NUMBER 13-23-00164-CR

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

CHARLES KEPFORD, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 28th District Court of 

Nueces County, Texas.

 

MEMORANDUM OPINION 

Before Chief Justice Contreras and Justices Benavides and Tijerina

Memorandum Opinion by Chief Justice Contreras

The trial court revoked appellant Charles Kepford’s community supervision and 

adjudicated him guilty of cruelty to a non-livestock animal, a third-degree felony. See TEX.

PENAL CODE ANN. § 42.092(b)(1), (c-1). By his sole issue, Kepford argues that the trial 

court erred by sentencing him without giving him an opportunity to speak in allocution.

We affirm. 
2 

I. BACKGROUND

Pursuant to a plea agreement, Kepford was placed on seven years’ deferredadjudication community supervision on October 27, 2021. See TEX. CODE CRIM. PROC.

ANN. art. 42A.101. The State filed a motion to revoke community supervision, and the trial 

court held a hearing on the motion on March 28, 2023. Kepford pleaded true to certain

allegations in the State’s motion, and the trial court revoked Kepford’s community 

supervision and adjudicated him guilty. After the parties’ closing arguments, the trial court 

rendered its verdict, to which Kepford replied, “Yes, ma’am.” The trial court wished 

Kepford “Good luck,” and Kepford said, “Thank you ma’am.”

This appeal followed.

II. ALLOCUTION

Allocution refers to a criminal defendant’s right to speak in mitigation of the 

sentence yet to be imposed. Norton v. State, 434 S.W.3d 767, 771 (Tex. App.—Houston 

[14th Dist.] 2014, no pet.); see also Casas v. State, No. 13-21-00213-CR, 2022 WL 

551273, at *2 (Tex. App.—Corpus Christi–Edinburg Feb. 24, 2022, no pet.) (mem. op., 

not designated for publication). A defendant’s right to allocution exists as both a statutory 

and a common-law right. Vasquez v. State, 605 S.W.3d 734, 739 (Tex. App.—Houston 

[1st Dist.] 2020, no pet.); see also Vela v. State, No. 13-21-00245-CR, 2022 WL 868536, 

at *2 (Tex. App.—Corpus Christi–Edinburg Mar. 24, 2022, no pet.) (mem. op., not 

designated for publication). The statutory right, codified in Article 42.07 of the Texas Code 

of Criminal Procedure, states that “[b]efore pronouncing sentence, the defendant shall be 
3 

asked whether he has anything to say why the sentence should not be pronounced 

against him.” TEX. CODE CRIM. PROC. ANN. art. 42.07. 

However, regardless of whether the defendant asserts his statutory or commonlaw right to allocution, the issue is waived on appeal if the defendant fails to make a “timely 

request, objection, or motion” to the trial court and obtain an express or implied ruling to 

preserve error for appeal. See TEX. R. APP. P. 33.1(a); Vasquez, 605 S.W.3d at 739–40 

(concluding appellant’s allocution complaint was not preserved where there was no 

objection to the trial court’s denial of his opportunity for allocution); see also Casas, 2022 

WL 551273, at *2 (same); Vela, 2022 WL 868536, at *2 (same). Thus, a defendant who 

fails to do so forfeits his complaint on appeal. See Vasquez, 605 S.W.3d at 739–40.

Kepford did not request to speak before sentencing and did not object after the 

trial court sentenced him. Kepford did not timely communicate the allocution complaint he 

now raises on appeal. See TEX. R. APP. P. 33.1(a). Accordingly, we conclude Kepford did 

not preserve this alleged error for review. See id.; Vasquez, 605 S.W.3d at 739–40; see 

also Casas, 2022 WL 551273, at *2; Vela, 2022 WL 868536, at *2.

1 We overrule his sole 

issue. 

1 Kepford argues that the common-law right to allocution is a constitutional right that cannot be 

waived. However, this court, and several appellate courts, have held otherwise. See, e.g., Eisen v. State, 

40 S.W.3d 628, 636 (Tex. App.—Waco 2001, pet. ref’d) (holding the common-law right of allocution “did 

not achieve constitutional status” and defendant waived his during sentencing); see also Vela v. State, No. 

13-21-00245-CR, 2022 WL 868536, at *2 (Tex. App.—Corpus Christi–Edinburg Mar. 24, 2022, no pet.) 

(mem. op., not designated for publication) (following Eisen’s holding); Busbee v. State, No. 13-16-00555-

CR, 2017 WL 541133, at *4–5 (Tex. App.—Corpus Christi–Edinburg Feb. 9, 2017, no pet.) (mem. op., not 

designated for publication) (same). 
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III. CONCLUSION

We affirm the trial court’s judgment.

DORI CONTRERAS 

Chief Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed on the

8th day of February, 2024.