NOS. & ---------------- IN THE COURT OF CRIMINAL APPEALS 

KEITH DWAYNE JONES PETITIONER 

vs. 

THE STATE OF TEXAS RESPONDENT 

On appeal from cause numbers 14-14-00733-CR & 14-14-00734-CR 

In the Fourteenth Court of Appeals and cause numbers 1329499 & 

1325864 in the 228th District Court of Harris County, Texas 

PETITION FOR DISCRETIONARY REVIEW 

KEN GOODE 

P.O.Box 590947 

Houston, Texas 77259 

(409) 779-3631 

State Bar # 08143200 

Goodedkc@msn.com 

PD-0917-15 & PD-0918-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/20/2015 10:18:23 AM

Accepted 7/22/2015 4:13:40 PM

ABEL ACOSTA

CLERK
STATEMENT REGARDING ORAL ARGUMENT 

Petitioner waives oral argument. 
IDENTIFICATION OF THE PARTIES 

Keith Dwayne Jones 

TDCJ-ID 

Huntsville, Texas 

Eric Davis 

2028 Buffalo Terrace, 

Houston, Texas 

Aaron Chapman & Paul Fortenberry 

1201 Franklin 

Houston, Texas 

Hon. Marc Carter 

1201 Franklin 

Houston, Texas 

Ken Goode 

P.o. Box 590947 

Houston, Texas 

Devon Anderson 

1201 Franklin 

Houston, Texas 

Petitioner 

Trial Defense Attorney 

Trial Prosecutors 

Trial Judge 

Appellate Attorney 

Appellate D.A. 
TO THE HONORABLE COURT OF CRIMINAL APPEALS: 

Comes Now Keith Dwayne Jones, petitioner, and files this petition for 

discretionary review and in support shows as follows: 

STATEMENT OF THE CASE 

Petitioner was charged by two indictments with aggravated robbery. He 

pleaded guilty and the trial court assessed concurrent 25 year sentences. 

STATEMENT OF PROCEDURAL HISTORY 

In an opinion dated July 16, 2015 the Fourteenth Court of Appeals affirmed 

the convictions and sentences. 

No motion for rehearing was filed. 
TABLE OF CONTENTS 

Statement of the Case............................................................................. 1 

Statement of Procedural History.............................................................. 1 

Ground for Review 

WHETHER THE LOWER COURT ERRED BY HOLDING THAT THE 

RIGHT TO ALLOCUTION IS WAIVED BY A FAILURE OF THE 

DEFENDANT TO OBJECT OR DEMAND A RIGHT TO SPEAK PRIOR 

TO THE IMPOSITION OF SENTENCE. 

Argument...................................................................................................... 2 

Prayer for Relief...... ............... ............ ...... ......... ......... ...... ......... ...................... 3 

Certificate of Service....................................... ....................................... .......... 3 

Certificate of Word Compliance.................................................................... 4 
INDEX Of AUTHORITIES 

CASE 

Marin v. State, 

851 SoW.2d 275 (Tex. Crim. App. 1993} ............................. 0................ 2 

STATUTE 

Tex. Code Crim. Pro. Ann. art. 42.07............................................................... 2 
GROUND FOR REVIEW 

WHETHER THE COURT OF APPEALS ERRED BY HOLDING THAT 

THE RIGHT TO ALLOCUTION IS WAIVED BY A FAILURE OF THE 

DEFENDANT TO OBJECT OR DEMAND A RIGHT TO SPEAK PRIOR 

TO THE IMPOSITION OF SENTENCE. 

ARGUMENT 

I. 

On appeal petitioner argued that the trial court erred by not complying with 

article 42.07 of the Texas Code of Criminal Procedure, which requires the trial 

judge to ask a defendant whether he has anything to say as to why sentence 

should not be pronounced against him. 

Citing cases which pre-date this court's decision in Marin v. State, 851 

S.W.2d 275 (Tex. Crim. App. 1993), the lower court held that petitioner's right to 

allocution was waived because petitioner did not assert a timely objection. 

II. 

Petitioner contends, as he did in the lower court, that his right to allocution 

is either an "absolute requirement" or at a minimum a "right which must be 

implemented unless expressly waived." Id. at 279-80. 

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Petitioner believes that his failure to speak up was not sufficient to render 

his right to allocution forfeited. 

Review is warranted so that this court can examine the right to allocution in 

light of its holding in Marin. 

PRAYER FOR RELIEF 

WHEREFORE, petitioner prays that his ground for review be 

granted. 

