Opinion
No. 05-08-01706-CR
Opinion Filed February 26, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-50664-V.
Before Justices BRIDGES, LANG, and LANG-MIERS.
OPINION
Appellant Jose Benito Nino was charged with aggravated sexual assault of a child younger than fourteen years of age. Appellant waived a jury trial, pleaded guilty, and was sentenced by the trial court to 35 years in prison. On appeal, appellant argues that the trial court erred when it denied his common-law right of allocution and admitted certain testimony over appellant's objection. We affirm the trial court's judgment.
Appellant's First Issue
In his first issue, appellant argues that the trial court erred when it denied his common-law right of allocution. Background Following appellant's guilty plea, the trial court conducted a unitary trial to determine the remaining issue of punishment, during which the State and appellant presented evidence. After the State rested and before appellant presented his evidence, appellant's counsel told the trial court that because "there are some things that [appellant] wants communicated to the Court," appellant's counsel had explained to appellant that he had a right "to take the witness stand and testify under oath and subject himself to cross-examination." The trial court then explained to appellant his Fifth Amendment rights, confirmed that appellant understood those rights, and asked appellant to tell his counsel whether or not he wished to testify. Appellant's counsel then asked the trial court to explain to appellant that if appellant wanted to make any statement to the trial court about leniency, "the way he will have to do it is by testifying, as opposed to him having any independent right to make a statement to the Court." The trial court asked whether appellant wanted "a more expansive right of allocution" than is provided by article 42.07 of the code of criminal procedure. Appellant's counsel answered, "He does, Your Honor," and the State objected. The trial court sustained the State's objection and denied appellant's request, to which appellant's counsel responded, "Very good, Your Honor." After that exchange, appellant testified that he thought that probation would be the appropriate sentence in his case because he had only one prior conviction for selling drugs and he had successfully completed his probation for that offense. Appellant also confirmed that he had a chance to give the judge the additional information appellant thought the judge needed. Based on appellant's plea and the evidence, the trial court found appellant guilty, assessed appellant's punishment at 35 years in prison, and asked appellant's counsel whether there was any reason in law "why sentence should not be pronounced at this time," to which appellant's counsel answered, "No, Your Honor."Analysis
On appeal, appellant argues that the trial court's ruling on his request for allocution "was erroneous for four reasons." More specifically, appellant argues that (1) he was impermissibly denied the right granted to the defendant in Johnson v. State, 478 S.W.2d 954 (Tex. Crim. App. 1972), (2) his request is distinguishable from the defendant's request in Eisen v. State, 40 S.W.3d 628 (Tex. App.-Waco 2001, pet. ref'd), (3) Eisen was wrongly decided, and (4) the trial court's ruling conflicts with the United States Supreme Court's decision in Green v. United States, 365 U.S. 301 (1961). But appellant did not raise any of these arguments below, either before or after sentencing. Instead, appellant's counsel essentially asked the trial court to explain to appellant that he did not have an independent right to address the trial court free from cross-examination during his trial, and the trial court complied with counsel's request. As a prerequisite to presenting a complaint for appellate review, a party must make a timely objection, motion, or request that states the grounds for the ruling desired with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context. See Tex. R. App. P. 33.1(a)(1)(A). Moreover, the legal basis of a complaint raised on appeal must comport with the complaint raised at trial. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) ("it is well settled that the legal basis of a complaint raised on appeal cannot vary from that raised at trial"). In this case, although appellant apparently desired to address the trial court before his punishment was assessed without being subject to cross-examination, appellant did not provide the trial court with any specific grounds for granting his request and no specific grounds were apparent from the context. Moreover, none of appellant's arguments on appeal were raised below. As a result, we conclude that appellant's complaint was not properly preserved for appellate review. See Tex. R. App. P. 33.1(a)(1)(A); Heidelberg, 144 S.W.3d at 537. We overrule appellant's first issue.Appellant's Second Issue
In his second issue, appellant complains about the trial court's decision to overrule his objection and admit testimony about appellant's demeanor when he was initially confronted by police.Background
In his signed judicial confession, appellant admitted that he intentionally and knowingly used his sexual organ to penetrate the sexual organ of a child younger than fourteen years of age, as alleged in the indictment. Among other evidence presented by the State during appellant's trial, the complainant testified that appellant lived with her family and began sexually assaulting her when she was nine years old. The complainant testified that the abuse occurred almost every day until she was fifteen and became pregnant with appellant's child. The State's evidence also included the testimony of Detective Lisette Rivera, who investigated the complainant's allegations against appellant. During that State's direct examination, Detective Rivera testified, in part, as follows:Q. As part of your investigation, did you also speak with the defendant in this case, Jose Nino?
A. Yes, I did.
Q. How did that conversation come about?
A. It was about a fifteen-minute conversation. He-he pretty much denied any wrongdoing.
. . .
Q. Were you able to make any comparisons in their physical appearance to how [the complainant's daughter] and the defendant looked?
A. Yes. The little girl looked just like the defendant, Jose Nino.
Q. Did you confront him with that?
A. Yes, I did.
Q. And did he continue to maintain that he was not the father of that child?
A. Yes, yes, he did.During the State's re-direct examination, Detective Rivera testified again about appellant's demeanor during their conversation, and appellant's counsel objected:
Q. Can you tell the Judge a little bit, if you recall, the defendant's demeanor when you were confronting him with the allegations against him?
A. Um, he denied any wrongdoing.
[Appellant's counsel]: Excuse me, Your Honor, I will object to this as irrelevant, since the defendant has pled guilty.The trial court overruled the objection, and Detective Rivera testified again that appellant denied any wrongdoing during her investigation.