DANIEL JESUS BROWN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued April 23, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00816-CR
No. 05-07-00817-CR
No. 05-07-00818-CR
............................
DANIEL JESUS BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F06-44654-PUW, F04-50620-HUW, and F06-61276-WTW
.............................................................
OPINION
Before Chief Justice Thomas and Justices Moseley and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant was charged with possession of cocaine in an amount less than one gram, possession with intent to deliver cocaine in an amount more than 400 grams, and capital murder. The possession with intent charge was reduced to possession of cocaine in an amount over 400 grams and the capital murder was reduced to aggravated robbery.
        Appellant pleaded guilty to all three charges. In support of appellant's guilty pleas, the State offered, and the trial court admitted without defense objection, appellant's signed, written, judicial confessions and stipulations of evidence. After the State rested, appellant took the stand in his own behalf. He testified he fully understood the consequences of pleading guilty, he was satisfied with his counsel's efforts on his behalf, and he had no complaints to make. Following arguments to the court, the following occurred, in relevant part:
 
[COURT]:        Thank you. Mr. Brown, the Court's going to find you made your pleas purely voluntarily. You're competent to do so. I find you guilty of the lesser included offense in both cases, that is the aggravated robbery involving use of a deadly weapon and the possession of cocaine more than 400 grams. Set your punishment in each of those cases at 12 years in prison. I didn't hear anything about a fine. I'm going to impose a $1500 fine on those cases.
 
 
 
        On the state jail case, I'm going to find you guilty there and set your punishment at two years in the state jail and a $1500 fine.
 
No post-trial motion for new trial was filed in any case.
        In three issues, appellant asserts his guilty pleas violate due process and the trial court denied appellant his common law and statutory rights of allocution. For reasons that follow, we affirm the judgment in each case.
 
Guilty Pleas
 
        Appellant cooperated with the State and testified against a co-defendant. Appellant now argues that during this testimony, he testified in a way that exculpated him. Therefore, appellant contends, his subsequent guilty pleas were not consistent with due process and the trial court sua sponte should have withdrawn his guilty pleas, and erred by not doing so.
        Appellant points to the following exchange between defense counsel and appellant regarding his prior testimony as being exculpatory and requiring the trial court to withdraw his pleas:
 
[Counsel]:        Mr. Brown, I was present during your testimony. If a fellow just picked up the transcript of your testimony and read it, there's portions of that testimony which you basically stated that if believed, and that would be-that might be a problem, but if your testimony was true, due to your participation and level of your participation in this offense, it could be argued that you are in fact not even guilty, and I've talked to you about that, right?
 
[Appellant]:        Yes, sir.
 
 
 
[Counsel]:        I've told you if you wished to have a trial in this case, I'd be glad to do so.
 
 
 
[Appellant]:        Yes, sir.
 
 
 
[Counsel]:        You've told me that, in no uncertain terms, you do not want a jury trial under any circumstances; is that correct?
 
 
 
[Appellant]:        Yes, sir.
 
 
 
[Counsel]:        You want to plead guilty. You're asking the Court to accept your plea and that you want the Court to-and you're asking the Court to sentence you to a sentence of 12 years in the penitentiary for the lesser offense of aggravated robbery. That's the way you want to handle your case; is that right?
 
 
 
[Appellant]:        Yes, sir.
 
 
 
[Counsel]:        So as your attorney, I've fully advised you that there are certain issues -defensive issues and factual issues that may play out in trial in a different fashion, but you-this is your case, and you've told me that this is how you want it handled, correct?
 
 
 
[Appellant]:        Yes, sir.
 
 
 
[Counsel]:        And the same holds true as far as the dope case, the possession case of over 400 grams. Whatever the factual circumstances of that case entail, whether or not you're guilty or not, you understand that by entering this plea of guilty, that's an issue that will be decided by this Judge today. It won't be something that you come back later and say, wait, I want to go back now and relook at the facts. I've told you I'd try that case if you wanted to try it. You understand that?
 
 
 
[Appellant]:        Yes, sir.
 
 
 
[Counsel]:        Bottom line here is now that all these co-defendants have been taken care of, it's your chance to make a decision on how you want to proceed on these cases, and you've told me that you wanted to come before Judge McDowell, plead guilty on all three charges and ask him to sentence you to what we think is appropriate, understanding that he has to either decide to approve it or disapprove it. You understand that?
 
