BUSBEE v. STATE

No. 13-16-00555-CR.

JAMES PEYTON BUSBEE JR., Appellant, v. THE STATE OF TEXAS, Appellee.

Court of Appeals of Texas, Thirteenth District, Corpus Christi, Edinburg.


Attorney(s) appearing for the Case

L. Chris Iles , for James Peyton Busbee, Jr., Appellant.

Stephen B. Tyler , for State of Texas.

Before Justices Rodriguez, Contreras, and Longoria.


MEMORANDUM OPINION

Memorandum Opinion by Justice RODRIGUEZ.

By two issues, appellant James Peyton Busbee Jr. contends that: (1) article 42.07 of the Texas Code of Criminal Procedure is unconstitutional because it abridges a defendant's due process right to allocution, see TEX. CODE CRIM. PROC. ANN. art. 42.07 (West, Westlaw through 2015 R.S.); and (2) his sentence "violates his [United States] constitutional due process right to receive a sentence which is not more than necessary to accomplish all of the objectives in the Texas Penal Code."2 See TEX. PENAL CODE ANN. § 1.02 (West, Westlaw through 2015 R.S.) (setting out the objectives of the penal code). We affirm as modified.

I. BACKGROUND3

Busbee was indicted on three counts of aggravated sexual assault of a child younger than six years of age, first-degree felonies (Counts 1-3), and one count of possession or promotion of child pornography, a second-degree felony (Count 4). See TEX. PENAL CODE ANN. §§ 22.021(a)(2)(B), (e), 43.26(e-g) (West, Westlaw through 2015 R.S.). Busbee was also indicted on one count of aggravated assault, a second-degree felony (Count 5). See id. § 22.02(a)(2), (b) (West, Westlaw 2015 R.S.). The indictment was amended to change the mental state in Count 5 from "intentionally or knowingly" to "recklessly."

Busbee pleaded guilty to Counts 1-4 and no contest to Count 5. The trial court accepted Busbee's pleas and set the case for a contested sentencing hearing.

During the sentencing hearing, the State presented multiple witnesses who established that the child complainant was five years old, that Busbee was HIV positive at the time he committed the offenses, and that Busbee made a video of the child performing oral sex on Busbee after which he transmitted that video to three other individuals. The State also showed that Busbee had been convicted in federal court and sentenced to thirty years' imprisonment. The State rested its case. Busbee elected not to testify and rested his case.

After closing arguments, the trial court entered five judgments of guilt, one for each count,4 and imposed ninety-nine year sentences as to Counts 1, 2, and 3 and twenty-year sentences as to Counts 4 and 5, with the sentences to run consecutively. The trial court further ordered that the sentences for all five counts run consecutive to Busbee's sentence for his federal offense out of the United States District Court for the Southern District of Texas in Cause Number 6:15CR00025-001.

During the sentencing hearing, as to allocution, Busbee made no request to make an unsworn statement, no objection for not being allowed to do so, and no assertion that article 42.07 of the code of criminal procedure was unconstitutional. See TEX. CODE CRIM. PROC. ANN. art. 42.07. Regarding sentencing, Busbee did not object to his sentence and later filed no motion for new trial challenging the constitutionality of his sentence. This appeal followed.

II. ALLOCUTION

By his first issue, Busbee argues that article 42.07 of the Texas Code of Criminal Procedure "is unconstitutional in that it abridges a defendant's constitutional Due Process right under the United States [C]onstitution to directly address the court personally, apart from testifying, in mitigation of his sentence." See id.

A. Applicable Law

"`[A]llocution' 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 45 (Bryan A. Garner ed., 2nd ed., Oxford 1995)). Article 42.07 of the Texas 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 identity.

TEX. CODE CRIM. PROC. ANN. art. 42.07.

B. Contentions

Busbee does not contend that any of article 42.07's three reasons for withholding pronouncement of sentence apply to him. See id. Instead, Busbee argues that the three reasons enumerated above overly restrict his due process right to directly address the court personally, apart from testifying, in mitigation of his sentence. See id.

While asserting that the due process clause of the United States Constitution affords him the right to humanize his situation by personally addressing the court, similar to the right afforded to him in federal sentencing proceedings, see FED. R. CRIM. P. 32(i)(4)(A)(ii), Busbee acknowledges that neither Texas statutory law nor case law clearly extends the right for him to make a personal unsworn statement to the sentencing court. Busbee also notes that the United States Supreme Court has not clearly stated whether the denial of allocution constitutes a federal due process violation, see Hill v. United States, 368 U.S. 424, 428 (1962), but cites no case law that holds that allocution is a constitutional right. Without supporting authority, Busbee asserts that

his right of alloc[u]tion should have been afforded to him apart from testifying to make a plea to the court in mitigation of his sentence. This right is particularly important in this case, because of the draconian sentences he received in the first place, coupled with the fact that all of them were subjected to stacking, and were indeed stacked. To make matters worse, his state sentences were ordered stacked on top of his federal sentence. It could be theoretically argued that alloc[u]tion apart from testifying were not so critical in cases with lower punishment ranges. However, with cases such as this one with such high sentencing exposure, in addition to the possibility of being stacked, the paramount importance of allocution is revealed with such sentencing exposure.

