Michael Wadin Issa v. The State of Texas--Appeal from 54th District Court of McLennan County

MOTION FOR REHEARING DENIED

OCTOBER 4, 1990

NO. 10-89-199-CR

Trial Court

# 87-696-C

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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MICHAEL WADIN ISSA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 54th Judicial District Court

McLennan County, Texas

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OPINION ON REHEARING

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Although Appellant brought four points of error originally, he now brings his second motion for rehearing, complaining in ten points of error of our decision to affirm the trial court's judgment. The motion for rehearing will be denied for the following reasons.

By points one, two, three and six of the motion for rehearing, Appellant complains that we erred in our decision to overrule Appellant's original point one. Appellant's complaint in the original point one is that the trial court erred "by adjudging Defendant guilty and immediately sentencing him to ten years confinement without giving Defendant any opportunity to be heard on the issue of punishment and sentence." At the end of the State's evidence, counsel for Appellant made a motion asking the trial court to render judgment denying revocation. The court denied this motion, and Appellant's counsel stated: "Defendant rests, Judge." Nowhere in the record is there any indication that the trial judge would not have given Appellant the opportunity to be heard if Appellant had opted to do so. Before Appellant rested he could have asked permission to call his probation officer. The decision to reopen a case is left to the sound discretion of the trial judge, therefore, regardless of Appellant's failure to object, we find there was no abuse of discretion. See Boatright v. State, 472 S.W.2d 765 (Tex. Crim. App. 1984); see also Duhart v. State, 668 S.W.2d 384, 387 (Tex. Crim. App. 1984)(holding that a separate hearing on punishment was not mandatory). Points one, two, three and six of the motion for rehearing are without merit.

Points four and seven of the motion for rehearing are assertions that we erred in deciding Appellant's original point two. Although Appellant originally used the former article 42.12, section 4 of the Code of Criminal Procedure as authority for point two in his brief, in his motion for rehearing he also uses the current article 42.12, section 9 of the Code of Criminal Procedure as authority for this claim. Section 9 is now merely the replacement for section 4 and both sections are essentially the same. Compare TEX. CODE CRIM. PROC. ANN. arts. 42.12 4, 9 (Vernon Supps. 1989 and 1990). However, because the hearing was held in 1989 the applicable law is section 4, and Texas courts' interpretation of this section apply as authority. Appellant asserts that the judge at the hearing on the motion to revoke Appellant's probation should have:

directed a probation officer to report to the Court in writing on the circumstances of the offense of which the Defendant was charged, the criminal and social history of the Defendant, and any other information relating to the Defendant or the offense alleged against him, by failing to make any finding that there was sufficient information in the record to permit a meaningful exercise of sentencing discretion, by failing to explain any such finding on the record and failing to ever inspect, read or have presented to him any such report which had ever been prepared prior to said hearing when there was no such report contained in the records or filed in the cause . . . .

While Appellant is correct that former section 4 and current section 9 seem to require judges to take the actions Appellant describes, these actions were, at least at the time of the hearing on the motion to revoke Appellant's probation, actually discretionary. See State ex. rel. Turner v. McDonald, 676 S.W.2d 375 (Tex. Crim. App. 1984); Trevino v. State, 761 S.W.2d 562, 567 (Tex. App.--San Antonio 1988 pet. ref'd). However, irrespective of that fact, these sections appear to apply to the hearing on whether or not a defendant should be placed on probation, and not to the hearing on a motion to revoke probation. See Turner, 676 S.W.2d at 378. At the time Appellant pled guilty the trial judge stated that he ordered a presentence investigation, that he had it back, and that he was going to place Appellant on deferred adjudication for five years. Apparently, the presentence investigation report was the impetus for Appellant's being placed on deferred adjudication probation in the first place. Now, Appellant insists that at the revocation hearing he should have been afforded the benefits that he received at the original hearing. We find no authority to support this contention. When Appellant pled guilty and was placed on deferred adjudication he was subject to being assessed the maximum allowed punishment for the offense if his probation was revoked and his case was adjudicated. See Reed v. State, 644 S.W.2d 479, 483-84 (Tex. Crim. App. 1983). After the State rested at the revocation hearing, Appellant could have proceeded to offer evidence in mitigation of his punishment, but as noted supra, he did not do so. Points four and seven of the motion for rehearing are without merit.

Points five and nine of Appellant's motion for rehearing appear to be identical claims. Appellant maintains in these points that we erred in overruling his original point four--that Appellant should have been allowed to withdraw his plea pursuant to article 26.13(a)(2) of the Code of Criminal Procedure after the judge at the revocation hearing sentenced him. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(2)(Vernon 1989). Again, Appellant treats the revocation hearing the same as the original proceeding in which the court placed Appellant on probation. The record reveals only one plea recommendation, and that recommendation was five years with Appellant to be placed on deferred adjudication. The court accepted the "plea bargain," therefore, the court did not reject the agreement and Appellant could not withdraw. See id. Merely because the court later found that Appellant violated a condition of his probation and revoked it does not mean that Appellant can treat the revocation and subsequent sentencing as a rejection of the original plea agreement. Points five and nine of the motion for rehearing are without merit.

Appellant states in point eight of the motion for rehearing that our decision to overrule his original point three is in error. He claims that pursuant to article 42.12, section 4(d)(e) of the Code of Criminal Procedure he should have been given access to the presentence investigation report. See TEX. CODE CRIM. PROC. ANN. art. 42.12 4(d)(e)(Vernon Supp. 1989). This point is without merit based upon the reasons stated in our original opinion and for the reasons stated in the discussion of points four and seven supra.

The final point for consideration on Appellant's motion for rehearing is point ten which asserts we erred in deciding Appellant's original point five. Appellant alleges that his adjudication of guilt rendered upon the finding of the trial judge that "Defendant had violated a condition of probation by committing the offense of theft was and is void for the reason that there was no evidence to support the finding." Although, as we discussed in our original opinion, there was sufficient evidence to support the court's finding, no appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge. See TEX. CODE CRIM. PROC. ANN. art. 42.12 3d(b), 5(b) (Vernon Supps. 1989 and 1990); Daniels v. State, 615 S.W.2d 771 (Tex. Crim. App. [Panel Op.] 1981). Therefore, Appellant's last point is actually not even reviewable by this court. Point ten of the motion for rehearing is without merit, and the motion for rehearing is denied.

TERRY R. MEANS

DO NOT PUBLISHJustice