1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00096-CR 

NO. 09-22-00097-CR

__________________

DYLAN GAUVIN, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 435th District Court

Montgomery County, Texas

Trial Cause Nos. 20-03-03470-CR and 20-03-03473-CR

__________________________________________________________________

MEMORANDUM OPINION

After Dylan Gauvin pleaded guilty, the trial court conducted a 

punishment hearing on trial court causes 20-03-03470-CR and 20-03-

03473-CR, which resulted in Gauvin receiving concurrent, 15-year 
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sentences. Gauvin’s convictions are based on indictments charging him 

with committing two robberies on March 9, 2020.1

Gauvin appealed. In Gauvin’s first issue, he asserts that despite the 

failure of the attorney who represented him in his trial to object to the 

prosecutor’s closing argument, the prosecutor argued facts outside the 

record and mischaracterized other “key facts in this case,” which he 

argues harmed him by adversely affecting his sentence. According to 

Gauvin, had the prosecutor not made the improper arguments, the trial 

court would probably have given him a more lenient sentence. In 

Gauvin’s second issue, he argues that when conducting his punishment 

hearing, the trial court failed to expressly pronounce that Gauvin had 

used a deadly weapon when he committed the robberies. 

For the reasons explained below, we conclude Gauvin’s issues lack 

merit. We will affirm. 

Background

Given the limited scope of the issues that Gauvin has raised in his 

appeal, we limit our discussion of the background to the information 

1Tex. Penal Code Ann. § 29.03(a)(2).
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required to explain the Court’s resolution of the arguments Gauvin has 

relied on to support the point of error her raised in his appeal. 

In March 2020, the State indicted Gauvin for committing two 

aggravated robberies, alleging that he committed both robberies on or 

about March 9, 2020. Both indictments allege that Gauvin used a deadly 

weapon in committing the robberies. As to the deadly weapon allegation

in the respective indictments, they each state: “. . . and the defendant did 

then and there use or exhibit a deadly weapon, to-wit: a firearm[.]” 

After Gauvin signed judicial confessions in the two cases, which 

were based on a plea agreement, Gauvin appeared in court and pleaded 

guilty as charged to the allegations in the indictments. In the judicial 

confessions that Gauvin signed, which are in the Clerk’s Record, Gauvin 

elected to have the trial assess his punishment. 

In February 2023, the trial court conducted a punishment hearing

to assess Gauvin’s sentences. Seventeen witnesses were called as 

witnesses in the two-day hearing, eight by the State and nine by Gauvin. 

On appeal, Gauvin relies on three arguments to support his first issue, 

which asserts the prosecutor mischaracterized certain “key facts” in 
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closing argument. First, he claims that when the prosecutor made the 

following argument, he “mischaracterize[d] key facts[:]”

In this case, I found it very, very sad that [two individuals 

that Gauvin robbed and who testified in Gauvin’s punishment 

hearing] are just two blue-collared guys working a minimum 

wage job through COVID and they had a gun put in their face 

and when they came to testify, it’s almost expected that if they 

were going to do that job, that, that’s something they would 

encounter. I mean, they didn’t have a lot of emotion because 

for them, that’s part of it. If you work as a clerk at a gas 

station, you are going to get robbed. Hopefully, they just take 

the cash from the register and not the car [that was owned by 

the gas station’s clerk].

Second, Gauvin claims that in rebuttal, the prosecutor made 

another argument, also unsupported by the facts in the record. As to that 

claim, Gauvin points to the prosecutor’s argument, “it wasn’t a drugfueled crime that they [Gauvin] would have you believe. That’s not what 

happened. He was making those decisions.” In his brief, Gauvin argues 

that the record contains “uncontradicted testimony” that shows Gauvin

“was on marijuana, percocets, and promethazine” when the robberies 

occurred. He also relies on testimony elicited in the hearing from his 

father, who testified that when Gauvin committed the robberies, he was 

“‘probably under some influence’. . . because this is not what we taught 

him growing up.”
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Gauvin’s attorney didn’t object to any parts of the prosecutor’s

closing argument, including any argument the prosecutor presented 

during rebuttal. After the parties completed their arguments, the trial 

court advised the parties that after considering the evidence, the 

seriousness of the crimes, the impact it had on the victims, the age of the 

defendant, the defendant’s presentence-investigation report, and the

forms and letters submitted to the court, “it is the order of the Court that 

you will receive a 15-year sentence on each cause. They shall run 

concurrent. There is an affirmative finding as to the deadly weapon 

which will have a bearing on that sentence[.]” That same day, the trial 

court signed the judgments of conviction. The judgment in both cases

contain an affirmative finding that Gauvin used a firearm when he 

committed the offense.

