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508 S.W.2d 616

McClintick v. State

Court of Criminal Appeals of Texas

Decided February 27, 1974

Court of Criminal Appeals of Texas · decided 1974-02-27

Key passage — most relied on by later courts

“This portion of a criminal trial is often referred to as the allocution portion of the trial. Allocution is the common law right of a defendant in a criminal trial, including a trial for criminal contempt, to “present his personal plea to the Court in mitigation of punishment before sentence is imposed.” Although article 42.07 of the code of criminal procedure prohibits imposition of sentence only on the grounds of prior pardon, incompetence to stand trial, or mistaken identity, it still grants a defendant the opportunity to speak and to lodge any objection to the sentence before it is pronounced. In interpreting article 42.07 as permitting a defendant’s common law right of allocution, we should look to the Texas Court of Criminal Appeals’s instruction regarding the effect of a statute on common law rights: It is well-established that, ordinarily, a statute must be interpreted according to its plain meaning, no more and no less. And, it is equally well-established that a statute must not be interpreted as abrogating a principle of the common law unless such overruling is clearly indicated, either by the express terms of the statute or by necessary implication from the language used. This second canon is based on the reasonable supposition that if the Legislature intended to overrule a principle of the common law, then it would have made its intent clear.”

quoted by 1 later decision, including Jefferson Jackson Jarvis, III v. State

“Appellant next complains of error “in denying appellant his right of allocution.” He argues that the provisions of Vernon’s Ann. C.C. P., Art. 42.07, mandates that, prior to sentencing, he be asked if he has anything to say why the sentence should not be pronounced. The record shows that such question was not asked by the trial court. Even though Art. 42.07 does provide that such question be asked of appellant, it (Art. 42.07) further provides that only certain specified “reasons” can be shown “on account of which sentence cannot be pronounced.” There were no objections to the court’s failure to inquire of the appellant if he had anything to say why the sentence should not be pronounced against him. There was no contention then or now that any of the statutory reasons set out in Art. 42.07 to prevent the pronouncement of sentence ever existed.”

quoted by 1 later decision, including Eisen v. State

Relies on Green v. United States · Valdez v. State · Graham v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1974-02-27

How this case has been cited

Cited by 8 later decisions — most recently May 2014

8 state decisions

4019741980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1OPINION ON THE APPELLANT’S MOTION FOR REHEARING

DALLY, Commissioner.

¶2The Appellant’s Motion for Leave to File the Motion for Rehearing was granted. The appellant complained that due consideration was not given to the following ground of error raised in his appellate brief filed in the trial court.

“The failure of the trial court to inquire of the appellant if he had anything to say in his own behalf prior to sentencing rendered the sentence illegal.”

¶3It is the appellant’s contention that Article 42.07,1 Vernon’s Ann.C.C.P. does not *618replace the common law right of allocution; that is, the opportunity for a defendant to present his personal plea to the Court in mitigation of punishment before sentence is imposed.2 He argues that therefore Article 1.27, V.A.C.C.P.3 would give him the right to common law allocu-on.

¶4The appellant admits that he did not raise this contention before the trial court prior to the imposition of sentence. We therefore find that nothing is presented for review. See Graham v. State, 498 S.W.2d 197 (Tex.Cr.App.1973); Valdez v. State, 479 S.W.2d 927 (Tex.Cr.App.1972); Johnson v. State, 14 Tex.Cr.R. 306 (1883).

¶5The appellant’s motion for rehearing is overruled.

¶6Opinion approved by the Court.

¶7. Article 42.07, Y.A.C.C.P. 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 insane; and if sufficient proof be shown to satisfy the court that the allegation is well-founded, no sen-508 S.W.2d — 39Vz fence shall be pronounced. Where there is sufficient time left, a jury may be impaneled to try the issue. Where insufficient time does not remain, the court shall order the defendant to be confined safely until the next term of the court, and shall then cause a jury to be impaneled to try such issue;
“3. Where there has not been a motion for a new trial or a motion in arrest of judgment made, the defendant may answer that he has good grounds for either or both of these motions and either or both motions may be immediately entered and disposed of, although more than ten days may have *618elapsed since the rendition of the verdict; and
“4. 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 as to his identity.”

¶8. Some of the history of common law allocution is recited in Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961).

¶9. Article 1.27, V.A.C.C.P. provides:

“If this Code fails to provide a rule of procedure in any particular state of case which may arise, the rules of the common law shall be applied and govern.”
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