C. Analysis

As Busbee acknowledges, although allocution is statutorily recognized, the United States Supreme Court has not determined that the United States Constitution mandates a right of allocution free from cross-examination before punishment has been assessed. See McGautha v. California, 402 U.S. 183, 218-19 (1971) ("This Court has not directly determined whether or to what extent the concept of due process of law requires that a criminal defendant wishing to present evidence or argument presumably relevant to the issues involved in sentencing should be permitted to do so."), judgment vacated by Crampton v. Ohio, 408 U.S. 941, 942 (1972); Hill, 368 U.S. at 429; Eisen, 40 S.W.3d at 634. Likewise, the Texas Court of Criminal Appeals has not interpreted the constitution as requiring such a right. Lewis v. State, 815 S.W.2d 560, 568 (Tex. Crim. App. 1991) (en banc) (providing that "[r]emorse following commission of a serious crime may well be a circumstance tending in some measure to mitigate the degree of a criminal's fault, but it must be presented in a form acceptable to the law of evidence"); see also Garza v. State, No. AP-75,477, 2008 WL 5049910, at *12 (Tex. Crim. App. Nov. 26, 2008) (not designated for publication) (explaining that neither the Texas Court of Criminal Appeals nor the United States Supreme Court "has held that a defendant does not have a constitutional right to make a statement of remorse free from cross-examination before punishment ha[s] been assessed").

However, in Eisen, the Waco Court of Appeals held that the right of allocution has not achieved constitutional status. 40 S.W.3d at 636. The Eisen Court provided the following explanation for its holding:

Many of the rights of an accused that we take for granted because they are now recognized as constitutional rights were, at common law, limited. The common law did not guarantee that a criminal defendant would have access to counsel, did not always permit a defendant to testify, did not provide compulsory process to obtain witnesses, and did not guarantee that the accused could confront his accuser. Because we now guarantee those rights, an accused will be heard through his counsel and will have access to witnesses who can aid his defense. At the time article 42.07 comes into play, legal matters on the record have already been brought to the court's attention; factual matters relating to punishment have been presented through the evidence. The limitations of that article are designed to allow the defendant to bring to the court's attention legal bars to the imposition of punishment that may not be of record, specifically including a pardon, incompetency, and mistaken identity. TEX. CODE CRIM. PROC. ANN. 42.07. Thus, we believe that the legislature's limit to matters in bar of a sentence are reasonable and achieve a permissible legislative objective. See Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 74 L. Ed. 221 (1929).

40 S.W.3d at 635-36. In Garcia v. State and Clifford v. State, we agreed with the reasoning in Eisen, and we also concluded that allocution is not a constitutional right. Garcia v. State, No. 13-10-281-CR, 2010 WL 4156458, at *1-4 (Tex. App.-Corpus Christi Oct. 21, 2010, pet. ref'd) (mem. op., not designated for publication) (citing Eisen, 40 S.W.3d 635-36); Clifford v. State, No. 13-10-00256-CR, 2010 WL 5020237, at *1-3 (Tex. App.-Corpus Christi Dec. 9, 2010, pet. ref'd) (mem. op., not designated for publication) (citing Eisen, 40 S.W.3d 635-36).

Here, where the stacking of sentences is a consideration, we do not conclude otherwise. See, e.g., TEX. PENAL CODE ANN. § 3.03(b)(2)(B) (West, Westlaw through 2015 R.S.) (providing for the stacking of sentences when the accused has been charged with more than one of certain offenses, including section 22.021 offenses, committed against someone younger than seventeen years of age). We cannot conclude that the due process clause affords Busbee the right to allocution in order to humanize his situation by personally addressing the court. We apply the reasoning set out in Eisen to the facts of this case. See Eisen, 40 S.W.3d at 635-36; see also Garcia, 2010 WL 4156458, at *1-4; Clifford, 2010 WL 5020237, at *1-3. "At the time article 42.07 comes into play, legal matters on the record have been brought to the court's attention. Factual matters relating to punishment have been presented through the evidence." Eisen, 40 S.W.3d at 635. Busbee does not contend that he had a legal bar—a pardon, incompetency, or mistaken identity—upon which he was not allowed to speak. See TEX. CODE CRIM. PROC. ANN. art. 42.07. We choose not to expand article 42.07 to allow a defendant to bring to the court's attention unsworn facts that may not be of record because the trial court might impose the upper limit of a sentence range or because it might stack sentences. We are not persuaded by Busbee's unsupported argument that with such high sentencing exposure, in addition to the possibility of being stacked, allocution is a constitutional right and the denial of allocution constitutes a federal due process violation.

