Brandon Wilson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 3, 2024
• Docket: 05-23-00552-CR
• Status: Published

Opinion

Affirm as Modified and Opinion Filed October 3, 2024

In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00551-CR No. 05-23-00552-CR No. 05-23-00553-CR

BRANDON WILSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F21-58250-N, F21-58253-N, F21-58254-N

MEMORANDUM OPINION Before Chief Justice Burns, Justice Reichek, and Justice Nowell Opinion by Justice Nowell Brandon Wilson was charged with three counts of aggravated robbery. The

cases were tried together, and a jury convicted appellant in each case. In three issues

on appeal, appellant requests we modify the judgments and also argues the trial court

violated his common right of allocution. The State agrees the judgments should be

modified and asserts appellant failed to preserve his allocution complaint. We

modify the trial court’s judgments and affirm as modified. MODIFICATIONS TO JUDGMENTS This Court has the power to modify a judgment to speak the truth when we

have the necessary information to do so. Shuler v. State, 650 S.W.3d 683, 691 (Tex.

App.—Dallas 2022, no pet.); TEX. R. APP. P. 43.2(b).

Appellant was convicted of three offenses in a single criminal action. The trial

court assessed $286.00 in court costs in each case. In his first issue, appellant

requests we modify two judgments because the convictions arose from a single

criminal action against him and assessing costs in all three cases violates the code of

criminal procedure. The State agrees.

“In a single criminal action in which a defendant is convicted of two or more

offenses or of multiple counts of the same offense, the court may assess each court

cost or fee only once against the defendant.” TEX. CODE CRIM. PROC. art. 102.073(a).

For purposes of this rule, a person convicted of two or more offenses in the same

trial or plea proceeding is convicted of those offenses in a “single criminal action.”

Shuler, 650 S.W.3d at 690. When, as here, the convictions are for the same category

of offense and the costs are the same, the costs should be assessed in the case with

the lowest trial court cause number. Id.

Because all offenses at issue are first-degree felonies, the court costs should

only be assessed in the case with the lowest trial court number. Accordingly, we

delete the court costs from the judgments in trial court cause numbers F21-58253-N

–2– (appellate cause number 05-23-00552-CR) and F21-58254-N (appellate cause

number 05-23-00553-CR). We sustain appellant’s first issue.

In his second issue, appellant requests we modify the judgments to show he

never entered into a plea bargain agreement with the State. The State agrees.

Each judgment includes the heading “Terms of Plea Bargain (if any).” Under

each heading, information about appellant’s sentences was provided. However, the

record shows appellant did not enter into any plea bargain with the State.

Accordingly, we strike the information under the heading “Terms of Plea Bargain

(if any)” in each judgment and replace with the term “N/A.” We sustain appellant’s

second issue.

ALLOCUTION

In his third issue, appellant argues the trial court violated his common law

right to allocution in cause number F21-58250-N (appellate cause number 05-23-

00551-CR), and he requests a new punishment hearing. Appellant concedes the trial

court complied with Texas Code of Criminal Procedure article 42.07, but he claims

the trial judge did not inquire whether he wished to exercise his common law right

to allocution.

The term “allocution” refers to a criminal defendant’s opportunity to present

his personal plea to the court in mitigation of punishment before sentence is imposed.

Hunter v. State, 691 S.W.3d 247, 253 (Tex. App.—Dallas 2024, no pet.). The

statutory right to allocution requires the defendant be asked, before sentence is

–3– pronounced, “whether he has anything to say why the sentence should not be

pronounced against him.” TEX. CODE CRIM. PROC. art. 42.07; see also Hunter, 691

S.W.3d at 253. To complain on appeal of the denial of the right of allocution—

regardless of whether it is statutory or one claimed under the common law 1—a

defendant must timely object. Id. “This Court has repeatedly held that a defendant

who fails to timely object to the denial of her right of allocution does not preserve

the complaint for appeal.” Id.

Before pronouncing appellant’s sentence, the trial judge asked whether there

was any reason why the sentence should not be imposed, and defense counsel

answered, “No, Your Honor.” Appellant made no objection that he was denied his

right of allocution. Accordingly, we conclude appellant failed to preserve his third

issue for appellate review. Id. (citing TEX. R. APP. P. 33.1).

1 We express no opinion about whether a common law right of allocution exists in Texas. Hunter, 691 S.W.3d at 253, n.2. –4– CONCLUSION We modify the trial court’s judgments as described herein. As modified, we

affirm the trial court’s judgments.

/Erin A. Nowell// ERIN A. NOWELL JUSTICE

230551f.u05 230552f.u05 230553f.u05 Do Not Publish TEX. R. APP. P. 47.2(b)

–5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BRANDON WILSON, Appellant On Appeal from the 195th Judicial District Court, Dallas County, Texas No. 05-23-00551-CR V. Trial Court Cause No. F21-58250-N. Opinion delivered by Justice Nowell. THE STATE OF TEXAS, Appellee Chief Justice Burns and Justice Reichek participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: Under the heading “Terms of Plea Bargain (if any),” we STRIKE the words “10 Years TDC” and add the term “N/A.”

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 3rd day of October, 2024.

–6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BRANDON WILSON, Appellant On Appeal from the 195th Judicial District Court, Dallas County, Texas No. 05-23-00552-CR V. Trial Court Cause No. F21-58253-N. Opinion delivered by Justice Nowell. THE STATE OF TEXAS, Appellee Chief Justice Burns and Justice Reichek participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: Under the heading “Court Costs,” we STRIKE the term $286.00.

Under the heading “Terms of Plea Bargain (if any),” we STRIKE the words “5 Years TDC” and add the term “N/A.”

–7– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BRANDON WILSON, Appellant On Appeal from the 195th Judicial District Court, Dallas County, Texas No. 05-23-00553-CR V. Trial Court Cause No. F21-58254-N. Opinion delivered by Justice Nowell. THE STATE OF TEXAS, Appellee Chief Justice Burns and Justice Reichek participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: Under the heading “Court Costs,” we STRIKE the term $286.00.

Under the heading “Terms of Plea Bargain (if any),” we STRIKE the words “5 Years TDC” and add the term “N/A.”

–8–