Paul Thomas Bleuel v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00374-CR
__________________

PAUL THOMAS BLEUEL, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. F18-28547
__________________________________________________________________

MEMORANDUM OPINION

Appellant Paul Thomas Bleuel (“Bleuel”) appeals the trial court’s revocation

of his community supervision. In two issues, he argues that he was denied his right

to be heard and his right to allocution at his sentencing hearing. We affirm.

Background

On January 24, 2018, a grand jury indicted Bleuel for the offense of third-

degree felony stalking. See Tex. Penal Code Ann. § 42.072(b). Under a plea bargain

agreement, Bleuel pleaded guilty to the offense charged. On November 5, 2018, the

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trial court accepted the plea, and the trial court deferred adjudication of guilt and

placed Bleuel on community supervision for ten years and imposed a $1,000 fine.

The trial court also signed a Deferred Adjudication Order, Special Condition of

Community Supervision, and Order Amending Terms of Community Supervision

listing the conditions of Bleuel’s community supervision. The terms were also

amended by additional orders in 2019, 2020, 2022, and 2023.

On July 19, 2023, the State filed a Motion to Revoke Unadjudicated

Probation, which alleged that Bleuel had violated five of the terms of his community

supervision, including failing to maintain a GPS monitoring device, failing to report

to the Jefferson County Community Supervision and Corrections Department,

failing to provide verification of community service performed, failing to provide

verification of completing Moral Reconation Therapy (MRT), and failing to pay

court assessed fees.

The State filed a First Amended Motion to Revoke Unadjudicated Probation

on September 26, 2023, adding an additional allegation that Bleuel had violated the

terms of his community supervision—namely, that he had failed to remain in

Jefferson County, Texas, and he was in Alabama without the permission of the Adult

Probation Department. The record reflects that one of the terms of Bleuel’s

community supervision required him to have no contact with the victim and to

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remain off the premises of an address in Beaumont, Texas, and another address in

Tuscaloosa, Alabama.

There was a hearing on the motion to revoke on November 14, 2023, where

Bleuel was present and represented by counsel. The trial court stated that Bleuel had

previously pleaded “true” to counts 1 through 5 of the State’s Motion to Revoke

Unadjudicated Probation. The trial court further stated it had received an updated

report, and the State had filed its amended motion to revoke that added an additional

allegation that Bleuel had failed to “remain in Jefferson County, Texas, as ordered

and that [he] was in the state of Alabama on July 18th of 2023, without

permission[,]” to which Bleuel pleaded “true.” After the trial court found the six

alleged violations true, the trial court asked if “everyone had an opportunity to

review the presentence report[,]” and counsel for the State and for Bleuel both

responded that they had reviewed the report. When the trial court asked if there were

any additions or corrections, Bleuel himself stated, “Yeah.” The trial court clarified

that it was addressing the attorneys, and defense counsel told the trial court she had

reviewed the report with Bleuel. The trial court asked Bleuel if there was something

wrong in the report, and the following exchange occurred:

The Defendant: . . . I wasn’t there to cause any problems. . . . I had no
intentions of harming anybody because I know - -

The Court: What were you going there for?

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The Defendant: I didn’t know where [I] was. I started off in West Texas
and went northeast coast.

....

The Court: I don’t believe that you randomly ended up in the same
place.

[Prosecutor]: He couldn’t have gone to West Texas from the time - -

The Court: We had him on his license plate readers.

[Prosecutor]: He cut the monitor off, and we were notified. . . . He went
straight to Alabama.

The Court: . . . we were all [] concerned about what was going on when
you cut that monitor off and you took off at a high rate [of] speed and
went straight to Alabama. So you can just stop with whatever else
you’re talking about because it makes no difference because you are
trying to manipulate and you are lying. . . . I’ve dealt with this for as
long as - - I’ve probably dealt with any case. Y’all could make argument
but . . .

The Defendant: Yes.
...
. . . I’ve done the monitor before successfully. I’m under less
stress now with doing more or less hours work - -

The Court: Here’s the thing, Mr. Bleuel, the only [] wish today is that I
had a higher range of punishment because I want for [the victim] to
have some sense of peace for as long as possible.

The trial court then found counts 1 through 6 true, found Bleuel guilty of the felony

offense of stalking, and sentenced him to a term of ten years’ imprisonment in the

Institutional Division of the Texas Department of Corrections. The following

exchange then occurred:

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The Defendant: Can I ask a question?

The Court: Yeah.

The Defendant: How do you know that I didn’t - - I start off going
toward West Texas.

The Court: There were license plate - - there is license plate readers on
the inter - -

The Defendant: Is there - -

The Court: Mr. Bleuel.