 
 
[Appellant]:        Yes, sir.
 
 
 
[Counsel]:        And you're-let me ask you this, Daniel. Are you satisfied with my efforts on your behalf?
[Appellant]:        Yes, sir.
 
 
 
[Counsel]:        Do you got [sic] any complaints you want to make?
 
 
 
[Appellant]:        No, sir.
 
        Appellant did not complain about the trial court's acceptance of his guilty pleas either during the plea hearing or in a post-trial motion. The State responds, therefore, appellant has waived his complaint that the trial court sua sponte should have withdrawn his guilty pleas. Moreover, argues the State, even if appellant's complaint is not waived, it is without merit because the trial court was not required to sua sponte withdraw appellant's guilty pleas.
        Appellant argues his convictions violate his rights under the Fourteenth Amendment. U.S. Const. amend. XIV. Section one of the Fourteenth Amendment provides, in relevant part, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Appellant correctly recognizes due process of law is not violated by a conviction based upon a guilty plea accompanied by a “strong factual basis for the plea demonstrated by the State and [a defendant]'s clearly expressed desire to enter it despite his professed belief in his innocence.” North Carolina v. Alford, 400 U.S. 25, 38 (1970). Nevertheless, seizing on selected language from Brady v. United States, 397 U.S. 742 (1970), appellant contends that because a defendant is a witness against himself, a judgment must be supported by a defendant's admission he committed the acts charged in the indictment and a guilty plea must be shown to be entered voluntarily and knowingly. Thus, appellant contends, the exculpatory evidence showed his guilty pleas were not voluntary and knowingly made under Boykin v. Alabama, 395 U.S. 238, 242 (1969).
        Appellant also recognizes that this Court and the court of criminal appeals have held that the rule 33.1 requirement of preservation of error applies to an issue about the voluntariness of a guilty plea. See Tex. R. App. P. 33.1; Mendez v. State, 138 S.W.3d 334, 344 (Tex. Crim. App. 2004). Appellant also recognizes this Court has previously held that a trial court, when acting as a fact finder, is not required to withdraw a defendant's guilty plea sua sponte where evidence is adduced that raises an issue as to guilt. See Aldrich v. State, 53 S.W.3d 460, 467 (Tex. App.-Dallas 2001), aff'd, 104 S.W.3d 890 (Tex. Crim. App. 2003). However, appellant points to a conflict among the intermediate courts of appeal on the issue of preservation. Appellant contends error is preserved here under the principle set out in Montgomery v. State, 99 S.W.3d 257, 259-60 (Tex. App.-Fort Worth 2003, pet. stricken).   See Footnote 2 
        Appellant next contends we should review the issue of the voluntariness of appellant's pleas because the circumstances under which such pleas were made “is tantamount to fundamental error.” In support of his argument, appellant cites rule of evidence 103(d) and Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (plurality op.), which note that a reviewing court is authorized to take “notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court.” Appellant also seeks review “in the interest of justice,” relying on another unpublished opinion, Duchane v. State, No. 05-00-01141-CR, 2002 WL 232851 (Tex. App.-Dallas, Feb. 8, 2002, no pet.) (not designated for publication).
        The court of criminal appeals has held that in order to preserve a complaint that a trial court sua sponte should have withdrawn a guilty plea, the complaint must first be raised in the trial or in a motion for new trial. Otherwise, error is waived. See Mendez, 138 S.W.3d at 339. In unpublished opinions, this Court has followed Mendez.
        Because appellant did not complain in the trial court, error is not preserved. See Tex. R. App. P. 33.1(a)(1). We decline appellant's invitation to disregard binding authority in favor of non- binding authority. We resolve appellant's first issue against him.
Right to Allocution
 
