Manuel Ybarra, III A/K/A Manuel Ybarra v. State ( 2019 )

NUMBER 13-18-00141-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MANUEL YBARRA III A/K/A
MANUEL YBARRA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 197th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Perkes
Memorandum Opinion by Justice Hinojosa
Appellant Manuel Ybarra III appeals his conviction, pursuant to a guilty plea, for
two counts of indecency with a child by contact, a second-degree felony. See TEX. PENAL
CODE ANN. § 21.11(a)(1). The trial court sentenced Ybarra to concurrent eight-year
sentences to be served in the Texas Department of Criminal Justice–Institutional Division.
In four issues, which we treat as three, Ybarra argues that: (1) the written judgment must
be reformed to reflect the trial court’s failure to make a finding of guilt; (2) Ybarra was
denied the effective assistance of counsel because the trial court did not permit his
counsel to present closing argument; and (3) Ybarra was denied his right to allocution.
We affirm.
I. BACKGROUND
Ybarra pleaded guilty before an associate judge without the benefit of a plea-
bargain agreement. The associate judge admitted the State’s evidence in support of the
plea, accepted appellant’s “Written Waiver and Consent to Stipulation of Testimony,
Waiver of Jury, and Plea of Guilty,” and admonished Ybarra. The associate judge then
accepted the plea, ordered the preparation of a presentence investigation (PSI) report,
and scheduled a sentencing hearing before the district court (trial court). Ybarra’s
counsel then stated: “I’d just like the record to reflect that the Court has made a finding
of guilty. I will represent that this case has been discussed at some point with [the trial
court,] and we reserve the right at sentencing to argue for deferred adjudication.” The
associate judge responded that Ybarra’s argument for deferred adjudication was “not
foreclosed.”
At the sentencing hearing, the State presented argument supporting its request for
a five- to eight- year prison sentence. Ybarra’s counsel argued that deferred adjudication
was appropriate, citing various factors. The trial court then addressed Ybarra personally
regarding its review of the PSI report which indicated that Ybarra had told others that the
trial court would be lenient because of a purported affiliation between the judge and
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Ybarra’s family:
Apparently, you’ve made allegations that you knew me and that your family
were political, and because of that, you would get favorable treatment, I
guess, would be the word, okay? And that really bothers me. It bothers
me a lot, okay? It bothers me a lot, because, again, you know, your family
members are being affected by this. Your family members are concerned
that, “Hey, you know, he knows the judge, and, you know, he’s saying this,
and we’re not going to have our fair day in court and all of that.” And that
is the furthest thing from the truth. And at first when they mentioned your
name, I didn’t know who you were until I think they were a little more specific
and I read about the tire shop, and I think I knew your father . . . . Okay?
But that does not interfere with my decision. You know, when I run for
office, along with many judges, you know, if, you know, I’m asking people
to vote for me, it’s because I will be a fair judge and I will follow the
law . . . regardless of who appears before me. Okay? So, to me, sir, you
know, that’s putting the family through more agony, more emotional upset
and all of that . . . . It’s sort of like they’re being victimized again, you know?
And that’s not right.
Ybarra’s counsel responded to the veracity of the allegations, which were attributed to the
victim’s father in the PSI report:
I don’t blame [the victim’s father.] He was outraged as to what happened.
He went into my client’s house and kicked in the door wanting to beat him
up. Understandably. I understand that . . . . And the relevance of that is
that since then there’s been no communication between [Ybarra and the
victim’s father.] So [the victim’s father] cannot say that after the incident
and arrest, that Mr. Ybarra was bragging, “Hey, I’m not—nothing is going to
happen to me because I know the judge.” I think it’s—he’s very well aware
that the Ybarra family, his father, Manuel Ybarra, was very involved in
politics back in the ‘80s. He was well aware of that because he’s married
to his daughter. And he’s surmising that, because of that, that he’s going
to get favorable treatment before this Court. But I think it’s a
misrepresentation that’s being made that Mr. Perez—that Mr. Ybarra was
bragging, “Nothing is going to happen to me.” To the contrary, his life is
hanging from a little string, and he’s very well aware that you can cut that
string and send him to prison. Very well aware of that. And I think that’s
why, you know, we pled guilty and we’re throwing ourselves on the mercy
of the Court hoping that this Court will, you know, have mercy on him.
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At the conclusion of the hearing, the trial court assessed punishment at eight years’
imprisonment on both counts.
Subsequently, Ybarra filed a motion for reconsideration or reduction of sentence.