The Defendant: Yeah.

The Court: There is license plate - - don’t interrupt, okay? They’re all
over the United States now. There are things called license plate
readers. They put in a license plate. And when something like this
happens, they can start tracking. And that’s exactly what happened.
And that’s how the state of Alabama and the people there knew to be
looking and trying to find you, okay? You don’t need - - I need you - -

The Defendant: You - -

The Court: Hang on. Stop talking. I need you to sign that document, so
that - - it just says that you’re getting a copy of it. You have the right to
appeal. That’s all that says. If you’ll sign it, please.

After additional discussion with counsel, the trial court advised Bleuel that mental

health programs would be available in TDC on a voluntary basis. The hearing ended

with the following exchange:

The Defendant: There is nothing I can say to you.

The Court: No, sir.

The Defendant: Now that I’ve done - -
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The Court: Go with the bailiff. Past done.

The trial court signed a Judgment Adjudicating Guilt, setting Bleuel’s sentence of

ten years’ imprisonment, and certified Bleuel’s right of appeal. Bleuel timely

appealed.

Issues

Appellant’s brief states two issues for appeal: (1) he claims that he was denied

his constitutional and statutory right to be heard at his sentencing hearing; and (2)

he alleges that he was denied his right to allocution at his sentencing hearing.

Appellant’s brief discusses the two issues together, as do we.

Appellant argues that an accused’s right to be heard is “fundamental to the

American criminal justice system[,]” citing section 10 of article I of the Texas

Constitution and article 1.05 of the Code of Criminal Procedure. See Tex. Const. art.

I, § 10 (stating that an accused “shall have the right of being heard by himself or

counsel, or both[]”); Tex. Code Crim. Proc. Ann. art. 1.05 (same). He also argues

that he was denied his right to allocution—to speak in mitigation of the punishment

to be assessed—and the right applies to revocation of community supervision cases,

citing Ruedas v. State, 586 S.W.2d 520, 523 (Tex. Crim. App. 1979) and Eisen v.

State, 40 S.W.3d 628, 631, 636 (Tex. App.—Waco 2001, pet. ref’d). Appellant

argues that Rule 32 of the Federal Rules of Criminal Procedure requires a trial judge

to specifically address a defendant and ask if he has anything to say before the court

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sentences him, citing Green v. United States, 365 U.S. 301, 303-04 (1961).

Appellant’s brief also references article 42.07 of the Code of Criminal Procedure.

See Tex. Code Crim. Proc. Ann. art. 42.07 (“Before pronouncing sentence, the

defendant shall be asked whether he has anything to say why the sentence should

not be pronounced against him.”).

While recognizing that a failure to object generally waives error for appeal,

Appellant argues that he “repeatedly apprised the trial court of the continuing denial

of his right to be heard,” and the trial court continually denied him the right to be

heard. Appellant acknowledges that his attempts to address the court were

“inartful[,]” but he argues that it is apparent from the record that he was trying to

speak to the court for himself, and the trial court denied him the right to be heard.

According to Appellant, having been denied the right to be heard, he was denied due

process, and reversal is required.

Standard of Review and Applicable Law

To preserve a complaint for appeal, a party must make a timely and specific

objection or motion at trial, and there must be an adverse ruling by the trial court.

See Tex. R. App. P. 33.1(a). Generally, a failure to object at trial waives error for

appeal. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). We disregard

non-constitutional error that does not affect an appellant’s substantial rights, and

with constitutional error we reverse unless we determine that the error was harmless

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and did not contribute to the appellant’s conviction or punishment. Tex. R. App. P.

44.2(a), (b). Whether a particular constitutional error is harmless beyond a

reasonable doubt is determined by considering “any and every circumstance

apparent in the record that logically informs” the analysis. Snowden v. State, 353

S.W.3d 815, 822 (Tex. Crim. App. 2011).

“An appellant does not have an absolute right to participate in the trial in any

way he pleases. It is a privilege to be exercised in a proper and legitimate manner,

subject to the sound discretion of the trial court in its exercise of its powers to control

the business of the court.” Wingate v. State, 487 S.W.2d 89, 92 (Tex. Crim. App.

1972). We review the trial court’s actions in controlling the business before it under

an abuse of discretion standard. See In re Tennison, 502 S.W.3d 821, 824 (Tex. Crim.

App. 2016) (citing Marquez v. State, 921 S.W.2d 217, 223 (Tex. Crim. App. 1996));

Wheatfall v. State, 882 S.W.2d 829, 838 (Tex. Crim. App. 1994).