C. Preservation

Moreover, even were we to conclude that allocution is a constitutional right, Busbee failed to preserve this issue. Generally, to preserve a complaint for appellate review, the complaining party must present a timely request, objection, or motion that states the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint, and the trial court must rule on the request, objection, or motion. TEX. R. APP. P. 33.1(a). "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only[, none of which apply here,] . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004) (en banc) (citations omitted).

In this case, Busbee did not ask the trial court for the opportunity to make an unsworn statement prior to the trial court assessing its sentence. Busbee made no objection for not being allowed to do so. And he did not complain that article 42.07 was unconstitutional.

Because Busbee did not make a timely and specific objection to the district court, he failed to preserve any error for appellate review. See id.; Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. 1978) (overruling an issue raising a violation of article 42.07 where "[t]here were no objections to the court's failure to inquire of the appellant if she had anything to say why the sentence should not be pronounced against her"); Eisen, 40 S.W.3d at 633, 637 (holding that "court's failure to follow article 42.07 was not preserved for our review" where the "issue [was raised] for the first time on appeal"). We overrule Busbee's first issue.

III. PUNISHMENT ASSESSED

By his second issue, Busbee contends that "the sentence imposed by the court in this case violates his [United States] constitutional right to receive a sentence which is not more than necessary to accomplish all of the objectives in the Texas Penal Code. See TEX. PENAL CODE ANN. § 1.02.

A. Applicable Law and Standard of Review

The Texas Penal Code sets out the following objectives of sentencing:

The general purposes of this code are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate. To this end, the provisions of this code are intended, and shall be construed, to achieve the following objectives: (1) to insure the public safety through: (A) the deterrent influence of the penalties hereinafter provided; (B) the rehabilitation of those convicted of violations of this code; and (C) such punishment as may be necessary to prevent likely recurrence of criminal behavior; (2) by definition and grading of offenses to give fair warning of what is prohibited and of the consequences of violation; (3) to prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders; (4) to safeguard conduct that is without guilt from condemnation as criminal; (5) to guide and limit the exercise of official discretion in law enforcement to prevent arbitrary or oppressive treatment of persons suspected, accused, or convicted of offenses; and (6) to define the scope of state interest in law enforcement against specific offenses and to systematize the exercise of state criminal jurisdiction.

Id.

When a sentence is within the prescribed statutory range set down by the legislature, sentencing authorities have nearly unfettered discretion to impose any punishment within that range. Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006). And a punishment within the limits prescribed by a valid statute is not, per se, prohibited as excessive, cruel, or unusual. See Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.-Corpus Christi 2005, pet. ref'd). Moreover,

[i]f the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of . . . an offense . . . for which a plea agreement was reached in a case in which the accused was charged with more than one offense [under Section 21.02, 21.11, 22.011, 22.021, 25.02, or 43.25] . . . committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section.

TEX. PENAL CODE ANN. § 3.03(b)(2)(B).

B. Preservation

To preserve a complaint of improper sentencing, a criminal defendant must make a timely, specific objection to the trial court or raise the issue in a motion for new trial. TEX. R. APP. P. 33.1; Kim v. State, 283 S.W.3d 473, 475 (Tex. App.-Fort Worth 2009, pet. ref'd) (citing Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (en banc)); Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.-Corpus Christi 1989, pet. ref'd) (holding that the defendant waived his cruel and unusual punishment argument by failing to object); see also Trevino, 174 S.W.3d at 927-28 ("Because the sentence imposed is within the punishment range and is not illegal, we conclude that the rights [appellant] asserts for the first time on appeal are not so fundamental as to have relieved him of the necessity of a timely, specific trial objection.").

Busbee did not object when the trial court imposed sentence and did not complain of the sentence in any post-trial motion. Therefore, Busbee failed to preserve this issue for appeal.

C. Analysis

Even absent this preservation determination, Busbee's sentences of ninety-nine years' imprisonment for each of the first-degree felony convictions and twenty years' imprisonment for each of the second-degree felony convictions fell within the legal ranges set down by the state legislature for those offenses and were not prohibited as excessive, cruel, or unusual. See TEX. PENAL CODE ANN. §§ 12.32, 1233; Trevino, 174 S.W.3d at 928; see also Cowan v. State, No. 13-14-00358-CR; 2015 WL 4381090, *2 (Tex. App.-Corpus Christi July 16, 2015, no pet.) (mem. op., not designated for publication). And the trial court did not abuse its nearly unfettered discretion in imposing the sentences. Ex parte Chavez, 213 S.W.3d at 323.

