Opinion
05-22-00540-CR
06-20-2023
STEPHEN ARISTA, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47
On Appeal from the 354th Judicial District Court Hunt County, Texas Trial Court Cause No. 33954CR
Before Justices Pedersen, III, Goldstein, and SmithMEMORANDUM OPINION
BILL PEDERSEN, III JUSTICE
Appellant Stephen Arista was charged with the offense of assault of a household member by impeding her breath or circulation. Appellant pleaded guilty, and the trial court-in accordance with appellant's plea agreement with the State- placed appellant on deferred adjudication community supervision for six years. The State subsequently moved to revoke appellant's community supervision and to adjudicate his guilt. Appellant pleaded true to three violations of the conditions of his community supervision, and the trial court revoked his supervision and sentenced him to ten years' confinement in the Texas Department of Criminal Justice Institutional Division. Appellant challenges the trial court's judgment in two issues, asserting that the court (1) pronounced a sentence that did not conform to his plea agreement and (2) failed to comply with article 42.07 of the Texas Code of Criminal Procedure. We affirm the trial court's judgment.
Incorrect Oral Pronouncement of Guilt
In his first issue, appellant complains that in his original plea proceeding, the trial judge erroneously stated she was finding appellant guilty, when his plea agreement called for a deferred adjudication of his guilt. This oral statement, appellant contends, was error because it did not conform to the plea agreement or to the court's written judgment. If appellant believed that the trial court had rejected his plea agreement, he had the right to withdraw his guilty plea. See Moore v. State, 295 S.W.3d 329, 332 (Tex. Crim. App. 2009) (citing Tex. Code Crim. Proc. art. 26.13(a)(2)). But appellant did not attempt to withdraw his plea or to void the plea agreement. And the trial court did not impose a sentence longer than appellant had agreed to in his bargain with the State. Accordingly, the trial court appropriately certified that the case was governed by a plea bargain and appellant had no right to appeal. See Tex. R. App. P. 25.2(a)(2). Because appellant waived his right to appeal in return for being placed on deferred adjudication, we would not have had jurisdiction to consider his complaint after the plea proceeding. See Davis v. State, No. 05-19-00313-CR, 2019 WL 2417075, at *2 (Tex. App.-Dallas June 10, 2019, no pet.) (mem. op., not designated for publication). Nor do we have jurisdiction now to consider the forfeited complaint. See Wiley v. State, 410 S.W.3d 313, 321 (Tex. Crim. App. 2013) (appellant forfeited claim from community service proceeding when he waived appeal and could not "attempt to resuscitate" claim in later appeal from revocation of community supervision). We overrule appellant's first issue.
It is undisputed that the trial judge clarified that she was deferring the formal finding of guilt and was placing appellant on deferred adjudication community service for six years. It is likewise undisputed that appellant was placed on community service for a short time before he was revoked.
Rule 25(a)(2) provides that in a plea-bargained case, if the trial court assesses punishment that does not exceed the punishment to which the defendant agreed, the defendant may appeal only matters raised by written motion filed and ruled on before trial or after getting trial court's permission to appeal. Neither of those exceptions apply in appellant's case.
Allocution
In his second issue, appellant argues that the trial court erred by failing to comply with article 42.07's requirement to ask appellant-before pronouncing sentencing-"whether he has anything to say why the sentence should not be pronounced against him." Crim. Proc. art. 42.07. Our review of the record confirms the facts of appellant's complaint. Appellant testified near the end of the revocation hearing, apologizing to the judge and asserting that if he were continued on community service, then he would comply with all applicable conditions. Following that testimony, the court heard arguments from the State and from appellant's counsel. Then-without asking whether there was a legal reason why sentence should not be pronounced-the trial court sentenced appellant to "ten years in the Texas Department of Criminal Justice." However, we have concluded that "[t]o complain on appeal of the denial of the right of allocution, whether statutory or one claimed under the common law, controlling precedent requires that a defendant timely object." Casselberry v. State, No. 05-22-00014-CR, 2022 WL 14381667, at *2 (Tex. App.-Dallas Oct. 25, 2022, no pet.) (mem. op., not designated for publication); see also Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. 1978).Appellant did not object when the trial court sentenced him; he has preserved nothing for our review. We overrule his second issue.
Although appellant's issue is framed narrowly-complaining only of the trial court's violation of article 42.07-he does make passing references to the common law right of allocution. As Casselberry points out, both concerns must be preserved by timely objection before we may consider their merit. 2022 WL 14381667, at *1-2.
We affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.