of certain
legal rights that must be waived expressly, and he urges this Court to hold the right
of allocution is such a right.2 We have recently held that a defendant failed to
2
Marin was subsequently overruled by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim.
App. 1997), on grounds that the failure to give an admonishment is not immune from harmless
3
preserve error by making a timely objection that the trial court violated his
common-law right of allocution. See Norton, 434 S.W.3d at 771. Appellant makes
no argument that we should hold differently when the statutory right to allocution
is invoked for the first time on appeal, and we decline to do so.
Under the cases just cited, preservation of error in the trial court is required
as to a complaint that the trial court erred in refusing to permit an appellant to
exercise his right of allocution. There was no objection to the trial court’s failure to
inquire of the appellant if he had anything to say why sentence should not be
pronounced against him.3 Accordingly, we hold that nothing is presented for our
review and overrule appellant’s third issue.
Having overruled all of appellant’s issues, the judgment of the trial court is
affirmed.
/s/ J. Brett Busby
Justice
Panel consists of Justices Jamison, Busby, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).
error analysis.
3
Nor was the failure harmful, as appellant does not contend that any of the statutory reasons set out in
Article 42.07 to prevent the pronouncement of sentence exist here.
4