NUMBER 13-19-00302-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ALLEN BYRD, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 214th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Perkes, and Tijerina

Memorandum Opinion by Justice Tijerina

Appellant Allen Byrd appeals from the trial court’s revocation of his community 

supervision.1 By two issues, Byrd contends that the trial court violated his constitutional 

1 Pursuant to a plea agreement with the State, Byrd at a previously held proceeding pleaded guilty 

to indecency with a child by sexual contact, a second-degree felony. See TEX. PENAL CODE ANN. § 21.11. 
2

rights “when it unnecessarily discouraged [him]” from representing himself at the 

revocation hearing and the punishment assessed was disproportionate to the seriousness 

of the alleged offense. See U.S. CONST. amend. VIII, XIV. We affirm.

I. SELF-REPRESENTATION

By his first issue, Byrd contends that the trial court improperly discouraged him 

from representing himself at the revocation hearing by giving Byrd five minutes to 

consider whether he wanted to represent himself. Specifically, Byrd argues that instead 

of allowing him time to think about whether he wanted to represent himself, the trial court 

“should have moved on with the hearing and allow[ed] [him] to present whatever relevant 

evidence or argument he thought the court should consider during the findings and 

disposition phase of the MTR.”

At the revocation hearing, the following colloquy occurred:

[Byrd]: I have spoken with [my trial counsel] and his ideals and mine 

are not quite the same. He seems to not want to present 

the case the way I need it presented because it’s a motion to 

revoke. And the grounds that I have are pretty much and I 

have got my paperwork I would like to have filed with the Court 

and for you to look at my motions and to rule on them because 

that decides which way it goes.

The Court: Okay. Mr. Byrd, let me explain something to you—

[Byrd]: I’m sorry, I didn’t mean to interrupt.

The Court: I’ll wait.

[Byrd]: Well, the way I understood it that the person has a right to 

defend himself as his own counsel or to have assistance that 

is a Constitutional protection. Okay. Now, I have a gentlemen 

[sic] that is my, that has been helping me out with the case 

that I assume that is very knowledgeable about the law and 

The trial court deferred adjudication and placed Byrd on community supervision. At this proceeding, the 

trial court sentenced Byrd to three years’ confinement.
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has helped me out. Where, this gentlemen [sic] here all he 

wants to do is talk to the prosecutor and work some type of 

deal out when I am not guilty. And what I would like to do is 

present my evidence and then we can go from there. That’s—

I just want, as you know, Your Honor, this has been going on 

for 2 years, off and on. I have come into your courtroom when 

I first had this case. When this first case was on. My lawyer 

was [previous trial counsel] and I had him as a lawyer when 

the whole time I am the one, I guess you could call/say 

whistleblower. I am the one that wrote as you know to you, to 

the Bar Association about his conduct. I could not do anything 

about what I had—that plea I had taken as in the plea 

agreement as to take 5 years deferred because of his actions 

of fraud and deception practices which I have filed a complaint 

with the clerk.

I have also filed a motion because of fraud and deceptional 

practices with your clerk and also several other motions that I 

would like for you to look at and to rule on in order to even 

go—and I asked for a seize [sic] and assist [sic] order on the 

motion or the motion to revoke on the simple fact of this. If you 

would allow to read my motion then you would understand 

where I am going with this.

The Court: If you allow me to respond.

[Byrd]: Yes, ma’am.

The Court: The first question, [your previous trial counsel] was not 

appointed by this Court, correct?

[Byrd]: No ma’am, he was not.

The Court: You retained [your previous trial counsel]?

[Byrd]: Yes, ma’am.

The Court: Second, I know you, sir are not an attorney.

[Byrd]: No ma’am.

The Court: So you are not aware that certain parts of the representation 

are dependent upon the client and certain part of the 

representation are strategic decision based on the lawyers 

decision making and experience.
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Third of all, you said that you have a friend who is assisting 

you with this case, correct?

[Byrd]: Yes, ma’am.

The Court: Is you friend an attorney?

[Byrd]: He is a history of law, is all I know.

The Court: It’s a very simple question.

[Byrd]: He is not a Bar Association lawyer, no.

The Court: So, let me explain something else to you. Before you 

incriminate that person in unlawful practice of the law which is 

an actual offense.

[Byrd]: So, what you are saying is you have to be a bar attorney in 

order to practice law?

The Court: I’m saying to practice law you must be a lawyer. To represent 

somebody you must be a lawyer.

[Byrd]: And a lawyer is a Bar Association lawyer or somebody—

The Court: At this point you asking me for legal advice and I—

[Byrd]: No ma’am. For clarification—

The Court: And I cannot do that.

So, you and I can’t speak at the same time because the court 

reporter is taking it down. So I am going to give you an 

opportunity to speak.

[Byrd]: For clarification, ma’am. The Bar Association, from what I 

understand, didn’t even come into play in the State of Texas 

until 1939. What did they do before 1939, I mean, was it just 

a lawyer? I mean, if you are studying law and I know that you 

saw—so what are you saying is that these lawyers are 

licensed by the State to practice law or I mean how are they—

what’s their authorization, I mean.