Nonetheless, Busbee generally maintains "that his substantive and procedural due process rights were violated when the court imposed a sentence at the top end of the statutory range, and were ordered stacked in light of the facts which were established on the record." He also makes a conclusory assertion "that a sentence below the maximum statutory range in each count without stacking would have been much more appropriate in this case, and would have accomplished all the sentencing objectives of the Texas Penal Code." Busbee failed, however, to support his general assertions with clear and concise argument or with application of the argument to the specific facts of the present case. See TEX. R. APP. P. 38.1(i); Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000); Williams v. State, 937 S.W.2d 479, 487 (Tex. Crim. App. 1996). Busbee cites to no due process provisions of the United States Constitution or any case law interpreting those provisions and makes no substantive due process arguments. See TEX. R. APP. P. 38.1(i). In addition, although Busbee references the "stacking" of his sentences in these general assertions, he makes no further mention of stacking in his argument and provides no case law in support of his argument as it might relate to stacking. See id. These general arguments are inadequately briefed and present nothing for our review. See id.

D. Summary

Because Busbee failed to object to the sentences, because the sentences are within the punishment range, and because Busbee inadequately briefed any remaining arguments, we overrule his second issue. See id. R. 33.1, 38.1(i); Kim, 283 S.W.3d at 475; Noland, 264 S.W.3d at 151-52; Trevino, 174 S.W.3d at 927-28; Quintana, 777 S.W.2d at 479; see also Cowan, 2015 WL 4381090, at *2; Gonzalez, 2013 WL 4040010, at *3.

IV. MODIFICATION OF JUDGMENT

The trial court's judgments for Counts 1, 2, and 3 mistakenly refer to section 21.02(f)(1), a non-existent section of the penal code, instead of section 22.021(a)(2)(B), as the statute concerning the offense of aggravated sexual assault. See TEX. PENAL CODE ANN. § 21.021(a)(2)(B). Because we have the necessary data and evidence for reformation, we modify the trial court's judgments to reflect the correct statute for those offenses—Texas Penal Code section 22.021(a)(2)(B). See id.; TEX. R. APP. P. 43.2; Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993) (en banc).

V. CONCLUSION

We affirm the trial court's judgments as modified.

FootNotes


1. Justice Dori Contreras, formerly Dori Contreras Garza. See TEX. FAM. CODE ANN. § 45.101 et seq. (West, Westlaw through 2015 R.S.).
2. We mention at the outset that Busbee's arguments mirror those made in Cowan v. State, No. 13-14-00358-CR, 2015 WL 4381090, *1-2 (Tex. App.-Corpus Christi July 16, 2015, no pet.) (mem. op., not designated for publication) (sentencing); Gonzalez v. State, No. 13-12-00558-CR, 2013 WL 4040010, *3 (Tex. App.-Corpus Christi Aug. 8, 2013, pet. ref'd) (mem. op., not designated for publication) (sentencing); Luera v. State, 2011 WL 3631951, at *1-3 (Tex. App.-Corpus Christi Aug. 28, 2011, no pet.) (mem. op., not designated for publication) (sentencing); Clifford v. State, No. 13-10-00256-CR, 2010 WL 5020237, at *1-5 (Tex. App.-Corpus Christi Dec.9, 2010, pet. ref'd) (mem. op., not designated for publication) (allocution and sentencing); and Garcia v. State, No. 13-10-281-CR, 2010 WL 4156458, at *1-4 (Tex. App.-Corpus Christi Oct. 21, 2010, pet. ref'd) (mem. op., not designated for publication) (allocution and sentencing), among others. Likewise, our analysis in this case follows this Court's precedent.

Busbee also states throughout his brief, as did the appellant in each previously cited case, that his arguments are "foreclosed under current law but [are] raise[d] . . . in an adversarial fashion for purposes of preserving error for possible further review." We note, as we did in Luera, that such "further review" seems unlikely, given that the Texas Court of Criminal Appeals refused to grant petitions for discretionary review in Garcia, Clifford, and Gonzalez. See TEX. R. APP. P. 69.1 ("If four judges do not vote to grant a petition for discretionary review, the Court will enter a docket notation that the petition is refused."); see also Luera, 2011 WL 3631951, at *1 n.1; Clifford, 2010 WL 5020237, at *1 n.1.

3. Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
4. As to Count 5, the trial court found that Busbee "used and/or exhibited a deadly weapon, to wit: Human Immunodeficiency Virus during the commission of this felony offense." See TEX. PENAL CODE ANN. § 22.02(a)(2) (West, Westlaw through 2015 R.S.).

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