Description: Appellant was indicted for continuous sexual abuse of a child. At some point he agreed
to plead guilty (apparently to aggravated sexual assault of a child), and a hearing was held at
which the complainant, appellant, and others testified. But the trial judge rejected the plea
because appellant did not admit to having sexual intercourse with the complainant.
Later, at an admonishment hearing before a different trial judge, the State offered
appellant a plea bargain of 25 years for the charged offense or 40 years on a lesser charge of
aggravated sexual assault of a child. The offer further provided that the judge presiding over the
admonishment hearing would read the transcript of the prior hearing and then the parties would
reconvene for a sentencing hearing before the same judge. At that hearing, appellant would be
allowed testify further if he wished. Appellant accepted those terms, and his judicial confession
was admitted into evidence. The court then recessed.
Appellant’s sentencing hearing occurred about a month later. Only appellant testified.
He admitted that he had the complainant move her hand up and down on his exposed penis twice
and that he touched her vagina on top of her underwear once, but he denied having sexual
intercourse with her. Appellant also testified that his own uncle physically and sexually abused
him when he was a child. Appellant’s counsel asked for punishment at the lower end of the
statutory range, which was 5 to 99 years or life in prison. The State asked for 35 years’
imprisonment. The judge found appellant guilty of aggravated sexual assault of a child and
sentenced him to 26 years’ imprisonment.
Appellant timely appealed.
“Preservation of error is a systemic requirement on appeal.” Ford v. State, 305 S.W.3d
530, 532 (Tex. Crim. App. 2009) (footnote omitted). Here, appellant did not preserve any of his
A. Issue One: Was appellant’s common-law right to allocution violated?
Appellant complains that the trial court denied him a common-law allocution right.
“Allocution” is the practice of asking a criminal defendant to speak in mitigation of the sentence
to be imposed. McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974). Appellant
concedes that the trial court implemented the statutory allocution right found in the Texas Code
of Criminal Procedure, see TEX. CODE CRIM. PROC. art. 42.07, but he urges that he was denied an
additional common-law right to make a final plea for mercy or in mitigation of punishment.
The State correctly responds that appellant did not object in the trial court that he was
being denied his alleged common-law allocution right. This issue must be preserved in the trial
court. See McClintick, 508 S.W.2d at 618. Because appellant did not do so, we overrule his first
B. Issue Two: Did the trial court err by reviewing a transcript that was not admitted into evidence at appellant’s sentencing hearing?
Appellant next complains that the trial court erred by reviewing a hearing transcript
containing witness testimony and considering it in his sentencing although the transcript was not
offered or admitted into evidence at the sentencing hearing.
As previously noted, part of appellant’s plea agreement was that the trial court would
review the transcript before the sentencing hearing. The State correctly urges that appellant
never objected to this procedure. Accordingly, we overrule appellant’s second issue because he
forfeited this complaint. See TEX. R. APP. P. 33.1(a); Harvey v. State, 173 S.W.3d 841, 850
(Tex. App.—Texarkana 2005, no pet.) (appellant forfeited complaint that trial judge considered
matters outside the record in assessing punishment).
C. Issue Three: Is appellant’s sentence unconstitutionally excessive?
Appellant’s final issue argues that his sentence is grossly disproportionate to his crime
and thus violates the Eighth Amendment and the Texas Constitution.
Again the State correctly urges appellant’s failure to raise this objection in the trial court.
The constitutional rights appellant now invokes must be preserved in the trial court. See
Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). Accordingly,
appellant forfeited his third issue, and we overrule it.
Outcome: For the foregoing reasons, we affirm the trial court’s judgment.