Dylan Gauvin v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 13, 2023
• Docket: 09-22-00097-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00096-CR NO. 09-22-00097-CR __________________

DYLAN GAUVIN, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause Nos. 20-03-03470-CR and 20-03-03473-CR __________________________________________________________________

MEMORANDUM OPINION

After Dylan Gauvin pleaded guilty, the trial court conducted a

punishment hearing on trial court causes 20-03-03470-CR and 20-03-

03473-CR, which resulted in Gauvin receiving concurrent, 15-year

1 sentences. Gauvin’s convictions are based on indictments charging him

with committing two robberies on March 9, 2020. 1

Gauvin appealed. In Gauvin’s first issue, he asserts that despite the

failure of the attorney who represented him in his trial to object to the

prosecutor’s closing argument, the prosecutor argued facts outside the

record and mischaracterized other “key facts in this case,” which he

argues harmed him by adversely affecting his sentence. According to

Gauvin, had the prosecutor not made the improper arguments, the trial

court would probably have given him a more lenient sentence. In

Gauvin’s second issue, he argues that when conducting his punishment

hearing, the trial court failed to expressly pronounce that Gauvin had

used a deadly weapon when he committed the robberies.

For the reasons explained below, we conclude Gauvin’s issues lack

merit. We will affirm.

Background

Given the limited scope of the issues that Gauvin has raised in his

appeal, we limit our discussion of the background to the information

1Tex. Penal Code Ann. § 29.03(a)(2).

2 required to explain the Court’s resolution of the arguments Gauvin has

relied on to support the point of error her raised in his appeal.

In March 2020, the State indicted Gauvin for committing two

aggravated robberies, alleging that he committed both robberies on or

about March 9, 2020. Both indictments allege that Gauvin used a deadly

weapon in committing the robberies. As to the deadly weapon allegation

in the respective indictments, they each state: “. . . and the defendant did

then and there use or exhibit a deadly weapon, to-wit: a firearm[.]”

After Gauvin signed judicial confessions in the two cases, which

were based on a plea agreement, Gauvin appeared in court and pleaded

guilty as charged to the allegations in the indictments. In the judicial

confessions that Gauvin signed, which are in the Clerk’s Record, Gauvin

elected to have the trial assess his punishment.

In February 2023, the trial court conducted a punishment hearing

to assess Gauvin’s sentences. Seventeen witnesses were called as

witnesses in the two-day hearing, eight by the State and nine by Gauvin.

On appeal, Gauvin relies on three arguments to support his first issue,

which asserts the prosecutor mischaracterized certain “key facts” in

3 closing argument. First, he claims that when the prosecutor made the

following argument, he “mischaracterize[d] key facts[:]”

In this case, I found it very, very sad that [two individuals that Gauvin robbed and who testified in Gauvin’s punishment hearing] are just two blue-collared guys working a minimum wage job through COVID and they had a gun put in their face and when they came to testify, it’s almost expected that if they were going to do that job, that, that’s something they would encounter. I mean, they didn’t have a lot of emotion because for them, that’s part of it. If you work as a clerk at a gas station, you are going to get robbed. Hopefully, they just take the cash from the register and not the car [that was owned by the gas station’s clerk].

Second, Gauvin claims that in rebuttal, the prosecutor made

another argument, also unsupported by the facts in the record. As to that

claim, Gauvin points to the prosecutor’s argument, “it wasn’t a drug-

fueled crime that they [Gauvin] would have you believe. That’s not what

happened. He was making those decisions.” In his brief, Gauvin argues

that the record contains “uncontradicted testimony” that shows Gauvin

“was on marijuana, percocets, and promethazine” when the robberies

occurred. He also relies on testimony elicited in the hearing from his

father, who testified that when Gauvin committed the robberies, he was

“‘probably under some influence’. . . because this is not what we taught

him growing up.” 4 Gauvin’s attorney didn’t object to any parts of the prosecutor’s

closing argument, including any argument the prosecutor presented

during rebuttal. After the parties completed their arguments, the trial

court advised the parties that after considering the evidence, the

seriousness of the crimes, the impact it had on the victims, the age of the

defendant, the defendant’s presentence-investigation report, and the

forms and letters submitted to the court, “it is the order of the Court that

you will receive a 15-year sentence on each cause. They shall run

concurrent. There is an affirmative finding as to the deadly weapon

which will have a bearing on that sentence[.]” That same day, the trial

court signed the judgments of conviction. The judgment in both cases

contain an affirmative finding that Gauvin used a firearm when he

committed the offense.