Analysis

Closing Argument 

In Gauvin’s first issue, he complains that in closing argument, the 

prosecutor “improperly argued facts not in evidence.” According to 

Gauvin, the arguments the prosecutor made were either not based on 

facts supported by the evidence, or they mischaracterized the testimony 
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that was properly before the court and admitted into evidence during 

Gauvin’s punishment hearing. 

As mentioned, however, Gauvin didn’t object to the prosecutor’s 

arguments. As a prerequisite to presenting a complaint for appellate 

review, the record must show the complaint was made to the trial court 

in a timely request, objection, or motion.2 “[A] defendant’s failure to object 

to a [closing] argument . . . forfeits his right to complain about the 

argument on appeal.”3

Gauvin concedes he failed to object to the arguments that he made 

the subject of his first issue, but he argues under the holding in Janecka 

v. State, we must nonetheless reach his complaint about the prosecutor’s 

allegedly improper argument because the prosecutor’s arguments, he 

claims, resulted in causing “egregious harm.”4 We disagree. 

2Tex. R. App. P. 33.1(a); Hernandez v. State, 538 S.W.3d 619, 622 

(Tex. Crim. App. 2018). 

3Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); 

Hernandez, 538 S.W.3d at 622. 4Janecka v. State, 937 S.W.2d 456, 474 (Tex. Crim. App. 1996). 
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Nearly two decades ago in Estrada v. State, the Court of Criminal 

Appeals rejected an argument like the one Gauvin relies on here.5 In 

Estrada, the Court of Criminal Appeals said:

[A]ssuming, as appellant argues, that the prosecution’s 

argument is so egregious that no instruction to disregard 

could possibly have cured the harm, then appellant should 

have moved for a mistrial to preserve the error.6

If any question remained about whether the usual rules of error 

preservation apply to preserve the right to complain on appeal about an 

opposing party’s allegedly improper closing argument, the Court of 

Criminal Appeals answered that question eight years later in Hernandez 

v. State, 538 S.W.3d 619, 623 (Tex. Crim. App. 2018). In Hernandez, the 

appellant argued that even though he failed to properly preserve his 

complaint about the prosecutor’s closing argument, the reviewing court 

should “hold that error preservation was not required here due to the 

egregious nature of the prosecutor’s argument.”7 Responding to that 

argument, the Court of Criminal Appeals explained the usual rules of 

5Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010) 

(cleaned up).

6Id. 7Hernandez v. State, 538 S.W.3d at 623.
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error preservation still apply to errors that may be corrected because a 

defendant’s right to have a trial free from error is not an absolute 

requirement like jurisdiction, which is a requirement that unlike other 

rights cannot be waived.8 In rejecting essentially the same argument that 

Gauvin asks us to accept, the Hernandez Court held: “Erroneous jury 

argument must be preserved by objection pursued to an adverse ruling; 

otherwise, any error from it is waived.”9

Gauvin concedes the attorney who represented him at trial didn’t 

object to the prosecutor’s closing argument. As an intermediate court, we 

are required to follow binding precedent in cases decided by the Court of 

Criminal Appeals.10 Because Gauvin waived his right to raise the 

arguments on which he relies to support his first issue, the issue is 

overruled. 

8Id. (citing Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 

1993)).

9Id. 10See Tex. Const. art. V, § 5(a) (providing that the Texas Court of 

Criminal Appeals is the final authority regarding matters of criminal 

law); State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006), aff’d 

sub nom. State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007).
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Deadly-Weapon Finding 

In issue two, Gauvin complains “there was never an express deadly 

weapon finding” in either the hearing the trial court conducted to accept 

his plea or to assess his punishment. Gauvin asks the Court to reform 

the judgment and to delete the deadly weapon finding from the trial 

court’s judgment. We decline to do so for two reasons. 

