Hudson, Freddie Lee v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmedand Opinion filed September 18, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00912-CR

NO. 14-02-00913-CR

____________

FREDDIE LEE HUDSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris  County, Texas

Trial Court Cause Nos. 885,249 & 912,247

M E M O R A N D U M O P I N I O N

Appellant, Freddie Lee Hudson, was charged by indictment with aggravated sexual assault and sexual assault. He pleaded guilty to both charges and was sentenced to life and 20 years=imprisonment, respectively. On appeal, appellant contends the trial court denied him his right to allocution. We affirm.

Appellant lived with his girlfriend, Dorsie Calloway, and her granddaughter for several years. From the time Ms. Calloway=s granddaughter was nine or ten years old until she was about fourteen, appellant molested her on a regular basis. Appellant threatened to hurt the young girl if she told anyone what was happening. She denied appellant molested her on several occasions until she became pregnant with his baby. Appellant was then charged with aggravated sexual assault and sexual assault to which he pleaded guilty.

In two points of error, appellant contends the trial court violated his constitutional and statutory right of allocution by failing to inquire what, if anything, he had to say prior to the pronouncement of his sentences. After appellant pleaded guilty to the two offenses, a presentence investigation report (APSI@) was prepared, and the trial court conducted a hearing on the PSI. During the hearing, the following colloquy occurred:

The Court: Is there any reason I should not sentence you today? Any legal reason?

Appellant: Well, yes, ma=am.

The Court: Any legal reason, Mr. Hale?

Mr. Hale [appellant=s counsel]: No, your Honor.

The Court: Knowing of no legal reason, it is the order of this Court, Mr. Hudson, that you have been adjudicated guilty of aggravated assault of a child and sexual assault . . . .

There are but three Alegal@ reasons why sentence should not be pronounced against a defendant.[1] It appears appellant=s counsel was familiar with both the statute setting forth these reasons and his client=s reasons for contesting sentencing. There is nothing in the record before us to indicate that appellant had any legal reason to contest the pronouncement of his sentence. Appellant did not object, he filed no motion for new trial to develop his reasons, and nothing in this record demonstrates the existence of error. See Tenon v. State, 563 S.W.2d 622, 623B24 (Tex. Crim. App. 1978) (holding that any error stemming from trial court=s failure to inquire of defendant whether she had anything to say why sentence should not be pronounced against her was waived when she failed to object). Accordingly, appellant=s first and second issues are overruled.

The trial court=s judgments are affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed September 18, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

Do Not Publish CTex. R. App. P. 47.2(b).

[1] Article 42.07 of the Texas Code of Criminal Procedure 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:

1. That the defendant has received a pardon from the proper authority, on the presentation of which, legally authenticated, he shall be discharged.

2. 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 Article 46.02 of this code; and

3. When a person who has been convicted escapes after conviction and before sentence and an individual supposed to be 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 (Vernon Supp. 2003)