## NUMBER 13

- 21

- 00 213

- CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

JAVIER CASAS

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

On appeal from the 214th District Court

of Nueces C ounty, Texas.



## MEMORANDUM OPINION

Before Justices Hinojosa, Tijerina, and Silva

Memorandum Opinion by Justice Silva

By a single issue, appellant Javier Casas contends that the trial court violated his

right to allocution before sentencing. We affirm.

I. B ACKGROUND

O n May 23, 2019, p ursuant to a plea agreement, Casas pleaded guilty to two

counts of sexual assault of a child, a second

- degree felony and lesser

- included offense2 of the indicted offense

. 1 See T EX

. P ENAL C ODE A NN

. §§ 22.011 ( sexual assault)

, 22.021

(aggravated sexual assault). The trial court deferred adjudication of guilt and placed

Casas on community supervision for ten years. On April 16, 2021, the State filed a motion

for revocation

, 2 alleging multiple violations of Casas ’ s community supervision conditions

,

including: fa i lure to pay court

- ordered fees; termination from the sex offender treatment

program due to “ noncompliance ” ; and possession of unreported electronic devices “ used

to view obscene material via the internet

. ”

At a hearing on June 21, 2021, Casas pleaded “ true ” to all of the State ’ s

allegations. The following colloquy

, in relevant part, transpired during punishment :

THE COURT: All right. [ Defense counsel ]

, any witnesses on

punishment?

[DEFENSE COUNSEL : ] No, Your Honor.

THE COURT: Defense, rest and close?

[DEFENSE COUNSEL : ] Yes, Your Honor.

THE COURT: All right. Argument.

[ The State presented argument

. ]

. . . .

[DEFENSE COUNSEL : ] Your Honor, I understand he violated [,] and he

understands he violated. And there is no excuse

for that. I mean, you know, he ’ s indicated to me

that he basically was using [the internet] a lot,

as we normally use it, to get directions and stuff

1 Casas was originally indicted on two counts of aggravated sexual assault of a child, a first

- degree

felony

. See T EX

. P ENAL C ODE A NN

. § 22.021 (aggravated sexual assault). The complainant is Casa s ’ s

granddaughter, who was eight year s old at the time of the offense

.

2 This was the State ’ s second motion for revocation. Following a hearing on the State ’ s first motion

for revocation, filed January 31, 2020, the trial court ordered Casas to serve a thirty

- day jail sanction.3 like that, but he understands he can ’ t be doing

that.

THE COURT: I ’ m sorry, [ Defense counsel]

, he was using the

internet to get directions?

[DEFENSE COUNSEL : ] Yes. Directions and obviously for porn. He

admits that he was looking at porn, that, you

know, he shouldn ’ t have been. But as probation

indicated, there is no evidence he was looking

at child porn and of course he denies that. But I

understand

— he understands it is a violation [,]

and I believe that the recommendation from

probation [ is ] for [Casas to attend an

intermediate sanction facility (ISF)

. 3 ] I think

that ’ s the right choice, given the fact this is, he ’ s

only had, I guess, one prior [motion to revoke,]

and he ’ s never had this kind of treatment or ISF

[c] ognitive treatment. I believe it would be the

right track for him. And, you know, I have spoken

to him [,] and he has not shied away from his

responsibility. I do note his age, Your Honor,

being 70 years old. If he were to go to prison,

you know, I know COVID is subsiding but it ’ s still

out there and it would be a death sentence for

him, I think, at his age to go out there to prison.

So I would ask that the Court follow probation ’ s

recommendation and give him the [c] ognitive

ISF treatment and that he be reinstated with

conditions that the Court feels appropriate.

THE COURT: All right. Mr. Casas, I very vividly remember this

case when it first came to our court and how it

transpired and the plea agreement and the first

motion to revoke. And I disagree with the

analysis of probation and your Defense

attorney. I see it as the continuation of the same

predator [

- ] like behavior as the one that led to the

offense in the first place. The offense of sexual

assault of a child and the age of the victim and

the fact that you are putting the words “ young

3 The community supervision officer recommended that the trial court order Casas to participate in

an ISF cognitive treatment program

. Casas previously completed ISF substance abuse treatment.4 female ” [ 4 ] and that you have Facebook in

violation of the conditions. That you are

communicating with that Facebook. That you

are watching pornography. That you are hiding

the cell phone. It ’ s the same deceptive behavior.

So at this point, having found the allegations to

be true, I am revoking your deferred

adjudication. I ’ m making an affirmative finding of

guilt of sexual assault of a child on both counts [,]

and I ’ m sentencing you to ten years in the Texas

Department of Corrections. You will receive

credit for any time you spent awaiting

disposition of your case. And you will receive

your right to appeal. Thank you. We are

adjourned on this case.

