ISAAC MUNOZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED as MODIFIED; Opinion Filed June 9, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01111-CR
............................
ISAAC MUNOZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F05-52075-TI
.............................................................
OPINION
Before Justices Moseley, Francis, and Lang
Opinion By Justice Moseley
        Appellant Isaac Munoz waived a jury and pleaded guilty to aggravated robbery. The trial court deferred adjudicating guilt and placed appellant on ten years' community supervision. The State later moved to adjudicate guilt, alleging appellant committed three new aggravated assault offenses and other violations of his community supervision. After a hearing, the trial court granted the motion, adjudicated appellant guilty, and assessed punishment at thirty years' imprisonment. In two points of error, appellant contends the trial court's judgment should be modified to reflect his plea of not true to the allegations in the motion to adjudicate and the trial court erred by depriving him of a separate punishment hearing following adjudication. We affirm the judgment as modified.         In his second point of error, appellant, citing Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992), contends he was entitled to a separate punishment hearing, and the trial court deprived him of the opportunity to present evidence focused on punishment. The State responds that appellant waived any error because he did not complain at trial or in a motion for new trial. We agree with the State. See Tex. R. App. P. 33.1; Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.).
        Moreover, contrary to appellant's argument, Issa does not stand for the absolute right to a separate punishment hearing. Instead, it requires a defendant have an opportunity to present evidence in mitigation of punishment. See Pearson v. State, 994 S.W.2d 176, 178 (Tex. Crim. App. 1999). The record shows appellant had the opportunity to present evidence during the proceedings. Appellant called several witnesses to testify on his behalf. See Castaneda, 135 S.W.3d at 723. It is immaterial that the presentation of this evidence occurred before the actual words of adjudication. See Hardeman v. State, 1 S.W.3d 689, 691 (Tex. Crim. App. 1999). We overrule appellant's second point of error.
        In his first point of error, appellant argues the judgment incorrectly recites he pleaded true to the motion to adjudicate. He asks us to modify the judgment to reflect his plea of not true to the allegations in the State's amended motion to adjudicate. The State agrees the judgment should be modified to show appellant pleaded not true to the allegations.
        After reviewing the record, we agree the judgment is incorrect. We sustain appellant's first point of error. We modify the trial court's judgment to reflect a plea of not true to the motion to adjudicate. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        As modified, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
071111f.u05