Dylan Gauvin v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00096-CR
NO. 09-22-00097-CR
__________________
DYLAN GAUVIN, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause Nos. 20-03-03470-CR and 20-03-03473-CR
__________________________________________________________________
MEMORANDUM OPINION
After Dylan Gauvin pleaded guilty, the trial court conducted a
punishment hearing on trial court causes 20-03-03470-CR and 20-03-
03473-CR, which resulted in Gauvin receiving concurrent, 15-year
1
sentences. Gauvin’s convictions are based on indictments charging him
with committing two robberies on March 9, 2020. 1
Gauvin appealed. In Gauvin’s first issue, he asserts that despite the
failure of the attorney who represented him in his trial to object to the
prosecutor’s closing argument, the prosecutor argued facts outside the
record and mischaracterized other “key facts in this case,” which he
argues harmed him by adversely affecting his sentence. According to
Gauvin, had the prosecutor not made the improper arguments, the trial
court would probably have given him a more lenient sentence. In
Gauvin’s second issue, he argues that when conducting his punishment
hearing, the trial court failed to expressly pronounce that Gauvin had
used a deadly weapon when he committed the robberies.
For the reasons explained below, we conclude Gauvin’s issues lack
merit. We will affirm.
Background
Given the limited scope of the issues that Gauvin has raised in his
appeal, we limit our discussion of the background to the information
1Tex. Penal Code Ann. § 29.03(a)(2).
2
required to explain the Court’s resolution of the arguments Gauvin has
relied on to support the point of error her raised in his appeal.
In March 2020, the State indicted Gauvin for committing two
aggravated robberies, alleging that he committed both robberies on or
about March 9, 2020. Both indictments allege that Gauvin used a deadly
weapon in committing the robberies. As to the deadly weapon allegation
in the respective indictments, they each state: “. . . and the defendant did
then and there use or exhibit a deadly weapon, to-wit: a firearm[.]”
After Gauvin signed judicial confessions in the two cases, which
were based on a plea agreement, Gauvin appeared in court and pleaded
guilty as charged to the allegations in the indictments. In the judicial
confessions that Gauvin signed, which are in the Clerk’s Record, Gauvin
elected to have the trial assess his punishment.
In February 2023, the trial court conducted a punishment hearing
to assess Gauvin’s sentences. Seventeen witnesses were called as
witnesses in the two-day hearing, eight by the State and nine by Gauvin.
On appeal, Gauvin relies on three arguments to support his first issue,
which asserts the prosecutor mischaracterized certain “key facts” in
3
closing argument. First, he claims that when the prosecutor made the
following argument, he “mischaracterize[d] key facts[:]”
In this case, I found it very, very sad that [two individuals
that Gauvin robbed and who testified in Gauvin’s punishment
hearing] are just two blue-collared guys working a minimum
wage job through COVID and they had a gun put in their face
and when they came to testify, it’s almost expected that if they
were going to do that job, that, that’s something they would
encounter. I mean, they didn’t have a lot of emotion because
for them, that’s part of it. If you work as a clerk at a gas
station, you are going to get robbed. Hopefully, they just take
the cash from the register and not the car [that was owned by
the gas station’s clerk].
Second, Gauvin claims that in rebuttal, the prosecutor made
another argument, also unsupported by the facts in the record. As to that
claim, Gauvin points to the prosecutor’s argument, “it wasn’t a drug-
fueled crime that they [Gauvin] would have you believe. That’s not what
happened. He was making those decisions.” In his brief, Gauvin argues
that the record contains “uncontradicted testimony” that shows Gauvin
“was on marijuana, percocets, and promethazine” when the robberies
occurred. He also relies on testimony elicited in the hearing from his
father, who testified that when Gauvin committed the robberies, he was
“‘probably under some influence’. . . because this is not what we taught
him growing up.”