        In issues two and three, appellant contends that by failing to ask whether he had anything to say before sentence was imposed, the trial court denied both his common law and statutory rights of allocution. See Green v. United States, 365 U.S. 301, 304 (1961);Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon 2006).
        Although appellant states in his brief, “[b]eyond peradventure, it appears that an objection to denial of the common-law right of allocution is a prerequisite to an appellate complaint. See McClintick v. State, 508 S.W.2d 616, 617-18 (Tex. Crim. App. 1974) (op. on reh'g),” he nevertheless contends “the mere filing of [his] notices of appeal challenges the propriety of the proceedings below.”   See Footnote 3  Appellant, citing rule of evidence 103(d), also contends such denial is tantamount to fundamental error and his complaint should be reviewed. Finally, appellant contends we should review the issue of allocution “in the interest of justice.” Appellant recognizes the court of criminal appeals has also previously held that an objection to the denial of the statutory right of allocution is a prerequisite to an appellate complaint. See Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. [Panel Op.] 1978). Nevertheless, he contends error is preserved by his handwritten notices of appeal, and that review should be done “in the interest of justice.”
        Although appellant recognizes code of criminal procedure article 42.07 “appears to limit the allocution right to three reasons that will prevent a sentence from being pronounced,” he contends that “in practice” the right is not so limited. Appellant argues, “the allocution right is a last-moment chance to plead for mercy under our law under Johnson [v. State, 478 S.W.2d 954 (Tex. Crim. App. 1972)], notwithstanding the explicit delimiting of three reasons within article 42.07.” Thus, he argues the trial court's error in refusing him a chance to “allocute” affected his substantial rights under rule of appellate procedure 44.2(b). See Tex. R. App. P. 44.2(b). Appellant complains that he, unlike Johnson, was not allowed to make a final plea for mitigation or mercy.   See Footnote 4  Appellant contends his cases should be remanded for a new punishment trial. The State responds that appellant has not preserved either contention for appellate review. We agree with the State.
        “Allocution” refers to a trial judge's asking a criminal defendant to “speak in mitigation of the sentence to be imposed.” Eisen v. State, 40 S.W.3d 628, 631-32 (Tex. App.-Waco, 2001, pet. ref'd) (quoting A Dictionary of Modern Legal Usage 44-45 (Bryan A. Garner ed., 2d ed., Oxford 1995)). Article 42.07 sets out the procedural rule implementing allocution in Texas. Tex. Code Crim. Proc. Ann. art. 42.07. It requires that a defendant be asked whether he has anything to say about why the sentence should not be pronounced against him. It limits a defendant's response to three reasons to prevent imposition of sentence: that he (1) has received a pardon; (2) is incompetent to stand trial; and (3) is not the person convicted. Id. Under Eisen “allocution” is limited to the three enumerated reasons in article 42.07. Eisen, 40 S.W.3d at 636.
        Although the trial court did not ask appellant if there was any reason he should not be sentenced, no harm is shown. Defense counsel stated the following during his closing argument to the trial court:
 
[Defense counsel]:        Judge, we are going to ask the Court-I understand the Court's not bound by any requests that we've made, but we certainly believe that due to Mr. Brown's level of participation in the offense and the fact that he was not on probation at the time would be appropriate justification for him to receive a lesser sentence of the three individuals involved.
        We believe that 12 years is-even though it's not much less, we would ask the Court to follow or to follow the defense's request for that sentence, and I believe that would be the appropriate sentence under all the facts and circumstances that exist today.
 
(Emphasis added).
 
        We decline to construe appellant's handwritten notices of appeal as preserving error on the issue of denial of his right to allocution. Even if Vong were precedential, it is factually distinguishable. Moreover, the record does not show appellant was harmed by the trial court's failure to allow him to “allocute” before being sentenced. Appellant does not even make an argument that any of the three reasons stated in article 42.07 apply to him. We resolve appellant's issues two and three against him.
        We affirm the judgment in each case.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
070816F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Appellant also cites Palmer v. State, No. 02-02-00040-CR, 2003 WL 1948697, at * 2 (Tex. App.- Fort Worth Apr. 24, 2003, no pet.) (not designated for publication) (noting conflict among the appellate courts on the preservation issue). Earlier in his brief, however, appellant recognizes an unpublished decision possesses no precedential value. See Tex. R. App. P. 47.7.
Footnote 3 Appellant “submits that his handwritten notices preserve his complaints in the same fashion that a post-verdict letter does.” In support of his position, appellant cites Vong v. State, No. 05-04-00567-CR, 2004 WL 2955845, (Tex. App.-Dallas, Dec. 22, 2004, no pet.) (not designated for publication) (assuming that appellant preserved error where he did not complain at sentencing or in a motion for a new trial but complained in a letter filed thirteen days after his sentence was imposed that it was “unjust and unfair”).
Footnote 4 Of course defense counsel sought leniency on appellant's behalf.