## NUMBER 13

- 19

- 00302

- C R

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

ALLEN BYRD

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

On appeal from the 214 th 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 T EX

. P ENAL C ODE A NN . § 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 a lleged offense. See U.S. C ONST . amend. VIII, XIV. We affirm.

I. S ELF

- R EPRESENTATION

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

consid er 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 rel evant

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 pa perwork 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 help ing 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.3 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 l ike 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 law yer

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 yo u

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.4 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 Co urt: 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 sa ying 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

licens ed 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 hav e the lawyers here for. If you would5 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 so mething 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 thi nk 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

63 4, 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 co mplained

- 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. D ISPROPORTIONATE S ENTENCE6 By his second issue, Byrd contends that his punishment is disproportionate to the

seriousness of the alleged offense. See U.S. C ONST . 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 Pro cess 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 o ffense); 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 Chri sti

– 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 T EX

. R. A PP

. P. 33.1.7 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. C ONST . amend.

VIII. Therefore, Byrd has failed to pres erve this issue for our review. See T EX

. R. A PP

. 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. C ONCLUSION

We affirm the trial court’s judgment.

JAIME TIJERINA,

Justice

Do not publish.

T EX

. R. A PP

. 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

- deg ree felony is two to twenty years’ confinement. See

T EX

. P ENAL C ODE A NN . § 12.33.