4
Gauvin’s attorney didn’t object to any parts of the prosecutor’s
closing argument, including any argument the prosecutor presented
during rebuttal. After the parties completed their arguments, the trial
court advised the parties that after considering the evidence, the
seriousness of the crimes, the impact it had on the victims, the age of the
defendant, the defendant’s presentence-investigation report, and the
forms and letters submitted to the court, “it is the order of the Court that
you will receive a 15-year sentence on each cause. They shall run
concurrent. There is an affirmative finding as to the deadly weapon
which will have a bearing on that sentence[.]” That same day, the trial
court signed the judgments of conviction. The judgment in both cases
contain an affirmative finding that Gauvin used a firearm when he
committed the offense.
Analysis
Closing Argument
In Gauvin’s first issue, he complains that in closing argument, the
prosecutor “improperly argued facts not in evidence.” According to
Gauvin, the arguments the prosecutor made were either not based on
facts supported by the evidence, or they mischaracterized the testimony
5
that was properly before the court and admitted into evidence during
Gauvin’s punishment hearing.
As mentioned, however, Gauvin didn’t object to the prosecutor’s
arguments. As a prerequisite to presenting a complaint for appellate
review, the record must show the complaint was made to the trial court
in a timely request, objection, or motion.2 “[A] defendant’s failure to object
to a [closing] argument . . . forfeits his right to complain about the
argument on appeal.” 3
Gauvin concedes he failed to object to the arguments that he made
the subject of his first issue, but he argues under the holding in Janecka
v. State, we must nonetheless reach his complaint about the prosecutor’s
allegedly improper argument because the prosecutor’s arguments, he
claims, resulted in causing “egregious harm.”4 We disagree.
2Tex. R. App. P. 33.1(a); Hernandez v. State, 538 S.W.3d 619, 622
(Tex. Crim. App. 2018).
3Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996);
Hernandez, 538 S.W.3d at 622.
4Janecka v. State, 937 S.W.2d 456, 474 (Tex. Crim. App. 1996).
6
Nearly two decades ago in Estrada v. State, the Court of Criminal
Appeals rejected an argument like the one Gauvin relies on here. 5 In
Estrada, the Court of Criminal Appeals said:
[A]ssuming, as appellant argues, that the prosecution’s
argument is so egregious that no instruction to disregard
could possibly have cured the harm, then appellant should
have moved for a mistrial to preserve the error.6
If any question remained about whether the usual rules of error
preservation apply to preserve the right to complain on appeal about an
opposing party’s allegedly improper closing argument, the Court of
Criminal Appeals answered that question eight years later in Hernandez
v. State, 538 S.W.3d 619, 623 (Tex. Crim. App. 2018). In Hernandez, the
appellant argued that even though he failed to properly preserve his
complaint about the prosecutor’s closing argument, the reviewing court
should “hold that error preservation was not required here due to the
egregious nature of the prosecutor’s argument.” 7 Responding to that
argument, the Court of Criminal Appeals explained the usual rules of
5Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010)
(cleaned up).
6Id.
7Hernandez v. State, 538 S.W.3d at 623.
7
error preservation still apply to errors that may be corrected because a
defendant’s right to have a trial free from error is not an absolute
requirement like jurisdiction, which is a requirement that unlike other
rights cannot be waived. 8 In rejecting essentially the same argument that
Gauvin asks us to accept, the Hernandez Court held: “Erroneous jury
argument must be preserved by objection pursued to an adverse ruling;
otherwise, any error from it is waived.” 9
Gauvin concedes the attorney who represented him at trial didn’t
object to the prosecutor’s closing argument. As an intermediate court, we
are required to follow binding precedent in cases decided by the Court of
Criminal Appeals. 10 Because Gauvin waived his right to raise the
arguments on which he relies to support his first issue, the issue is
overruled.
8Id. (citing Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App.
1993)).
9Id.
10See Tex. Const. art. V, § 5(a) (providing that the Texas Court of
Criminal Appeals is the final authority regarding matters of criminal
law); State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006), aff’d
sub nom. State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007).
8
Deadly-Weapon Finding
In issue two, Gauvin complains “there was never an express deadly
weapon finding” in either the hearing the trial court conducted to accept
his plea or to assess his punishment. Gauvin asks the Court to reform
the judgment and to delete the deadly weapon finding from the trial
court’s judgment. We decline to do so for two reasons.
First, we conclude the trial court made an express determination
that Gauvin used a deadly weapon in committing the robberies.