The Court: So, this is a very basic legal question. Again, you are asking 

me for a legal question. As a Judge I am not allowed to answer 

that, that’s what we have the lawyers here for. If you would 
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like to fire your attorney, you may do so. And you do have a 

right to represent yourself. So, if you would like to go against 

an attorney licensed in the State of Texas, you are more than 

free to do so. Did I say something funny?

[Byrd]: No ma’am. This is not what I read in the law books, but I am 

not a lawyer.

The Court: I know that. [Your current trial counsel] is. So was [your two 

previous trial counsel].

[Byrd]: Okay. Can I have a little bit of time to think about this?

The Court: About 5 minutes.

[Byrd]: 5 minutes will be fine, I guess.

The trial court took a brief recess. When the trial court called the case, the trial 

court asked, “Mr. Byrd, at this time, are you proceeding with the representation of [your 

current trial counsel]?” Byrd responded, “Yes, ma’am.”

“The law of invited error provides that a party cannot take advantage of an error 

that it invited or caused, even if such error is fundamental.” Woodall v. State, 336 S.W.3d 

634, 644 (Tex. Crim. App. 2011). The complaining party is thus “estopped from seeking 

appellate relief based on error that it induced” and “[t]o hold otherwise would be to permit 

him to take advantage of his own wrong.” Id.

Byrd requested time to think about whether he wished to fire his trial counsel. And 

when the trial court offered him five minutes, Byrd agreed. Byrd affirmatively requested 

and agreed with the action of the trial court that he now claims was erroneous. Therefore, 

because Byrd sought the complained-of action, even if it was error for the trial court to 

grant him time to think about his options, Byrd is estopped from complaining about it on 

appeal. See id. We overrule Byrd’s first issue.

II. DISPROPORTIONATE SENTENCE
6

By his second issue, Byrd contends that his punishment is disproportionate to the 

seriousness of the alleged offense. See U.S. CONST. amend. VIII, XIV. The State 

responds that Byrd failed to preserve this issue because he did not object in the trial court.

The Eighth Amendment of the United States Constitution provides that “[e]xcessive 

bail shall not be required, nor excessive fines, nor cruel and unusual punishment inflicted.” 

Id. amend. VIII. The Eighth Amendment applies to punishments imposed by state courts 

through the Due Process Clause of the Fourteenth Amendment. Id. amend. XIV. This 

right and every constitutional or statutory right can be waived by a “failure to object.” Smith 

v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); Kim v. State, 283 S.W.3d 473, 475 

(Tex. App.—Fort Worth 2009, pet. ref’d); Noland v. State, 264 S.W.3d 144, 151–52 (Tex. 

App.—Houston [1st Dist.] 2007, pet. ref’d) (concluding that by failing to object the 

appellant did not preserve an argument that the sentence was grossly disproportionate 

to the offense); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, 

no pet.) (same); Smith v. State, 10 S.W.3d 48, 49 (Tex. App.—Texarkana 1999, no pet.) 

(same); see Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (“As a general 

rule, an appellant may not assert error pertaining to his sentence or punishment where 

he failed to object or otherwise raise such error in the trial court.”). To preserve a 

complaint of improper sentencing, the criminal defendant must make a timely, specific 

objection to the trial court or raise the issue in a motion for new trial. Kim, 283 S.W.3d at 

475; Noland, 264 S.W.3d at 151–52; Trevino v. State, 174 S.W.3d 925, 927–28 (Tex. 

App.—Corpus Christi–Edinburg 2005, pet. ref’d); Quintana v. State, 777 S.W.2d 474, 479 

(Tex. App.—Corpus Christi–Edinburg 1989, pet. ref’d) (holding defendant waived cruel 

and unusual punishment argument by failing to object); see TEX. R. APP. P. 33.1.
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Here, Byrd neither objected when the trial court pronounced the three-year 

sentence nor complained, in any post-trial motion, that the sentence was 

disproportionate, excessive, or violated the Eighth Amendment. See U.S. CONST. amend. 

VIII. Therefore, Byrd has failed to preserve this issue for our review. See TEX. R. APP. P. 

33.1; Kim, 283 S.W.3d at 475; Noland, 264 S.W.3d at 151-52; Trevino, 174 S.W.3d at 

927–28; Quintana, 777 S.W.2d at 479. Moreover, even had Byrd objected, a punishment 

falling within the limits prescribed by a valid statute, as in this case, is not excessive, cruel, 

or unusual.2 See Trevino, 174 S.W.3d at 928. We overrule Byrd’s second issue.

III. CONCLUSION

We affirm the trial court’s judgment.

JAIME TIJERINA,

Justice

Do not publish.

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

Delivered and filed the

30th day of April, 2020.

2 As previously noted, Byrd pleaded guilty to a second-degree felony and received a three-year 

sentence. The range of punishment for a second-degree felony is two to twenty years’ confinement. See

TEX. PENAL CODE ANN. § 12.33.