Analysis

Closing Argument

In Gauvin’s first issue, he complains that in closing argument, the

prosecutor “improperly argued facts not in evidence.” According to

Gauvin, the arguments the prosecutor made were either not based on

facts supported by the evidence, or they mischaracterized the testimony 5 that was properly before the court and admitted into evidence during

Gauvin’s punishment hearing.

As mentioned, however, Gauvin didn’t object to the prosecutor’s

arguments. As a prerequisite to presenting a complaint for appellate

review, the record must show the complaint was made to the trial court

in a timely request, objection, or motion.2 “[A] defendant’s failure to object

to a [closing] argument . . . forfeits his right to complain about the

argument on appeal.” 3

Gauvin concedes he failed to object to the arguments that he made

the subject of his first issue, but he argues under the holding in Janecka

v. State, we must nonetheless reach his complaint about the prosecutor’s

allegedly improper argument because the prosecutor’s arguments, he

claims, resulted in causing “egregious harm.”4 We disagree.

2Tex. R. App. P. 33.1(a); Hernandez v. State, 538 S.W.3d 619, 622

(Tex. Crim. App. 2018). 3Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996);

Hernandez, 538 S.W.3d at 622. 4Janecka v. State, 937 S.W.2d 456, 474 (Tex. Crim. App. 1996).

6 Nearly two decades ago in Estrada v. State, the Court of Criminal

Appeals rejected an argument like the one Gauvin relies on here. 5 In

Estrada, the Court of Criminal Appeals said:

[A]ssuming, as appellant argues, that the prosecution’s argument is so egregious that no instruction to disregard could possibly have cured the harm, then appellant should have moved for a mistrial to preserve the error.6

If any question remained about whether the usual rules of error

preservation apply to preserve the right to complain on appeal about an

opposing party’s allegedly improper closing argument, the Court of

Criminal Appeals answered that question eight years later in Hernandez

v. State, 538 S.W.3d 619, 623 (Tex. Crim. App. 2018). In Hernandez, the

appellant argued that even though he failed to properly preserve his

complaint about the prosecutor’s closing argument, the reviewing court

should “hold that error preservation was not required here due to the

egregious nature of the prosecutor’s argument.” 7 Responding to that

argument, the Court of Criminal Appeals explained the usual rules of

5Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010) (cleaned up). 6Id. 7Hernandez v. State, 538 S.W.3d at 623.

7 error preservation still apply to errors that may be corrected because a

defendant’s right to have a trial free from error is not an absolute

requirement like jurisdiction, which is a requirement that unlike other

rights cannot be waived. 8 In rejecting essentially the same argument that

Gauvin asks us to accept, the Hernandez Court held: “Erroneous jury

argument must be preserved by objection pursued to an adverse ruling;

otherwise, any error from it is waived.” 9

Gauvin concedes the attorney who represented him at trial didn’t

object to the prosecutor’s closing argument. As an intermediate court, we

are required to follow binding precedent in cases decided by the Court of

Criminal Appeals. 10 Because Gauvin waived his right to raise the

arguments on which he relies to support his first issue, the issue is

overruled.

8Id. (citing Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App.

1993)). 9Id. 10See Tex. Const. art. V, § 5(a) (providing that the Texas Court of

Criminal Appeals is the final authority regarding matters of criminal law); State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006), aff’d sub nom. State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007). 8 Deadly-Weapon Finding

In issue two, Gauvin complains “there was never an express deadly

weapon finding” in either the hearing the trial court conducted to accept

his plea or to assess his punishment. Gauvin asks the Court to reform

the judgment and to delete the deadly weapon finding from the trial

court’s judgment. We decline to do so for two reasons.

