Joaquin Gomez v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00129-CR
No. 02-19-00130-CR
___________________________
JOAQUIN GOMEZ, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 213th District Court
Tarrant County, Texas
Trial Court Nos. 1548306D, 1551982D
Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Appellant Joaquin Gomez appeals from the trial court’s judgments of
conviction for the offenses of deadly conduct and assault on a police officer. In three
issues, Gomez contends that the trial court infringed on his constitutional and
statutory right to remain silent by inviting him to make a statement immediately
before pronouncing the sentence, that the trial court erred by inviting him to make a
statement immediately after closing arguments, and that the United States
Constitution or the Texas Code of Criminal Procedure requires the trial court to
admonish a defendant before the defendant provides testimony or statements in his
own defense. Because we hold that Gomez forfeited his first two issues and that the
trial court had no duty to admonish him that he had a right not to testify during the
punishment phase, we affirm.
Background
In separate indictments, the State charged Gomez with one count of deadly
conduct by discharging a firearm and one count of assault of a police officer. See Tex.
Penal Code Ann. §§ 22.01, 22.05.
Gomez pled guilty with no bargain. The trial court accepted Gomez’s plea, and
adjudicated him guilty, and at the same hearing, heard arguments and evidence as to
sentencing. After the State concluded its closing argument, the trial court had the
following exchange with Gomez, with no objection by Gomez:
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THE COURT: Mr. Gomez, you obviously have the right to say
anything you’d like for the Court to hear prior to your sentencing. You
certainly don’t have to, but you certainly have the right to speak to the
Court prior to being sentenced. Anything you’d like to say?
[GOMEZ]: I was really young, dumb, and I felt—when I was in
Green Bay, I felt—thinking about it every single day. I was thinking
about what I did, and I just need to change. You know, I was 17, 14, 15.
I just felt really bad for what I did. And I wasn’t thinking. I wasn’t
thinking. I really feel bad. I just need one more chance to prove myself.
One more.
THE COURT: Anything else?
[GOMEZ]: No, sir.
The trial court then took a recess. When the hearing resumed, the trial court
sentenced Gomez to five years’ confinement for the deadly conduct offense and ten
years’ confinement for the assault offense, to run concurrently.
Discussion
In Gomez’s first two issues, he argues that the trial court violated his right to
remain silent by inviting testimony from him after he had elected not to testify. He
argues additionally that “Texas law does not require, nor does case law permit, a trial
judge to personally address the defendant to allow an opportunity to speak at a
[p]unishment hearing.” He asserts that instead of honoring his decision not to testify,
“the trial court, without any known authority, invited [him] to break his silence.”
Gomez further argues that “because the trial judge interjected his solicitation as his
last action before beginning his deliberation, the timing left [Gomez] particularly
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susceptible to inadvertent influence.” However, as we explain, Gomez has forfeited
these two issues.
To preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion stating the specific grounds, if not
apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v.
State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). Further, the party must obtain an
express or implicit adverse trial-court ruling or object to the trial court’s refusal to
rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262–63 (Tex. Crim.
App. 2013). Constitutional issues such as Gomez’s are not immune from
preservation rules. “[I]f a party fails to properly object to constitutional errors at trial,
these errors can be forfeited.” Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App.
2012). “In the absence of proper procedural perfection of error, the only type of
errors that may be raised for the first time on appeal are complaints that the trial court
disregarded an absolute or systemic requirement or that the appellant was denied a
waivable-only right that he did not waive.” Reyes v. State, 361 S.W.3d 222, 229 (Tex.
App.—Fort Worth 2012, pet. ref’d). The right against self-incrimination is neither an
absolute requirement nor a waivable-only right; rather, it is a forfeitable right. Johnson
v. State, 357 S.W.3d 653, 658 (Tex. Crim. App. 2012) (stating that “[j]ust as a
defendant can fail to invoke his Fifth Amendment privilege, a defendant can also
voluntarily forfeit his Fifth Amendment privilege if he freely chooses to take the stand
and make incriminating statements” and that “[t]his is true even if not done
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knowingly and intelligently”). A defendant forfeits the right by not objecting when
the trial court denies the right.1 See Larios v. State, No. 13-15-00022-CR,
2015 WL 9487107, at *4 (Tex. App.—Corpus Christi–Edinburg Dec. 29, 2015, no
pet.) (mem. op., not designated for publication) (“Texas case law makes clear that a
defendant’s rights under the Fifth Amendment . . . may be forfeited by failing to
properly preserve error when those rights are denied by the trial court.”); Reyes, 361 at
229. Here, Gomez, who was represented by counsel, made the statements to the trial
court without objection. Accordingly, if the trial court’s invitation deprived him of
the privilege against self-incrimination, he forfeited his complaints by failing to object.
See Reyes, 361 S.W.3d at 229; Davis v. State, Nos. 02-05-094-CR, 02-05-106-CR,
2006 WL 413148, at *2 (Tex. App.—Fort Worth Feb. 23, 2006, pet. ref’d) (mem. op.,
not designated for publication) (holding that the appellant voluntarily forfeited her
complaint under the Fifth Amendment when she answered without objection the trial
court’s questions at sentencing).
Gomez’s cited cases are unavailing because none hold that the privilege against
self-incrimination may not be forfeited. Estelle v. Smith, 451 U.S. 454, 463, 101 S. Ct.
1866, 1873 (1981), holds that the right against self-incrimination applies at sentencing.
Mitchell v. United States, 526 U.S. 314, 325, 119 S. Ct. 1307, 1313 (1999), and Carroll v.
The right is self-executing when the defendant is threatened with a penalty for
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remaining silent, Johnson, 357 S.W.3d at 658, but the record shows no such threat here.
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State, 42 S.W.3d 129, 132 (Tex. Crim. App. 2001), both hold that a defendant’s guilty
plea does not waive the right at sentencing. Finally, Lucero v. State, 91 S.W.3d 814,
815, 817 (Tex. App.—Amarillo 2002, no pet.), addresses whether the defendant
waived his right against self-incrimination by voluntarily testifying without objection
at sentencing. It does not discuss whether the right may be forfeited and does not
discuss any of the cases that have held that it may. We overrule Appellant’s first two
issues.
In Gomez’s third issue, he argues that the United States Constitution and the
Texas Code of Criminal Procedure require the trial court to admonish a defendant
before the defendant provides testimony or statements in his own defense and that
the trial court’s failure to provide such admonishments here is reversible error. A
defendant’s right to be properly admonished is a waivable-only right. Bessey v. State,
239 S.W.3d 809, 812 (Tex. Crim. App. 2007). We will therefore address this issue’s
merits. See Reyes, 361 S.W.3d at 229. The Texas Court of Criminal Appeals has held
that “the trial court has no duty to inform a testifying defendant, represented by
counsel, of his right not to testify.” Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim.
App. 2005); see also Johnson, 357 S.W.3d at 658 n.3 (“[A] trial judge has no independent
duty to implement a defendant’s Fifth Amendment privilege.”). While Gomez asserts
that “the case law is uncontroverted in providing that a defendant must . . . receive
admonishments at a contested [p]unishment hearing,” he cites no law for the
proposition that a trial court has an affirmative duty to admonish a defendant at
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sentencing of his right against self-incrimination. We therefore hold that the trial
court had no duty to admonish Gomez of his privilege against self-incrimination at
sentencing, and we overrule his third issue.
Conclusion
Having overruled Gomez’s three issues, we affirm the trial court’s judgments.
/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 9, 2020
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