IN THE
TENTH COURT OF APPEALS
No. 10-04-00224-CR
Joshua Tingler,
Appellant
v.
The State of Texas,
Appellee
From the 252nd District Court
Jefferson County, Texas
Trial Court No. 83681
O p i n i o n
Appellant Joshua Tingler pled guilty to the felony offense of aggravated robbery. He was placed on deferred adjudication community supervision for five years and was fined $1,500. The State moved to revoke; the trial court sustained the motion to revoke, adjudicated Tingler guilty, and sentenced him to thirty years in prison.
In his first issue, Tingler asserts that the trial court, after finding him guilty, erred in not affording him the opportunity to present mitigating evidence on his involvement in the crime for which he was convicted. At the hearing in question, after Tingler’s attorney made a preliminary statement that the trial court should continue probation (community supervision), the prosecutor commented that Tingler had pointed a gun at the robbery victim’s head, then recommended revocation and a substantial prison sentence.
The trial court then asked Tingler a few questions and made comments to Tingler about his conduct while on community supervision. The trial court then stated:
You’re out there doing whatever you want to do. And what I can’t afford to do, sir, is I can’t afford to take a chance for you to go break in somebody else’s house that lives here in Jefferson County and stick a gun in their face. I can’t afford that.
With all that said, I find the evidence to be sufficient to find Counts 4, 5, 6, 7, 8, 9, 10 and 11 to be true. They are, therefore, true. I hereby revoke your unadjudicated probation, I now find you guilty of the offense of aggravated robbery, I assess your punishment at confinement in the Institutional Division for a period of 30 years. You will be given credit for any and all time that you may be entitled to by law. Have a good day, and good luck to you.
Thereafter, Tingler filed a verified motion for new trial, asserting that the trial court’s severe sentence was the result of its misperception about Tingler’s involvement in the underlying offense. Tingler asserted that he was not the gunman in the underlying aggravated robbery and that he was only present in the vehicle while his co-defendant committed the offense, outside Tingler’s presence. The motion requested an evidentiary hearing so that he could present this mitigating evidence. Without holding a hearing, the trial court overruled the motion for new trial.
After the trial court finds the defendant guilty during a hearing on a petition to proceed to adjudication, the defendant is entitled to a punishment hearing after the adjudication of guilt, and the trial judge must allow the accused the opportunity to present punishment evidence. Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992). To preserve a complaint that the trial court erred in failing to hold a separate punishment hearing, the defendant must timely object or file a motion for new trial if not afforded the opportunity to object. Vidaurri v. State, 49 S.W.3d 880, 885-86 (Tex. Crim. App. 2001); Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999).
In its brief, the State concedes that Tingler was not provided an adequate opportunity to present mitigating evidence before sentencing “on the narrow issue of his actual role in the offense for which he had been adjudicated as it bears on punishment.” (State’s Brief at 10-11). The State also agrees that Tingler preserved his complaint by filing a motion for new trial. Accordingly, we sustain Tingler’s first issue.
Because we are remanding for a punishment hearing, we need not address Tingler’s second issue. But we note that he complains that the trial court erred by failing to hold an evidentiary hearing on his motion for new trial, and the State effectively concedes that the trial court abused its discretion in not holding a hearing on the motion.
We affirm the judgment of conviction. We reverse that portion of the judgment assessing punishment of a thirty-year sentence and remand this cause to the trial court for a punishment hearing consistent with this opinion. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2005).
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Judgment of conviction affirmed
Punishment reversed, cause remanded
Opinion delivered and filed February 8, 2006
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