At the hearing on the motion, Ybarra’s counsel again argued that community supervision
would be appropriate while further maintaining that the allegations in the PSI report were
not true. He requested that the trial court set aside its previous sentence and reset the
matter in six months while Ybarra remains in custody. Ybarra’s counsel requested that
after six months the trial court could then consider “a motion for shock probation or six
months as a condition of community supervision.” The following exchange then occurred
concerning the appropriateness of the request:
[State]: Your Honor, may I respond? First off, what [defense
counsel] is trying to do is not legal. He is not entitled
to shock probation. Under—
[Defense]: I’m not saying it was shock probation. Let me clarify—
[State]: Well, that’s exactly what he’s trying—
[Defense]: No.
[State]: —to do, Your Honor.
[Defense]: I’m saying—I’m trying to explain the reason why I would
ask the Court to set aside the judgment and reset it for
six months, because he wouldn’t be—
[State]: If I can continue, Your Honor.
[Defense]: No. You’re misrepresenting something I said.
[State]: You just said “shock probation,” [defense counsel].
THE COURT: Gentlemen, gentlemen, gentlemen, gentlemen. You
finish and then I’ll allow [the defense]—
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The State completed its argument, and the trial court then announced that it was denying
Ybarra’s motion.
Ybarra later filed a “Motion for Court to Allow Defense Counsel to Respond to
Prosecutor’s Argument,” a “Motion for Allocution and Further Motion for Reconsideration
of Sentence,” a “Motion to Correct the Judgment and to Reconvene the Sentencing
Hearing,” and a motion for new trial. After hearing argument, the trial court denied the
various motions. This appeal followed.
II. FINDING OF GUILT
By his first issue, Ybarra argues that the written judgment incorrectly states that
the trial court made a finding of guilt. Ybarra maintains that neither the associate judge
nor the trial court expressly found Ybarra guilty, and that absent such a finding, this Court
should reform the judgment to reflect a judgment of deferred adjudication. We disagree.
A written judgment that is in proper form is not rendered void by the absence of an
express oral pronouncement by the trial court that the accused is guilty of the offense.
Villela v. State, 564 S.W.2d 750, 751 (Tex. Crim. App. 1978); see Sanchez v. State, 222
S.W.3d 85, 88 (Tex. App.—Tyler 2006, no pet.); see also Jacobo v. State, No. 13-17-
00588-CR, 2018 WL 3764564, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 9, 2018,
no pet.) (mem. op., not designated for publication). The trial court’s action in assessing
punishment after a hearing is an implied rendition of guilt. See Villela, 564 S.W.2d at
751. Beyond the pronouncement of sentence, “no further ritual or special incantation
from the bench is necessary to accomplish an adjudication of guilt.” Jones v. State, 795
S.W.2d 199, 201 (Tex. Crim. App. 1990).
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Here, the associate judge accepted Ybarra’s guilty plea, and the trial court
pronounced his sentence. No “further ritual or special incantation” was required. See
id. We overrule Ybarra’s first issue.
III. CLOSING ARGUMENT
By his second issue, Ybarra argues that he was denied the effective assistance of
counsel because the trial court denied his attorney the opportunity to make a closing
argument. Specifically, Ybarra maintains that his counsel was not allowed to respond to
the State’s argument that Ybarra’s request for “shock probation” was inappropriate.
A. Applicable Law
The Sixth Amendment guarantees the assistance of counsel in obtaining a fair
decision on the merits. See Ex parte McFarland, 163 S.W.3d 743, 751–52 (Tex. Crim.
App. 2005); Teamer v. State, 429 S.W.3d 164, 174 (Tex. App.—Houston [14th Dist.]
2014, no pet.). That right extends to closing argument, which is crucial to our adversarial
system of justice. See Herring v. New York, 422 U.S. 853, 861 (1975); Ruedas v. State,
586 S.W.2d 520, 522 (Tex. Crim. App. [Panel Op.] 1979); Teamer, 429 S.W.3d at 174.
Thus, the improper denial of closing argument may constitute a denial of the right to
counsel. McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989); Teamer, 429
S.W.3d at 174.
B. Analysis
Here, we observe that Ybarra’s attorney presented extensive argument to the trial
court to support his request for deferred adjudication community supervision. Ybarra’s
counsel cited various factors for the trial court to consider, including Ybarra’s age, health,
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minimal criminal history, and charitable contributions as well as the fact that Ybarra would
be subject to the registration requirements for sex offenders. Counsel presented his
arguments at both the sentencing hearing and the hearing on Ybarra’s motion for
reconsideration of the sentence. We also note that Ybarra’s counsel was able to
respond to the State’s allegation that his request for shock probation was inappropriate.
