### NUMBER 13 - 10 - 00256 - CR 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRIST I - EDINBURG

MICHAEL CLIFFORD , A ppellant,

v. THE STATE OF TEXAS , Appellee.

On appeal from the 94 th District Court of Nueces County, Texas.



## MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Vela

Memorandum Opinion by Justice Rodriguez Appellant Michael Clifford entered an open plea of guilty to one count of indecency with a child and three counts of sexual assault of a child, without a plea agreement. See
T EX

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. ' ' 21.11, 22.011 (Vernon Supp. 2010) ; see also id

. § § 21.11( d) (setting out that indecency with a child is a second degree felony), 22.011(f) (identifying2

sexual assault as a second degree felony). The trial court accepted Clifford's plea of guilty and, after hearing evidence, sentenced him to twenty years ' impris onment. By two issues, Clifford contends that: (1) article 42.07 of the Texas C ode of Criminal P rocedure is unconstitutional; and (2) his sentence "violates his U[.]S[.] constitutional due process right to receive a sentence which is not more than necessary to accomplish all of the objectives in the Texas Penal Code." 1 We affirm the judgment as modified.
I. A LLOCUTION By his first issue, Clifford argues that article 42.07 of the Texas Code of Criminal Procedure "is unconstitutional in that it abr idges a defendant's constitutional Due Process right under the United States [C]onstitution to directly address the court personally, apart from testifying, in mitigation of his sentence." See T EX

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. art. 42.07 (Vernon 2006 ).
A. Relevant Background 2 Clifford called one witness in mitigation of his sentence and rested. During closing argument, Clifford's counsel asked that Clifford "be permitted to allocu te without being subjected to cross

- examination," and the State objected. Th e trial court later announced that it would allow the defense to re

- open for Clifford to testify, but it wo uld not

1 We mention at the outset that Clifford's arguments mirror those made in Garcia v. State

. See No. 13

- 10

- 00281

- CR, 2010 Tex. App. LEXIS 8 432 , a t *1

- 12 ( Tex. App.

– Corpus Christi Oct. 21, 2010 , no pet. h. ) ( mem. op., not designated for publication). Likewise, our analysis follows this Court's precedent set out therein. See id

. We also note that C lifford states throughout his brief that his arguments are "foreclosed under curr ent law but [are] raise[d]

... in an adversarial fashion for purposes of preserving error for possible further review."

2 B ecause this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See T EX

. R. A PP

. P. 47.4.3

allow Clifford to allocu te without being subject to cross

- examination. Clifford declined to testify.
B. Standard of Review and Applicable L aw When considering the constitutionality of a statute, this Court begins with the presumption that the legislature has not acted unconstitutionally. See Lawrence v. State , 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) (citing State v. Moff , 154 S.W.3d 599, 601 (Tex. Crim. App. 2004)). "'[A]llocution' refers to a trial judge's asking a criminal defendant to 'speak in mitigation of the sentence to be imposed.'" Eisen v. State , 40 S.W.3d 628, 631

- 32 (Tex. App.

– W aco 2001, pet. ref'd) (quoting A D ICTIONARY OF M O DERN L EGAL U SAGE 45 (Bryan A. Garner ed., 2 d ed., Oxford 1995) ). The origin of the common

- law rule of allocution is unknown, see id

.; however, some form of allocution has been codified in both the federal and Texas systems. See F ED

. R. C RIM

. P. 32(i)(4)( A) ; T EX

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. art. 42.07. Article 42.07 of the Texas Code of Criminal Procedure provides: Before pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him. The only reasons which can be shown, on account of which sentence cannot be pronounced, are:
1. That the defendant has received a pardon f rom the proper authority, on the presentation of which, legally authen ticated, he shall be discharged;
2. That the defendant is incompetent to stand trial; and if evidence be shown to support a finding of incompetency to stand trial, no sentence shall be pronounced, and the court shall proceed under Chapter 46B; and
3. When a person who has been convicted escapes aft er conviction and before sentence and an individual supposed to be the same has4 been arrested he may before sentence is pronounced, deny that he is the person convicted, and an issue be accordingly tried before a jury, or before the court if a jury is waiv ed, as to identity.
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. art. 42.07. C. Analysis Clifford does not contend that any of article 42.07's three reasons for withholding pronouncement of sentence apply to him. Se e id

. Instead, Clifford argues that the three reasons enumerated above overly restrict his due process right to directly address the court personally, apart from testifying, in mitigation of his sentence. See id . While asserting that the due process clause of the United States Constitution affords him the right to humanize his situation by personally addressing the court, similar to the right afforded to him in federal sentencing proceedings, see F ED

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. P. 32(i)(4)(A)(ii), Clifford acknowledges that neither Texas statutor y law nor case law clearly extends the right for him to make a personal unsworn stat ement to the sentencing court. Clifford also notes that the United States Supreme Court has not clearly stated whether the denial of allocution constitutes a federal due process violation, see Hill v. United States , 368 U.S. 424, 428 (1962), and cites no case law that holds that allocut ion is a constitutional right. 3
See McGautha v. California , 402 U.S. 183, 218