Respectfully submitted, 

/S/ _______ _ 

KEN GOODE 

P.O.Box 590947 

Houston, Texas 77259 

(409) 779-3631; SBN 08143200 

CERTIFICATE OF WORD COUNT COMPLIANCE 

Relying on the word count function in the word processing software used to 

produce this document I certify that the number of words used in this petition for 

discretionary review is 700. 

/S/ __________ _ 

KEN GOODE 

3 
CERTIFICATE OF SERVICE 

I certify that a true and correct copy of the foregoing was delivered to the 

State and the State Prosecuting Attorney this 17th day of July 2015 by first class 

mail. 

/5/ _______ _ 

KEN GOODE 

4 
Affirmed and Memorandum Opinion filed July 16,2015. 

In The 

1Jiourteeutl1 otoud of Appeals 

NO. 14-14~00733-CR 

NO. 14-14-00734-CR 

KEITH DWAYNE JONES, Appellant 

v. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 228th District Court 

Harris County, Texas 

Trial Court Cause Nos. 1329499 & 1325864 

MEMORANDUM OPINION 

In these combined appeals appellant Keith Dwayne Jones challenges the 

sentences imposed following his convictions on two counts of aggravated robbery. 

Concluding appellant failed to preserve his complaints for appellate review, we 

affirm the judgments in both cases. 
I. FACTUAL AND PROCEDURAL BACKGROUND 

Appellant was charged in two indictments with two separate instances of 

aggravated robbery. Appellant pleaded "guilty" to each indictment. The trial court 

imposed two sentences of 25 years' confinement and ordered the sentences to run 

concurrently.l 

U. ANALYSIS 

A. Did appellant preserve for appellate review his complaints that the 

trial court imposed a sentence that violated his federal and state 

rights to freedom from cruel and unusual punishment? 

In issues one and two, appellant asserts the trial court abused its discretion 

by imposing sentences that violate his federal and state constitutional rights to be 

free from cruel and unusual punishment. See U.S. Const. amend. VII; Tex. Const. 

art. I, § 13. Appellant argues that the 25-year sentences are grossly 

disproportionate to the offenses underlying the convictions. The State asserts that 

appellant has not preserved this complaint for appeal because he failed to raise 

these objections in the trial court. 

The Eighth Amendment to the United States Constitution requires that a 

criminal sentence be proportionate to the crime for which a defendant has been 

convicted. Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 

637 (1983). Article I, Section 13 of the Texas Constitution provides that 

"Excessive bail shall not be required, nor excessive fines imposed, nor cluel or 

unusual punishment inflicted." Tex. Const. art. I, § 13. Both of these 

constitutional rights to be free from cruel and unusual punishment may be waived. 

See Nicolas v. State, 56 S.W.3d 760, 768 (Tex. App.-Houston [14th Dist.] 2001, 

1 After appellant's counsel filed a brief on appellant's behalf, appellant filed a pro se brief 

raising two issues. We do not address these issues because appellant has no right to hybrid 

representation. See Marshall v. State, 210 S.W.3d 618, 620 n.l (Tex. Crim. App. 2006). 

2 
pet. refd); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.-Texarkana 1999, 

no pet.). To preserve for appellate review a complaint that a sentence is grossly 

disproportionate or constitutes cruel and unusual punishment, a defendant must 

present to the trial court a timely request, objection, or motion stating specific 

grounds for the ruling desired. Tex. R. App. P. 33.l(a); Rhoades v. State, 934 

S.W.2d 113, 120 (Tex. Crim. App. 1996); Nicolas, 56 S.W.3d at 768. Failing to do 

so results in waiver of the complaint. 

Appellant did not raise a timely objection to the sentences imposed in the 

trial court, nor did he raise the issue in a motion for new trial. Because appellant 

failed to object to the sentences in the trial court, appellant has not preserved error 

on his claim that the sentences violate his federal and state constitutional rights to 

be free from cruel and unusual punishment. See Nicolas, 56 S.W.3d at 768. 

Accordingly, appellant's first and second issues are overruled. 

B. Did appellant preserve for appellate review his complaint that the 

trial court violated his right to allocution? 

In his third issue, appellant asserts that in each case the trial court violated 

his right to allocution under article 42.07 of the Texas Code of Criminal Procedure 

by failing to ask him whether he had anything to say as to why sentence should not 

be pronounced against him. Appellant contends that the trial court's failure to 

make the inquiry constitutes a denial of the right of allocution and that his 

sentences are void in light of the trial court's failure. Appellant further asserts that 

he did not need to preserve error in the trial court on this issue because (1) the 

punishment hearing concluded immediately after the trial court pronounced the 

sentences and appellant had no opportunity to speak up, and (2) the right of 

allocution is a fundamental right that either must be waived expressly or is not 

subject to waiver. 