In particular, counsel maintained that the State was misrepresenting his request, while
reiterating that he was requesting that the sentencing court set aside its earlier sentence
and set the matter again in six months. On this record, we conclude that Ybarra’s
counsel was given an adequate opportunity to present closing argument. Therefore,
Ybarra’s right to counsel was not violated. See McGee, 774 S.W.2d at 238. We
overrule Ybarra’s second issue.
IV. ALLOCUTION
By his third issue, Ybarra argues that he was denied the right to allocution.
Specifically, Ybarra complains that he should have been permitted to personally address
the trial court regarding the allegations in the PSI report.
A. Applicable Law
Allocution refers to the trial court affording a criminal defendant the opportunity to
“speak in mitigation of the sentence to be imposed.” Eisen v. State, 40 S.W.3d 628,
631–32 (Tex. App.—Waco 2001, pet. ref’d) (quoting A DICTIONARY OF MODERN LEGAL
USAGE 45 (Bryan A. Garner, ed., 2d ed., Oxford 1995)). There exists both a statutory
and common-law right to allocution. See id. Article 42.07 of the code of criminal
procedure provides that a defendant “shall be asked whether he has anything to say why
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the sentence should not be pronounced against him” and that the only reasons for which
sentence cannot be pronounced are (1) a pardon, (2) incompetency, or (3) mistaken
identity. See TEX. CODE CRIM. PROC. ANN. art. 42.07.
As a prerequisite to presenting a complaint for appellate review, the record must
show that the specific complaint was made to the trial court. See TEX. R. APP. P. 33.1(a).
Likewise, an objection to a denial of allocution is required to preserve a complaint on
appeal. See Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. 1978) (overruling
issue raising violation of article 42.07 where “[t]here were no objections to the court’s
failure to inquire of the appellant if she had anything to say why the sentence should not
be pronounced against her”).
B. Analysis
Ybarra did not object at the sentencing hearing that he was denied either his
common law or statutory right to allocution, and therefore, he failed to preserve error.
See Eisen, 40 S.W.3d at 637 (holding that “court’s failure to follow article 42.07 was not
preserved for our review” where the “issue [was raised] for the first time on appeal”); see
also Gay v. State, No. 13-16-00158-CR, 2017 WL 2705446, at *1–2 (Tex. App.—Corpus
Christi–Edinburg June 22, 2017, no pet.) (mem. op., not designated for publication);
Russell v. State, Nos. 13–14–00018–CR and 13–14–00019–CR, 2015 WL 4593728, at
*2 (Tex. App.—Corpus Christi–Edinburg July 30, 2015, no pet.) (mem. op., not designated
for publication).
Further, to the extent that Ybarra raised the issue in his post-sentencing motion,
the argument was untimely and does not satisfy the preservation requirements of Rule
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33.1. 1 See TEX. R. APP. P. 33.1; Burt v. State, 396 S.W.3d 574, 577 n.4 (Tex. Crim. App.
2013) (“[A]n appellant may raise a sentencing issue in a motion for new trial for the first
time only if the appellant did not a have the opportunity to object in the punishment
hearing.” (quoting Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999))); 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) (“[T]o complain
on appeal of the denial of a right to allocution, whether statutory or one claimed under the
common law, a defendant must timely object.”).
We also reject Ybarra’s alternative argument that the sentencing court erred in
considering the allegation in the PSI report that Ybarra claimed to have some sort of
influence over the trial court. A trial court may consider the information contained within
the PSI report regardless of whether the information would otherwise violate rules
concerning hearsay, admissibility of expert opinion, or Confrontation Clause objections.
See Stringer v. State, 309 S.W.3d 42, 46–48 (Tex. Crim. App. 2010). However, it must
allow a defendant or the defendant’s attorney to “comment” on a PSI report, and the court
may allow a defendant to introduce testimony or other information alleging a factual
inaccuracy in the report. See TEX. CODE CRIM. PROC. ANN. art. 42A.255(b); Stringer, 309
S.W.3d at 42. Here, Ybarra’s counsel was given the opportunity to thoroughly argue that
the complained-of allegation was factually inaccurate. Under such circumstances, we
conclude that the trial court did not err in considering the allegation in its punishment
assessment. We overrule Ybarra’s third issue.
1Because Ybarra failed to preserve error concerning allocution, we deny his request to reform the
judgment by deleting the reference to Ybarra having been afforded allocution.
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V. CONCLUSION
We affirm the trial court’s judgment.
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
15th day of August, 2019.
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