Article 1.05 of the Texas Code of Criminal Procedure provides, in relevant

part, that a defendant “shall have the right of being heard by himself, or counsel, or

both[.]” Tex. Code Crim. Proc. Ann. art. 1.05. However, the Texas Constitution does

not guarantee a right to hybrid representation—that is, representation partly by

counsel and partly by the defendant himself. See Robinson v. State, 240 S.W.3d 919,

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922 (Tex. Crim. App. 2007); Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim.

App. 1977). 1

The United States Supreme Court has recognized a common-law right to

allocution. See Green, 365 U.S. at 304 (explaining the common-law right of

allocution is codified in Rule 32 of the Federal Rules of Criminal Procedure). Article

42.07 of the Texas Code of Criminal Procedure provides a statutory right of

allocution:

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

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The Court of Criminal Appeals has explained that a trial court has some
discretion to permit hybrid representation. See Scarbrough v. State, 777 S.W.2d 83,
92 (Tex. Crim. App. 1989) (“[A] trial court may certainly permit hybrid
representation in its discretion.”); Webb v. State, 533 S.W.2d 780, 784 n.2 (Tex. Crim.
App. 1976) (“[A] patient trial judge may allow both counsel and the accused to
jointly participate in the case.”). In this case, the record does not reflect that
Appellant sought hybrid representation, nor does it show that the trial court granted
it. See Falk v. State, No. AP-77-071, 2021 Tex. Crim. App. Unpub. LEXIS 262, at
*33 (Tex. Crim. App. May 19, 2021) (not designated for publication) (declining to
revisit the general rule against hybrid representation where appellant “did not clearly
and unequivocally inform the trial judge that he believed himself entitled to hybrid
representation[]”).
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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 his identity.

Tex. Code Crim. Proc. Ann. art. 42.07 (“Reasons to Prevent Sentence”); see also

generally Casey v. State, 924 S.W.2d 946 (Tex. Crim. App. 1996) (applying article

42.07 to sentencing in a probation revocation proceeding); Eisen, 40 S.W.2d at 636

(same).

This Court addressed a failure to follow article 42.07 in Hernandez v. State,

628 S.W. 2d 145, 147 (Tex. App.—Beaumont 1982, no pet.):

Appellant next complains of error “in denying appellant his right of
allocution.” He argues that the provisions of [] 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.

Preservation of complaints for review by appellate courts is required by our appellate

rules. Tex. R. App. 33.1. A complaint about the court’s failure to follow article 42.07

is waived if not made in the trial court. Id.; Gardiner v. State, Nos. 09-16-00192-CR

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& 09-16-00196-CR, 2017 Tex. App. LEXIS 5654, at *5 (Tex. App.—Beaumont

June 21, 2017, pet. ref’d) (mem. op., not designated for publication).

Similarly, the right to allocution is waived on appeal if the defendant fails to

timely make an objection regarding allocution at trial and obtain an express or

implied ruling. See Tex. R. App. P. 33.1(a); Vasquez v. State, 605 S.W.3d 734, 739

(Tex. App.—Houston [1st Dist.] 2020, no pet.). We also agree with our sister courts

who have concluded that the right to allocution is not a constitutional right. See

Casselberry v. State, No. 05-22-00014-CR, 2022 Tex. App. LEXIS 7867, at *2 (Tex.

App.—Dallas Oct. 25, 2022, no pet.) (mem. op., not designated for publication);

Vela v. State, No. 13-21-00245-CR, 2022 Tex. App. LEXIS 1974, at **5-6 (Tex.

App.—Corpus Christi–Edinburg, Mar. 24, 2022, no pet.) (mem. op., not designated

for publication); Vasquez, 605 S.W.3d at 740 (citing Eisen, 40 S.W.3d at 636).

Analysis

For Appellant to complain on appeal that he was denied the right to be heard

or the right of allocution, the record must reflect that Appellant timely objected in

the trial court. See Casselberry, 2022 Tex. App. LEXIS 7867, at *4; Vasquez, 605

S.W.3d at 739; Gardiner, 2017 Tex. App. LEXIS 5654, at *5. In this case, the record

reflects that, while the trial court did not specifically ask Appellant whether he had

anything to say why the sentence should not be pronounced against him, Appellant

did in fact address the trial court at several points during the hearing on the motion

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to revoke. The record does not show that Appellant or his counsel objected in the

trial court that Appellant was not permitted to speak. We disagree that Appellant’s

“inartful attempts to address the court” constituted an objection that preserved appeal

because the record does not reflect that any of the comments clearly conveyed that

Bleuel was objecting because he believed he had the right to be heard and to allocute.

