Affirmed and Memorandum Opinion filed July 16, 2015.

In The

Fourteenth Court 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.
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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.1

II. 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 cruel 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.1 (Tex. Crim. App. 2006).
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pet. ref’d); 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. 33.1(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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Article 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 

arrested 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 error 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 court 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 (high-
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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 court, 

the record demonstrates that after the hearing ended, appellant’s counsel asked to 
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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 error on the issues he raises on appeal. Having 

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

/s/ Kem 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).