- 19 (1971) ("This Court has not directly determined whether or to what extent the concept of due process of law requires that a criminal defendant wishing to present evidence or argument presumably relevant to the issues involved in sentencing should be permitted to do so."), judgment vacated by

3 Without further argument, support, or analysis, Clifford also argues that the objectives of Texas sentencing law, found in the penal code, cannot be accomplished without affording the him an opportunity to allocu te personally to the court prior to imposit ion of sentence, apart from presenting evidence or testifying on the stand. See T EX

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. § 1.02 (Vernon 2003). We conclude that this argument is inadequately briefed. See T EX

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. P. 38.1(i).5

Crampton v. Ohio , 408 U.S. 941, 942 (1972); Hill , 368 U.S. at 429; Eisen , 40 S.W.3d at
634. Likewise, the Texas Court of Criminal Appeal s has not interpreted the United States Constitution as requiring such a right. Lewis v. State , 815 S.W.2d 560, 5 68 (Tex. Crim. App. 1991) (en banc) (providing that "[r]emorse following commission of a serious crime may well be a circumstance tending in s ome measure to mitigate the degree of a criminal's fault, but it must be presented in a form acceptable to the law of evidence"); see also Garza v. State , No. AP

- 75,477, 2008 Tex. Crim. App. Unpub. LEXIS 865, at *35 (Tex. Crim. App. Nov. 26, 2008) (not des ignated for publication) (holding that a defendant does not "have a constitutional right to make a statement of remorse free from

cross - examination before p unishment ha[s] been assessed"); Garcia v. State , No.
13

- 10

- 00 281

- CR, 2010 Tex. App. LEXIS 8432, at *1

- 12 (Tex. App.

– Corpus Ch risti, Oct. 21, 2010, pet. filed ) ( mem. op., not designated for publication) ; Arguellez v. State , No.
13

- 09

- 136

- CR, 2009 Tex. App. LEXIS 7832 , at *6

- 7 (Tex. App.

– Corpus Christi, Oct. 8, 2009, no pet. ) ( mem. op., not desi gnated for publication)

. In Eisen , the Waco Court of Appeals addressed whether the right of allocution is of constitutional dimension by discussing the incorporation of common

- law rules into the United States Constitution. See 40 S.W.3d at 634

- 35. Eisen holds that the right of
allocution has not achieved co nstitutional status and provides the following explanation:

Many of the rights of an accused that we take for granted because they are now recognized as constitutional rights were, at common law, limite d. The common law did not guarantee that a criminal defendant would have access to counsel, did not always permit a defendant to testify, did not provide compulsory process to obtain wi tnesses, and did not guarantee t hat the accused could confront his ac cuser. Because we now guarantee those rights, an accused will be heard through his counsel and will have access to witnesses who can aid his defense.6 At the time article 42.07 comes into play, legal matters on the record have already been brought to the court's attention; factual matters relating to punishment have been presented through the evidence. The limitations of that article are designed to allow the defendant to bring to the court's attention legal bars to the imposition of punishment that may no t be of record, specifically including a pardon, incompetency, and mistaken identity. T EX

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. 42.07. Thus, we believe that the legislature's limit to matters in bar of a sentence are reasonable and achieve a permissible legislative objective. See Silver v. Silver , 280 U.S. 117, 122, 50 S. Ct. 57, 74 L. Ed. 221 (1929). Id

. at 635

- 36. We agree with Eisen 's reasoning and conclude that allocution is not a constitutional right. See id .; Lewis , 815 S.W.2d at 568; see also Garza , 2008 Tex. Crim. App. LEXIS 865, at *35 ; Garcia , 2010 Tex. App. LEXIS 8432, at *7; Allen v. State , No.
11

- 05

- 00128

- CR, 2006 Tex. App . LEXIS 5072 , at *22 (Tex. App.

– E astland June 15, 2006, no pet.) ( mem. op., not designated for publication). Neverthel ess, even assuming that the right to allocute is constitutio nal, we would conclude that error, if any, is harmless. See T EX

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. P. 44.2(a). At the sentencing hearing, Clifford had the right to present evidence and argument to support a mitigation request. While Clifford chose not to testify, his wife of fourteen years did. On appeal, Clifford does not indicate that he wished to in form the trial court that he had been pardoned, was incompetent, or had been misidentified following an escape. See T EX

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. art. 42.07. Clifford also has not indicated what additional mitigating evidence he would have raised if given t he opportunity to address the trial court free from cross

- examination. Accordingly, we could not conclude beyond a reasonable doubt that the complained

- of error , if any, contributed to the punishment assessed. See
T EX

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. P. 44.2(a).7

Clifford 's firs t issue is overruled.