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Aliicle 42.07, entitled "Reasons to prevent sentence," provides: 

Before pronouncing sentence, the defendant shall be asked whether he 

has anything to say why the sentence should not be pronounced 

against him. The only reasons which can be shown, on account of 

which sentence cannot be pronounced are: 

That the defendant has received a pardon from the proper authority, 

on the presentation of which, legally authenticated, he shall be 

discharged. 

That the defendant is incompetent to stand trial; and if evidence be 

shown to support a finding of incompetency to stand trial, no sentence 

shall be pronounced, and the court shall proceed under Chapter 46B; 

and 

When a person who has been convicted escapes after conviction and 

before sentence and an individual supposed to the same has been 

alTested he may before sentence is pronounced, deny that he is the 

person convicted, and an issue be accordingly tried before a jury, or 

before the court if a jury is waived, as to his identity. 

Tex. Code Crim. Proc. Ann. art. 42.07 (West, Westlaw through 2013 3d C.S.). 

To preserve elTor for appeal, a party is required to make a timely request, 

objection or motion to the trial court and obtain an express or implied ruling. Tex. 

R. App. P. 33.1(a). This means that the appellant, as the complaining party, had 

the responsibility of conveying to the trial court the complaint that the trial court 

failed to ask whether he had anything to say about why his respective sentences 

should not be pronounced. See Norton v. State, 434 S.W.3d 767, 771 (Tex. App.-

Houston [14th Dist.] 2014, no pet.); Demouchette v. State, 734 S.W.2d 144, 146 

(Tex. App.-Houston [1st Dist.] 1987, no pet.). 

The record reflects that after appellant's counsel presented closing 

arguments to the trial cOUli at the punishment hearing, counsel advised the court 

that appellant wanted to address the court. The trial court allowed appellant to do 

so. Appellant stated that he had given his life to Christ, earned his GED (high4 
school equivalency diploma), and had not been in trouble since being incarcerated. 

Appellant explained that he was not the same person described in the charges and 

was not thinking straight at the time of the offenses. After appellant completed his 

remarks, the trial court asked appellant if he had anything else he wanted to say 

and counsel said appellant did not. After the State's closing argument, the trial 

court pronounced the sentences. Appellant's counsel thanked the trial court and 

asked if counsel could be excused. The trial court then excused counsel. 

The trial court allowed appellant to address the court. In so doing, appellant 

did not identify any applicable statutory reason why the sentences could not be 

pronounced, nor has he pointed this court to evidence of such a reason. Moreover, 

at no time during the punishment hearing did appellant object to the trial court's 

failure to ask specifically whether appellant had anything to say as to why the 

sentences should not be pronounced against him. Appellant's failure to raise this 

complaint in the trial court waives his right to complain about it on appeal. See 

McClintick v. State, 508 S.W.2d 616,618 (Tex. Crim. App. 1974). 

Appellant, however, argues that preservation of error was not required 

because the right to allocution is a fundamental right that either cannot be waived 

or must be affirmatively waived. Appellant cites no authority for that proposition 

and our research has revealed none. To the contrary, Texas courts have held that 

the right to allocution is waived unless the defendant asserts a timely objection. 

See McClintick, 508 S.W.2d at 618; Norton, 434 S.W.3d at 771; Demouchette, 734 

S.W.2d at 146. 

Appellant also argues that he had no opportunity to object because the 

hearing ended immediately after the trial court pronounced the sentences. Even if 

the lack of opportunity were a valid excuse for failing to object in the trial cOUli, 

the record demonstrates that after the hearing ended, appellant's counsel asked to 

5 
be excused. Appellant could have lodged an objection at that time but did not. 

Because appellant did not object to the trial court's failure to ask if appellant had a 

reason the sentences should not be pronounced, this complaint is not preserved for 

appellate review. See McClinktick, 508 S.W.2d at 618; see also Norton, 434 

S.W.3d at 771; Demouchette, 734 S.W.2d at 146. Appellant's third issue is 

overruled. 

III. CONCLUSION 

Appellant has not preserved elTor on the issues he raises on appeal. Having 

found all appellate issues waived, we affirm the judgment of the trial court. 

/s/ Kern Thompson Frost 

Chief Justice 

Panel consists of Chief Justice Frost and Justices Jamison and Busby. 

Do Not Publish -TEX. R. ApP. P. 47.2(b). 

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