## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

N O . P D
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M I C H A E L A N T H O N Y G R A D O , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E S E V E N T H C O U R T O F A P P E A L S

O L D H A M C O U N T Y

K E L L E R , P . J . , f

i l e d a d i s s e n t i n g o p i n i o n . I would hold that appellant forf eited his complaint about punishment by failing to object at trial. I there fore respe ctfully dissent. “All but the most fundamental r ights a re thoug ht to be forfeited if not insisted upon by the party to whom they belong .” I t is true that we have said that a defe ndant’s “rig ht” to be sentenc ed 1

to a term within the define d “univer se of punishments applicable t o t h e offe nse” is absolute and

Marin v. State , 851 S.W .2d 275, 279 (Tex. Crim. App. 1993). 1GR ADO DISSENT - 2 nonwaivea

ble. But that is the rule for a sentenc e that fa lls outsi de the a pplicable statutory

rang e. 2 Appellant’s punishment was within the “univer se of punishments” applicable to his offe nse; it was neither “ illega l” nor “ void.”
I n Hull v. State , we ad d re s s ed wh ether a defe ndant could complain for the first time on 3
appea l that a judge failed to consider the full rang e of punishment. We cited to T ex as R u l e of Appellate Proc edure 33.1 for the familiar prece pt that “as a prer equisite to presenting a complaint for appellate revie w,” a timely reque st, objection or motion must be made and ruled upon by the trial
court. This rule, we said, ensure s that trial courts are provided an opportunity to corr ect their own 4
mistakes at the most convenie nt and appropr iate time—when the mistakes are alleg ed to have been made. I n Hull , the defe ndant’s complaint was that the trial judge had a “zero toleranc e” policy and,

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upon revoking Hull’s probation, he had sentenc ed Hull to the maxi mum possible punishment. We 6 held that by

failing to object, Hull had fa iled to preser ve his claim. 7
I n Ex parte Brown , the issue was the same as in Hull , but it was raised in a post-conviction writ application instead of on direc t appea l. I n that case , this Court held that Br own, who, like Hull, 8
had not objected at trial, could raise the issue for the first time on habea s. I n explaining why Br own

Speth v. State , 6 S.W .3d 530, 536, n.5 (Tex. Crim. App. 1999). 2 Hull v. State , 67 S.W .3d 215 (Tex. Crim. App. 2002). 3 Id . at 217. 4 Id

. 5 Id . at 216. 6 Id . at 218. 7 Ex parte Brown , 158 S.W .3d 449 (Tex. Crim. App. 2005). 8GR ADO DISSENT - 3 had not forf

eited his claim, the Court ref err ed to the fac t that the trial rec ord was “i n s u ff i ci ent to allow an appellate court to resolve the issue.” The Court said that Br own could raise his claim for 9
the first time on habea s beca use he neede d to g o outside the rec ord to provide evidenc e to prove his claim. One of

the three dissenting opinions noted “the odd loophole in the law” that the opinion 1 0

cr ea t ed by requiring an objection to raise the claim on direc t appea l but not on habea s. 1 1
Neve rtheless, the distinction was draw n: an unobjected- to claim that a trial judge failed to consider the full rang e of punishment may not be ra ised on direc t appea l but it may (at least sometimes) be raised post-c onviction by application for

a wr it of habea s corpus. I n this case , the Court say s, “The unfetter ed rig ht to be sentenc ed by a sentenc ing judge who
proper ly considers the entire rang e of punishment is a substantive rig ht ne cessa ry to e ffe ctuate the
proper functioning of our criminal justice sy stem.” I think this statement is inconsistent with our holding in Hull

. The judge failed to consider the entire rang e of punishment in Hull , and we s aid that Hull forfe ited his complaint by failing to object. Citi ng to Speth , the Court say s that Hull is of limit ed value beca use it involved prese rvation of error requireme nts as t hey rela te t o conditions of probation. But there was no mention of Speth in Hull

. The “zero toleranc e” policy in Hull was not a condition of probation. We called the policy “the standard by which the written conditions would be administe re d by the court and violations viewed,” b u t to the extent that that standard might be viewed as part of the “contr actua l

Id . at 453. 9 Id

. 1 0 Id. at 460 (Ke asler, J., dissenting). 1 1GR ADO DISSENT - 4 rela tionship,” we also said, “T here was plenty to object to at t he sentencing hear ing.” Although 1 2

we discussed the fac t that there was no o b j ection at any time, we pointed out that “Appe llant’s testimony at t he revoc ati o n hear ing indicated an understanding and acce ptance of t he trial court’s stated ‘z ero tolerance ’ pol icy .” Reg ardle ss of whether Hull was co n t ra ctually bound at t he ti me 1 3 probation was imposed, he was under no such impediment at the time of revoc ation, and his failure to object re sulted in forfe iture of the c laim. The Court a lso sa

y s it will not e x tend Hull to the prese nt c ase beca use at the time tha t Hull

was decide d, it was unclea r to what extent a Marin analy sis was nece ssary . The Court believes that

our more rec ent opinion in Gutierrez v. State , in w hich we held that Speth ’s broad forf eiture rule 1 4
does not apply

when the c ontested proba tion condition viol ates a cate g ory -one Marin rig ht, limit s the value of Hull . But we are not dealing with a ca teg ory -one Marin rig ht in this case. The Court holds that the rig ht in question—“the rig ht to be sentenc ed afte r consideration of the entire applicable punishment rang e”— is a cate g ory -two Marin rig ht. A cate g ory -one Ma r i n ri gh t i s one that the parties cannot ag ree t o waive. By definition, then, Speth ’s forf eiture rule would not apply to a
cate g ory -one rig ht. I do not see how Gutierrez has any bear ing on appellant’ s failure to obje ct in 1 5
this case . I t is worth reme mbering what rig hts Ma r in it s e lf d e n o minated as c ateg ory -two rig hts.
T h ey we re assistance of counsel and the rig ht to a jury trial, both of which are g uara nteed by t h e

Hull , 67 S.W .3d at 217. 1 2 Id . at 218 (e mphasis added)

. 1 3 380 S.W .3d 167, 175 (Tex. Crim. App. 2012). 1 4
Even a cate g ory -one rig ht is su b j ec t t o es t oppel, howeve r. See Saldano v. State , 70 1 5 S.W .3d 873, 888 (Tex. Crim. App. 2002).GR ADO DISSENT - 5 Six th Amendment. I n my v i ew , the right to consideration of t he full rang e of punishment is not 1 6
of t he same nature or st atus as t hese two rig hts. I simply do not see the justificati o n for affor ding
cate g ory -two status to the err or in this case. Finally , defe nse counsel made a mistake. I f appellant is entitled to relief, he has a reme dy by way of an ine ffe ctive assistanc e of c ounsel claim. F or these r easons, I respe ctfully

dissent. Filed: Oc tober 15, 2014 Publis h

“I n all criminal prosec utions, the acc used shall enjoy the rig ht to a speedy and public trial,

1 6 by an im partial jury of the State a nd district where in the crime sha ll have bee n committed . .

. and to have the a ssistance of c ounsel for his def ence .”