See Tex. R. App. P. 33.1; Laws v. State, 640 S.W.3d 227, 229 (Tex. Crim. App.

2022) (to preserve error for appeal, an objection must be timely and sufficiently

specific to alert the trial court to the nature of the complaint and provide an

opportunity to address and correct the purported error). Appellant’s comments to the

trial court failed to state an objection or a specific issue under article 42.07 (or

otherwise). We cannot say the trial court abused its discretion. See In re Tennison,

502 S.W.3d at 824; Wingate, 487 S.W.2d at 92.

The record also does not reflect that any comments by Appellant in the trial

court related to the enumerated reasons codified in article 42.07 concerning why a

sentence cannot be pronounced, and there was no contention in the trial court nor on

appeal that any of the statutory reasons in article 42.07 to prevent the pronouncement

of sentence existed. See Tex. Code Crim. Proc. Ann. art. 42.07; Gardiner, 2017 Tex.

App. LEXIS 5654, at *5; Hernandez, 628 S.W.2d at 147. We conclude that

Appellant failed to preserve his complaint for our review. See Tex. R. App. P.

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33.1(a); Gardiner, 2017 Tex. App. LEXIS 5654, at *5; Hernandez, 628 S.W.2d at

147.

As to Appellant’s argument that Rule 32 of the Federal Rules of Criminal

Procedure requires the trial court to address the defendant personally to allow him

to speak or present any information to mitigate the sentence, the Federal Rules of

Criminal Procedure only apply to federal criminal proceedings, and State trial courts

are not bound by those rules. See Fed. R. Crim. P. 1(a)(1) (explaining that the rules

apply “in all criminal proceedings in the United States district courts, the United

States courts of appeals, and the Supreme Court of the United States[]”),

32(i)(4)(A)(ii); see also Norman v. State, No. AP-76,063, 2011 Tex. Crim. App.

Unpub. LEXIS 126, at **16-17 (Tex. Crim. App. Feb. 16, 2011) (not designated for

publication) (explaining that federal rules of criminal procedure do not apply to state

court proceedings in Texas courts). We also note that the trial court gave the

defendant the opportunity to say something before she pronounced her decision, and

the defendant gave the court an excuse of “I didn’t know where [I] was. I started off

in West Texas and went northeast coast.” The trial court did not believe that the

defendant just coincidentally cut his monitor off and happened to randomly drive to

Alabama, one of the locations where he expressly was forbidden to go under the

terms of his deferred adjudication.

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But even if Bleuel had preserved error on his appellate complaints, and

assuming without deciding that the trial court erred by denying Appellant the right

to be heard or the right to allocute, any such error is non-constitutional. See

Casselberry, 2022 Tex. App. LEXIS 7867, at *2; Vela, 2022 Tex. App. LEXIS 1974,

at **5-6; Vasquez, 605 S.W.3d at 740 (citing Eisen, 40 S.W.3d at 636). We disregard

non-constitutional error that does not affect Appellant’s substantial rights, and we

reverse only if we determine that the error contributed to Appellant’s conviction or

punishment. See Tex. R. App. P. 44.2(a), (b). The record reflects that both Appellant

and his counsel addressed the trial court, so we cannot say that Appellant was denied

“the right of being heard by himself or counsel, or both[.]” See Tex. Const. art. I,

§ 10; Tex. Code Crim. Proc. Ann. art. 1.05. At the hearing on the motion to revoke,

Appellant pleaded true to each of the allegations that he violated the terms of his

community supervision, including the allegation that he had gone to Alabama. The

trial court adjudicated Appellant guilty and sentenced him to a term of ten years of

confinement in TDC. On appeal, Appellant does not complain of error in the

adjudication of his guilt nor his sentence, and we conclude Appellant has not shown

that he was harmed by any alleged error by the trial court to allow Appellant to speak

or to allocute. See Tex. R. App. P. 44.2(a), (b); see also Vasquez, 605 S.W.3d at 740

(concluding that alleged denial of right to allocute did not affect appellant’s

substantial rights where she did not make a record showing what additional pleas or

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evidence she would have offered had she addressed the court); Hernandez, 628

S.W.2d at 147 (quoting Tenon v. State, 563 S.W.2d 622, 624 (Tex. Crim. App.

1978)). Therefore, we conclude that Appellant has not shown that the alleged error

contributed to his conviction or punishment. See Tex. R. App. P. 44.2(a), (b).

We overrule both of Appellant’s issues on appeal, and we affirm the trial

court’s judgment.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on June 25, 2024
Opinion Delivered July 24, 2024
Do Not Publish

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

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