COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
SILAS SIMOENOE PANZU, a/k/a SILAS S. PANZU, Appellant, v. THE STATE OF TEXAS, Appellee. |
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No. 08-10-00111-CR Appeal from 213th District Court of Tarrant County, Texas (TC # 1053499D) |
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O P I N I O N
Silas Simoenoe Panzu appeals the trial court’s order revoking community supervision and adjudicating him guilty of delivery of a controlled substance, one gram or more but less than four grams of cocaine. On appeal, Appellant argues the adjudication proceeding violated his due process rights under both the United States Constitution and the Texas Constitution because the trial court revoked his community supervision and assessed punishment without holding a separate hearing on the question of punishment. For the reasons that follow, we affirm.
FACTUAL BACKGROUND
On March 23, 2007, Appellant pled guilty to the offense of delivery of a controlled substance, one gram or more but less than four grams of cocaine, in exchange for deferred adjudication with four years’ community supervision. Two years later, on June 12, 2009, the State filed its First Amended Second Petition to Proceed to Adjudication. In four paragraphs, the petition alleged that Appellant violated the conditions of his community supervision in the following ways: (1) on or about November 7, 2008, Appellant committed the offense of possession of marijuana, two ounces or less; (2) on or about June 3, 2009, Appellant gave a fictitious name, to wit: Tahir Nefermaat El Bey, to a police officer who had lawfully arrested or detained him; (3) Appellant failed to complete his court ordered community service hours; and (4) Appellant failed to report to his community supervision officer as scheduled during the month of May 2009.
On March 18, 2010, the trial court held a hearing on the State’s petition. Appellant pled not true as to all four counts. At the hearing, the State presented six witnesses, and the defense presented two witnesses, including Appellant, who testified on his own behalf. At the conclusion of the evidence, and after final arguments by both sides, the trial court found the allegations in paragraphs one and two not true and the allegations in counts three and four true. The trial court then adjudicated Appellant guilty of the underlying possession charge, and immediately sentenced him to two years’ imprisonment.
Appellant filed a motion for a new trial alleging: (1) that the verdict is contrary to the law and evidence; and (2) that he received ineffective assistance of counsel based on his attorney’s failure to timely inform him as to new allegations. Although no ruling on the motion for a new trial appears in the record, the motion was overruled by operation of law. See Tex.R.App.P. 21.8(a), (c). This appeal follows.
SEPARATE PUNISHMENT HEARING
In two issues, Appellant complains that the trial court erred by failing to conduct a separate punishment hearing after finding allegations three and four to be true. According to Appellant, the trial court’s failure to hold a punishment hearing deprived him of the opportunity to exercise his fundamental right to put on evidence in mitigation of punishment. The State initially responds by asserting that Appellant failed to properly preserve his complaints for Appellate review. We agree. In general, a party must make a timely, specific, objection and obtain a ruling on the objection in order to preserve a complaint for appellate review. Tex.R.App.P. 33.1(a); Pearson v. State, 994 S.W.2d 176, 179 (Tex.Crim.App. 1999). However, the Court of Criminal Appeals has recognized an exception to the general rule in certain limited circumstances. See Issa v. State, 826 S.W.2d 159 (Tex.Crim.App. 1992).
In Issa, the trial court revoked the defendant’s deferred adjudication probation, adjudicated the defendant guilty, and imposed defendant’s sentence in one ruling, and then left the bench without giving the defendant an opportunity to object to the actions taken. Issa, 826 S.W.2d at 160. Issa later moved for new trial on the ground that the trial court had erred in failing to provide him an opportunity to present evidence in mitigation of punishment. Id. The Court of Criminal Appeals looked to the following fairness language contained in Duhart v. State, 668 S.W.2d 384 (Tex.Crim.App. 1984):
[f]airness would dictate that a defendant be accorded an opportunity to offer appropriate evidence in mitigation of punishment after the revocation of ‘probation’ and the adjudication of guilt and before the assessment of punishment if such evidence has not already been elicited during the proceedings, particularly if the defendant requests the opportunity.
Issa, 826 S.W.2d at 161, citing Duhart, 668 S.W.2d at 387. The court then held that when a trial court finds a violation as alleged by the State true and adjudicates a previously deferred finding of guilt, the court must conduct a separate “second phase” to determine punishment. Issa, 826 S.W.2d at 161.
In Pearson, the court acknowledged that under the circumstances in Issa, a complaint could be preserved by raising it for the first time in a motion for a new trial. Pearson, 994 S.W.2d at 179. But Pearson also modified Issa’s insistence on a separate punishment hearing concluding that it is immaterial that the opportunity to present evidence came before the actual words of adjudication as long as the defendant had the opportunity to present evidence during the proceedings. Id.
Here, Appellant never requested a separate punishment hearing and did not object when the trial court proceeded to sentencing immediately after adjudicating him guilty. Appellant acknowledges his failure to object, but contends his situation places him in the same position as Issa, such that his failure to object did not waive his complaint on appeal. Even if Issa applies, Appellant still failed to preserve error because he did not raise a complaint about the trial court’s procedure in his motion for new trial. He had three opportunities to do so. He could have requested a separate punishment hearing, he could have objected to the lack of a punishment hearing when the trial court adjudicated him guilty, and he could have moved for a new trial on that basis. Because he did not avail himself of any one of these opportunities, he has failed to preserve the issue for appellate review. See Tex.R.App.P. 33.1; Euhler, 218 S.W.3d at 92; Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App. 2001). Having overruled both issues for review, we affirm the judgment of the trial court.
July 6, 2011
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Rivera, JJ.
(Do Not Publish)