Derrick Eugene Cox v. The State of Texas Appeal from 195th Judicial District Court of Dallas County (memorandum opinion)

 Annotate this Case
Download PDF
Affirmed as Modified and Opinion Filed March 5, 2018 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00522-CR No. 05-17-00523-CR DERRICK EUGENE COX, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F16-39284-N, F16-41977-N MEMORANDUM OPINION Before Justices Lang, Brown, and Whitehill Opinion by Justice Whitehill Derrick Eugene Cox waived a jury trial and pleaded guilty to evading arrest or detention with a vehicle and aggravated robbery with a deadly weapon. The trial court sentenced appellant to two years’ imprisonment for the evading conviction and fifteen years’ imprisonment for the aggravated robbery conviction. In two issues, appellant contends the trial court imposed grossly disproportionate sentences and the trial court violated his common law right to allocution. In cause no. 05-17-00522-CR, we affirm the trial court’s judgment; in cause no. 05-17-00523-CR, we modify the trial court’s judgment and affirm as modified. Because the facts are well-known to the parties, we discuss them below only as necessary to explain our analysis in context. I. DISCUSSION A. Appellant’s First Issue: Did the trial court err by imposing a grossly disproportionate sentence under the circumstances? Appellant’s first issue argues that the trial court erred by imposing grossly disproportionate sentences that violate the Eighth Amendment’s prohibition against cruel and unusual punishment. The State responds that appellant did not preserve his complaints for appellate review because he did not object to the sentences in the trial court. The State is correct. The constitutional right appellant invokes must be preserved in the trial court. See Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). Accordingly, he did not preserve his first issue for appellate review, and we overrule it. B. Appellant’s Second Issue: Did the trial court err by denying appellant a common law allocution? Appellant’s second issue asserts that the trial court violated his “common law right to allocution.” Appellant acknowledges that the trial court satisfied the statutory “allocution” requirements of Article 42.07 of the Texas Code of Criminal Procedure. See TEX. CRIM. PROC. CODE art. 42.07 (“Before pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him.”). However, he asserts he was also entitled, under the common law, to make a personal plea in mitigation of punishment prior to sentencing. The State responds appellant has not preserved this issue because he did not object in the trial court and alternatively, the trial court followed allocution protocol mandated by article 42.07. It is well-settled that to complain on appeal of the denial of a right to allocution, whether statutory or one claimed under the common law, a defendant must timely object. See Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. [Panel Op.] 1978); McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974) (op. on reh’g). Because appellant did not do so, we overrule appellant’s second issue. –2– III. MODIFICATION We note that the trial court’s judgment in cause no. 05-17-00523-CR incorrectly omits the deadly weapon finding. Appellant was indicted for and convicted of aggravated robbery with a deadly weapon, a firearm. See TEX. PENAL CODE § 29.03. The trial court’s judgment recites the finding on deadly weapon as “N/A.” Accordingly, on our own motion, we modify the judgment to show the finding on deadly weapon is “yes, a firearm.” TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (courts of appeals have authority to modify a judgment). IV. CONCLUSION In cause no. 05-17-00522-CR, we affirm the trial court’s judgment. In cause no. 05-1700523-CR, we affirm the trial court’s judgment as modified. /Bill Whitehill/ BILL WHITEHILL JUSTICE Do Not Publish TEX. R. APP. P. 47 170522F.U05 –3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT DERRICK EUGENE COX, Appellant No. 05-17-00522-CR On Appeal from the 195th Judicial District Court, Dallas County, Texas Trial Court Cause No. F16-39284-N. Opinion delivered by Justice Whitehill. Justices Lang and Brown participating. V. THE STATE OF TEXAS, Appellee Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered March 5, 2018. –4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT DERRICK EUGENE COX, Appellant No. 05-17-00523-CR On Appeal from the 195th Judicial District Court, Dallas County, Texas Trial Court Cause No. F16-41977-N. Opinion delivered by Justice Whitehill. Justices Lang and Brown participating. V. THE STATE OF TEXAS, Appellee Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: The section entitled “Findings on Deadly Weapon” is modified to show “Yes, a Firearm.” As modified, we AFFIRM the trial court’s judgment. Judgment entered March 5, 2018. –5–

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.