First, we conclude the trial court made an express determination

that Gauvin used a deadly weapon in committing the robberies.

Generally, “[a]n affirmative deadly weapon finding must be an ‘express’

determination in order to be effective.”11 Gauvin argues the trial court

did not expressly find that he used or exhibited a deadly weapon in the

proceedings on his plea or when it assessed his sentence. The State,

however, disagrees and points to the following language in the

punishment hearing as the trial court’s “affirmative finding” on the

allegation in the indictments that Gauvin used a deadly weapon when he

committed the robberies, noting the trial court said in sentencing Gauvin:

11Guthrie-Nail v. State, 506 S.W.3d 1, 4 (Tex. Crim. App. 2015).

9 “There is an affirmative finding as to the deadly weapon which will have

a bearing on that sentence[.]”

In response to the State’s argument, Gauvin contends that the trial

court didn’t make the above statement as an “affirmative finding[;]”

instead, he claims the trial court’s statement “appears to be referencing

a deadly weapon finding[,]” which he claims the trial court mistakenly

thought it made six months earlier in the hearing it conducted when it

accepted Gauvin’s guilty plea.

In our view, Gauvin is mistaken about the effect we must give to

the statement the trial court made in the sentencing hearing, which was

“[t]here is an affirmative as to the deadly weapon which will have a

bearing on that sentence[.]” To be fair, the trial court could have made

the statement in a way that would have left no doubt about how the trial

court intended it’s statement to be interpreted. For example, the trial

court could have said something like—as to the indictments in trial court

cause numbers 20-03-03470-CR and 20-03-03473-CR, I am finding that

when Gauvin committed the offenses, he used or exhibited a deadly

weapon as alleged in those two indictments.

10 But even though the trial court could have been clearer, construing

the trial court’s statement as an affirmative deadly weapon finding to the

deadly weapon allegations in Gauvin’s indictments is consistent with the

judgments the trial court signed, particularly since the trial court signed

them the same day it conducted Gauvin’s the hearing in which it

determined Gauvin’s punishment. Thus, when considered as a whole, the

record doesn’t support Gauvin’s theory the statement should be

construed as a mistaken reference to some earlier affirmative finding,

one that even Gauvin concedes the trial court did actually make when

accepting Gauvin’s plea.

Second, if the record didn’t contain an express finding (and it does),

the record in this case satisfies the “less explicit language” alternative

that substitutes for the express determination requirements under the

jurisprudence of the Court of Criminal Appeals. 12 Here, deadly-weapon

allegations are included in both Gauvin’s indictments. He signed a

judicial confession in each case, pleading guilty to the allegations of

aggravated robbery “as charged by the indictment[s]”. The indictments

12Id.

11 allege that in the course of committing the thefts and with intent to

obtain or maintain control of the property, Gauvin intentionally or

knowingly threatened the respective victims of the robberies by placing

them “in fear of imminent bodily injury or death, and the defendant did

then and there use or exhibit a deadly weapon, to wit: a firearm[.]” The

hearing on Gauvin’s plea shows that in both cases, Gauvin pleaded guilty

to the charges of aggravated robbery in trial court cause numbers 20-03-

03470-CR and 20-03-03473-CR.

Thus, the record before us satisfies both the express determination

requirement, and the conditions needed to satisfy the “less explicit

language” alternative established by the Court of Criminal Appeals.13

“[I]n a bench trial, a trial judge need not include a deadly-weapon finding

in the oral pronouncement of judgment; if the charging instrument

alleged a deadly weapon, the finding may be included for the first time in

a written judgment.”14 The deadly weapon allegation is included in each

indictment here.

13Id.; see also Ex Parte Huskins, 176 S.W.3d 818, 821 (Tex. Crim.

App. 2005). 14Guthrie-Nail, 506 S.W.3d at 4.

12 For all these reasons, we overrule Gauvin’s second issue.

Conclusion

Because Gauvin’s issues were either not preserved or lack merit,

the judgments in trial court causes 20-03-03470-CR and 20-03-03473-CR

are

AFFIRMED.

HOLLIS HORTON Justice

Submitted on August 4, 2023 Opinion Delivered September 13, 2023 Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.