First, we conclude the trial court made an express determination 

that Gauvin used a deadly weapon in committing the robberies. 

Generally, “[a]n affirmative deadly weapon finding must be an ‘express’

determination in order to be effective.”11 Gauvin argues the trial court 

did not expressly find that he used or exhibited a deadly weapon in the 

proceedings on his plea or when it assessed his sentence. The State, 

however, disagrees and points to the following language in the 

punishment hearing as the trial court’s “affirmative finding” on the 

allegation in the indictments that Gauvin used a deadly weapon when he 

committed the robberies, noting the trial court said in sentencing Gauvin: 

11Guthrie-Nail v. State, 506 S.W.3d 1, 4 (Tex. Crim. App. 2015). 
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“There is an affirmative finding as to the deadly weapon which will have 

a bearing on that sentence[.]”

In response to the State’s argument, Gauvin contends that the trial 

court didn’t make the above statement as an “affirmative finding[;]”

instead, he claims the trial court’s statement “appears to be referencing 

a deadly weapon finding[,]” which he claims the trial court mistakenly 

thought it made six months earlier in the hearing it conducted when it 

accepted Gauvin’s guilty plea. 

In our view, Gauvin is mistaken about the effect we must give to 

the statement the trial court made in the sentencing hearing, which was 

“[t]here is an affirmative as to the deadly weapon which will have a 

bearing on that sentence[.]” To be fair, the trial court could have made 

the statement in a way that would have left no doubt about how the trial 

court intended it’s statement to be interpreted. For example, the trial 

court could have said something like—as to the indictments in trial court 

cause numbers 20-03-03470-CR and 20-03-03473-CR, I am finding that 

when Gauvin committed the offenses, he used or exhibited a deadly 

weapon as alleged in those two indictments.
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But even though the trial court could have been clearer, construing 

the trial court’s statement as an affirmative deadly weapon finding to the 

deadly weapon allegations in Gauvin’s indictments is consistent with the 

judgments the trial court signed, particularly since the trial court signed 

them the same day it conducted Gauvin’s the hearing in which it 

determined Gauvin’s punishment. Thus, when considered as a whole, the 

record doesn’t support Gauvin’s theory the statement should be 

construed as a mistaken reference to some earlier affirmative finding,

one that even Gauvin concedes the trial court did actually make when 

accepting Gauvin’s plea. 

Second, if the record didn’t contain an express finding (and it does), 

the record in this case satisfies the “less explicit language” alternative 

that substitutes for the express determination requirements under the 

jurisprudence of the Court of Criminal Appeals.12 Here, deadly-weapon 

allegations are included in both Gauvin’s indictments. He signed a 

judicial confession in each case, pleading guilty to the allegations of 

aggravated robbery “as charged by the indictment[s]”. The indictments 

12Id. 
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allege that in the course of committing the thefts and with intent to 

obtain or maintain control of the property, Gauvin intentionally or 

knowingly threatened the respective victims of the robberies by placing 

them “in fear of imminent bodily injury or death, and the defendant did 

then and there use or exhibit a deadly weapon, to wit: a firearm[.]” The 

hearing on Gauvin’s plea shows that in both cases, Gauvin pleaded guilty 

to the charges of aggravated robbery in trial court cause numbers 20-03-

03470-CR and 20-03-03473-CR.

Thus, the record before us satisfies both the express determination 

requirement, and the conditions needed to satisfy the “less explicit 

language” alternative established by the Court of Criminal Appeals.13

“[I]n a bench trial, a trial judge need not include a deadly-weapon finding 

in the oral pronouncement of judgment; if the charging instrument 

alleged a deadly weapon, the finding may be included for the first time in 

a written judgment.”14 The deadly weapon allegation is included in each 

indictment here. 

13Id.; see also Ex Parte Huskins, 176 S.W.3d 818, 821 (Tex. Crim. 

App. 2005).

14Guthrie-Nail, 506 S.W.3d at 4.
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For all these reasons, we overrule Gauvin’s second issue.

Conclusion

Because Gauvin’s issues were either not preserved or lack merit, 

the judgments in trial court causes 20-03-03470-CR and 20-03-03473-CR

are

AFFIRMED.

HOLLIS HORTON

Justice

Submitted on August 4, 2023

Opinion Delivered September 13, 2023

Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.