Willie Bernard Williams v. The State of Texas--Appeal from 291st District Court of Dallas County

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

WILLIE BERNARD WILLIAMS,

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No. 08-03-00022-CR)

Appellant,

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Appeal from)

v.

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291st District Court)

THE STATE OF TEXAS,

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of Dallas County, Texas)

Appellee.

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(TC# F-0249280-KU)
MEMORANDUM OPINION

Willie Bernard Williams appeals his conviction for possession of cocaine of between four to two hundred grams. A jury found Appellant guilty and the trial judge assessed punishment at imprisonment for a term of eight years and a $2,500 fine. We affirm.

FACTUAL SUMMARY

After Appellant was found guilty by a jury, the trial judge held a separate punishment hearing on October 30, 2002. After hearing argument by both sides, the judge inquired as to whether the Appellant had anything to say:

THE COURT: Mr. Williams, you have anything you want to say, you don't have to and I am not asking you to, but if you wanted to, you could say whatever you want to say. It is your call, I am not pressing you either way.

 

DEFENDANT: Your Honor, what I know I didn't do it.

 

THE COURT: Well, that's not the question -- the only question I have before me is what I ought to do by way of sentence, which can be anywhere -- based on your plea of true, it is anywhere from a minimum of five years in the penitentiary up to 99 years or life. I understand your position is that you believe under the law you wouldn't be guilty but that's not what the jury said. Was there anything else you want to say?

 

DEFENDANT: No, that's it, Judge.

 

THE COURT: All right. Fine. Thank you, Mr. Williams.

 

The formal sentencing document contains the following recital:

 

THEREUPON THE SAID DEFENDANT WAS ASKED BY THE COURT WHETHER HE HAD ANYTHING TO SAY WHY SAID SENTENCE SHOULD NOT BE PRONOUNCED AGAINST HIM, AND HE ANSWERED NOTHING IN BAR THEREOF, AND IT APPEARING TO THE COURT THAT THE DEFENDANT IS MENTALLY COMPETENT AND UNDERSTANDING OF THE PROCEEDINGS.

 
RIGHT TO ALLOCUTION

In his sole point of error, Appellant argues that the trial court erred in failing to inquire if there were any reason he could not be sentenced at that time. The 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 Chapter 46B; 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. 2004). Appellant contends that the statute's language is mandatory and that he was prejudiced by the trial court's failure to follow the procedure. He also claims that although the clerk's record reflects that Appellant was asked if he had anything to say, the reporter's record shows otherwise.

The Court of Criminal Appeals has heard at least two cases with facts similar to the case at bar. See Graham v. State, 498 S.W.2d 197, 198 (Tex.Crim.App. 1973); Tenon v. State, 563 S.W.2d 622, 623 (Tex.Crim.App. 1978). As in those cases, Appellant made no objection to the court's failure to inquire if he had anything to say why the sentence should not be pronounced against him. See Graham, 498 S.W.2d at 198; Tenon, 563 S.W.2d at 623. In addition, Appellant made no contention in his brief or at sentencing that any of the reasons denoted in Article 42.07 were applicable to his case. See Tenon, 563 S.W.2d at 623.

Moreover, while the record does not indicate that the judge specifically asked Appellant as to whether "he ha[d] anything to say why the sentence should not be pronounced against him," the judge did ask generally if he had anything to say. [Emphasis added.] Tex.Code Crim.Proc.Ann. art. 42.07 (Vernon 2003). As stated by the Court in Tenon:

Surely appellant would not have this court reverse this cause and order a new sentencing so that when the court asks [him] if [he] has anything to say why sentence should not be pronounced against [him he] can then answer 'Nothing.'

 

Tenon, 563 S.W.2d at 623. Point of Error One is overruled. We affirm the judgment of the trial court.

 

March 18, 2004 ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

 

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