[DEFENSE COUNSEL : ] Thank you, Your Honor.

This appeal followed.

II. A LLOCUTION

By a single issue, Casas asserts that the trial court reversibly erred in denying him

an opportunity for allocution. The State argues, and we agree, that Casas failed to

preserve this issue for appeal.

“ Allocution ” is a term which carries a variety of meanings. See Enard v. State

, 513

S.W.3d 206, 21 4

– 15 n.8 (Tex. App.

— Houston [14th Dist.] 2016, pet. ref ’ d) ( observing that

“ [t] he term ‘ allocution ’ is sometimes used to refer to the defendant ’ s response and

sometimes used to refer to the court ’ s question to the defendant ” ). In this context,

however, allocution refers to the trial court affording a criminal defendant the opportunity

to speak in mitigation of the sentence yet to be imposed

. See Norton v. State

, 434 S.W.3d

4 The community supervision officer reported Casas had been searching for pornography

, using

search terms which included

, “ young first time ” and “ [y]oung Latina first suck

. ”5 767, 771 (Tex. App.

— Houston [14th Dist.] 2014, no pet.); see also Garcia v. State

, No.

13

- 19

- 00388

- CR, 2021 WL 79294, at *2 (Tex. App.

— Corpus Christi

– Edinburg Jan. 7,

2021, no pet.) (mem. op., not designated for publication). A defendant ’ s right to allocution

exists as both a statutory and a common

- law right. Vasquez v. State

, 605 S.W.3d 734,

739 (Tex. App.

— Houston [1st Dist.] 2020, no pet.) ; see also Ybarra v. State

, No. 13

- 18

-

00141

- CR, 2019 WL 3819871, at *4 (Tex. App.

— Corpus Christi

– Edinburg Aug. 15, 2019,

pet. ref ’ d) (mem. op., not designated for publication)

. As relevant here, Article 42.07 of

the Texas Code of Criminal Procedure provides that “ [b] efore pronouncing sentence, the

defendant shall be asked whether he has anything to say why the sentence should not

be pronounced against him. ” T EX

. C ODE C RIM

. P RO C

. A NN

. art. 42.07.

However, it is incumbent on a defendant

— whether in pursuance of his statutory or

common

- law right of allocution

— to make a “ timely request, objection, or motion ” to the

trial court and obtain an express or implied ruling to preserve error for appeal. See T EX

.

R. A PP

. P

. 33.1 (a) ; Vasquez

, 605 S.W.3d at 739 ; see also Ybarra

, 2019 WL 3819871, at

*4

. A defendant who fails to do so forfeits his appellate complaint. See Vasquez

, 605

S.W.3d at 739

– 40 ( concluding appellant ’ s allocution complaint was not preserved where

there was no objection to trial court ’ s denial of his opportunity for allocution) ; see also

Garcia

, 2021 WL 79294, at *2

– 3 (same) ; Ybarra

, 2019 WL 3819871, at *4 (same).

Casas was required to clearly communicate to the trial court the particular

complaint he now raises on appeal

. See T EX

. R. A PP

. P

. 33.1(a)

. Neither Casas nor his

defense counsel conveyed to the trial court that Casas wished to exercise his statutory

or common

- law right of allocution prior to the trial court ’ s pronouncement of sentencing,6 and Casas did not object after the trial court sentence d him

. Se e id. ; Vasquez

, 605 S.W.3d

at 739

– 40 (concluding that the allocution issue was unpreserved and even if the reviewing

court were to find error, appellant was not harmed because “ the right to allocution is not

a constitutional right ” ) ; see also Gay v. State

, No. 13

- 16

- 00158

- CR, 2017 WL 2705446,

at *2 (Tex. App.

— Corpus Christi

– Edinburg June 22, 2017, no pet.) (mem. op., not

designated for publication) ( concluding appellant “ has not preserved any issue for

appellate review ” where “ appellant made no objection and did not request any further

opportunity to address the trial court in mitigation of his sentence ” and observing the same

constitutional limitations )

. Casas failed to preserve this alleged error

. See T EX

. R. A PP

. P

.

33.1(a) ; Vasquez

, 605 S.W.3d at 739

– 40 . Accordingly, we overrule Casas ’ s sole issue.

III. C ONCLUSION

We affirm the trial court ’ s judgment.

CLARISSA SILVA

Justice

Do not publish.

T EX

. R. A PP

. P. 47.2 ( b ).

Delivered and filed on the

24th day of February

, 202 2

.