II. C ONSTITUTIONALITY OF S ENTENCE By his second issue, Clifford contends that the sentence imposed "violates his U[.]S[.] constitutional right to receive a sentence which i s not more than necessary to accomplish all of the objectives in the Texas Penal Code." He argues that "a sentence below the maximum statutory range would have been much more appropriate in this case" and would still have accomplished all of the sentencing objectives of the penal code. See T EX

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. § 1 .02 (Vernon 2003). He also generally asserts "that his substantive and procedural due process rights were violated when the court imposed a sentence at the top end of the statutory range, in light of the facts ... established on the record

. " See U .S. C ONST

. amend s . VIII , XIV. A. Applicable Law The Texas Penal Code sets out the following objectives of sentencing: The general purposes of this code are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state prote ction is appropriate. To this end, the provisions of this code are intended, and shall be construed, to achieve the following objectives: (1) to insure the public safety through: (A) the deterrent influence of the penalties hereinafter provided; (B) the rehabilitation of those convicted of violations of this code; and (C) such punishment as may be necessary to prevent likely recurrence of criminal behavior; (2) by definition and grading of offenses to give fair warning of what is prohibite d and of the consequences of violation;8

(3) to prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders; (4) to safeguard conduct that is without guilt from condemnation as criminal; (5) to guide and limit the exercise of official discretion in law enforcement to prevent arbitrary or oppressive treatment of persons suspected, accused, or convicted of offenses; and (6) to define the scop e of state interest in law enforcement against specific offenses and to systematize the exercise of state criminal jurisdiction. See T EX

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. § 1.02. "Save as limited by constitutional provisions safeguarding individual rights, a State may choose means to protect itself and its people against criminal violation of its laws. The comparative gravity of criminal offenses and whether their consequences are more or less injurious are matters for its determination." Pennsylvania v. Ashe , 302 U.S. 51,
55

- 56 (1937); see Crawley v. State , 513 S.W.2d 62, 66 (Tex. Crim. App. 1974) (holding that "[i]t is within the power of the State to define as criminal conduct w hatever acts it sees fit, so long as such acts bear some reasonable relation to the needs of society and the safety an d general welfare of the public "). The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel a nd unusual punishment inflicted " and is applicable to punishments imposed by state courts through the Fourteenth Amendment's Due Process Clause. U.S. C ONST

. amend s . VIII , XIV; Robinson v. California , 370 U.S. 660, 667 ( 1962). The Eigh th Amendment does not require strict proportionality between the crime and the sentence; rather, it forbids9

extreme sentences that are "grossly disproportionate" to the crime. Ewing v. California , 538 U.S. 11, 21 (2003). In general, Texas courts have hel d that as long as the punishment assessed falls within the statutory range, the punishment is not excessive. See Jordan v. State , 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Trevino v. State , 1 74 S.W.3d 925, 928 (Tex. App.

– C orpus Christi 2005, pet. ref'd)

. B. Analysis Clifford 's sentence falls within the punishment ra nge for second

- degree felonies. See T EX

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. § 12.33(a) (Vernon Supp. 2010) (providing that the applicable range of punishment for a second

- degree is imprisonment for "any term o f not more than 20 years or less than 2 years")

. Although this normally does not end our inquiry, see Winchester v. State , 2 46 S.W.3d 386, 388 (Tex. App.

– A marillo 2008, pet. ref'd) (recognizing that a prohibition against a grossly disproportionate sentence survives under the federal constitution apart from any consideration whether the punishment assessed is within the sta tute's punishment range), Clifford made no objection to his sentence either at the time of sentencing or in any post

- trial motion

. To pres erve error for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. T EX

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. P. 33.1(a). By failing to specifically object in the trial court o r in a post
- trial motion, Clifford has waived any error for our review. See Noland v. State , 2 64 S.W.3d 144, 151 (Tex. App.

– H ousto n [1st Dist.] 2007, pet. ref'd) ( "[I]n order to preserve for appellate review a complaint that a sentence is grossly disproportion ate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds10

for the ruling desired."); Trevino , 174 S.W.3d at 927

- 28 ("Because the sentence imposed
is withi n the punishment range and is not illegal, we conclude that the rights [appellant] asserts for the first time on appeal are not so fundamental as to have relieved him of the necessity of a timel y, specific trial objection."). Moreover, even had Clifford p reserved error, punishment which falls within the limits prescribed by a valid statute, as in this case, is not excessive, cruel, or unusual. See Trevino , 174 S.W.3d at 928. We overrule Clifford 's second issue.

III. M ODIFICATION OF J UDGMENT The trial court's judgment mistakenly refers to section 21.22, a non

- existent section of the penal code, instead of section 21.11, as the statute concerning the offense of indecency with a child. See T EX

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. § 21.11

. Because we have the

nece ssary data and evidence for reformation, we modify the trial court's judgment to reflect the c orrect statute for the offense

— Texas Penal Code section 21.11. See id .; T EX

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. P. 43.2; Bigley v. State , 865 S.W.2d 26, 27 (Tex. Crim. App. 1993) (en banc)

. IV. C ONCLUSION We affirm the trial court's judgment as modified.

NELDA V. RODRIGUEZ Justice
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. P. 47.2(b). Delivered and filed the 9th day of December , 2010.