Generally, “[a]n affirmative deadly weapon finding must be an ‘express’
determination in order to be effective.”11 Gauvin argues the trial court
did not expressly find that he used or exhibited a deadly weapon in the
proceedings on his plea or when it assessed his sentence. The State,
however, disagrees and points to the following language in the
punishment hearing as the trial court’s “affirmative finding” on the
allegation in the indictments that Gauvin used a deadly weapon when he
committed the robberies, noting the trial court said in sentencing Gauvin:
11Guthrie-Nail v. State, 506 S.W.3d 1, 4 (Tex. Crim. App. 2015).
9
“There is an affirmative finding as to the deadly weapon which will have
a bearing on that sentence[.]”
In response to the State’s argument, Gauvin contends that the trial
court didn’t make the above statement as an “affirmative finding[;]”
instead, he claims the trial court’s statement “appears to be referencing
a deadly weapon finding[,]” which he claims the trial court mistakenly
thought it made six months earlier in the hearing it conducted when it
accepted Gauvin’s guilty plea.
In our view, Gauvin is mistaken about the effect we must give to
the statement the trial court made in the sentencing hearing, which was
“[t]here is an affirmative as to the deadly weapon which will have a
bearing on that sentence[.]” To be fair, the trial court could have made
the statement in a way that would have left no doubt about how the trial
court intended it’s statement to be interpreted. For example, the trial
court could have said something like—as to the indictments in trial court
cause numbers 20-03-03470-CR and 20-03-03473-CR, I am finding that
when Gauvin committed the offenses, he used or exhibited a deadly
weapon as alleged in those two indictments.
10
But even though the trial court could have been clearer, construing
the trial court’s statement as an affirmative deadly weapon finding to the
deadly weapon allegations in Gauvin’s indictments is consistent with the
judgments the trial court signed, particularly since the trial court signed
them the same day it conducted Gauvin’s the hearing in which it
determined Gauvin’s punishment. Thus, when considered as a whole, the
record doesn’t support Gauvin’s theory the statement should be
construed as a mistaken reference to some earlier affirmative finding,
one that even Gauvin concedes the trial court did actually make when
accepting Gauvin’s plea.
Second, if the record didn’t contain an express finding (and it does),
the record in this case satisfies the “less explicit language” alternative
that substitutes for the express determination requirements under the
jurisprudence of the Court of Criminal Appeals. 12 Here, deadly-weapon
allegations are included in both Gauvin’s indictments. He signed a
judicial confession in each case, pleading guilty to the allegations of
aggravated robbery “as charged by the indictment[s]”. The indictments
12Id.
11
allege that in the course of committing the thefts and with intent to
obtain or maintain control of the property, Gauvin intentionally or
knowingly threatened the respective victims of the robberies by placing
them “in fear of imminent bodily injury or death, and the defendant did
then and there use or exhibit a deadly weapon, to wit: a firearm[.]” The
hearing on Gauvin’s plea shows that in both cases, Gauvin pleaded guilty
to the charges of aggravated robbery in trial court cause numbers 20-03-
03470-CR and 20-03-03473-CR.
Thus, the record before us satisfies both the express determination
requirement, and the conditions needed to satisfy the “less explicit
language” alternative established by the Court of Criminal Appeals.13
“[I]n a bench trial, a trial judge need not include a deadly-weapon finding
in the oral pronouncement of judgment; if the charging instrument
alleged a deadly weapon, the finding may be included for the first time in
a written judgment.”14 The deadly weapon allegation is included in each
indictment here.
13Id.; see also Ex Parte Huskins, 176 S.W.3d 818, 821 (Tex. Crim.
App. 2005).
14Guthrie-Nail, 506 S.W.3d at 4.
12
For all these reasons, we overrule Gauvin’s second issue.
Conclusion
Because Gauvin’s issues were either not preserved or lack merit,
the judgments in trial court causes 20-03-03470-CR and 20-03-03473-CR
are
AFFIRMED.
HOLLIS HORTON
Justice
Submitted on August 4, 2023
Opinion Delivered September 13, 2023
Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.
13