JUAN MARTINEZ, III v. THE STATE OF TEXAS--Appeal from 206th District Court of Hidalgo County

   NUMBER 13-04-469-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

JUAN MARTINEZ, III, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 206th District Court

of Hidalgo County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

This is an appeal from an adjudication of guilt following community supervision. Appellant, Juan Martinez, III, complains the trial court erred and abused its discretion (1) by granting the State=s motion to adjudicate guilt based on appellant=s violation of his conditions of community supervision, (2) in failing to conduct a separate punishment hearing, and (3) in not conducting a pre-sentence investigation report after adjudicating him guilty and before assessing his punishment. We affirm the judgment.

Factual Background

On May 17, 1994, appellant entered a plea of guilty to the charge of felony theft pursuant to a plea bargain with the State. Appellant then was granted deferred adjudication and placed on community supervision for a period of ten years. As part of his community supervision, appellant had to abide by certain conditions set out in the order. Those conditions included condition AH-2,@ which ordered appellant to pay restitution in the amount of $65,000, payable at a rate of $580 per month until fully paid, and condition AJ,@ which ordered appellant to pay a monthly supervision fee in the amount of $25 per month. Appellant failed to make full restitution payments and failed to pay the monthly fee as ordered. Thereafter, the State filed a motion to adjudicate guilt, alleging that appellant had violated these conditions of community supervision.

The trial court, at a hearing on the motion to adjudicate, heard evidence and found there was sufficient evidence to support the State=s motion that appellant violated the aforementioned conditions of community supervision. The trial court then adjudicated guilt. A pre-sentence investigation report (PSI) was not created or submitted, and there was not a distinct and separate punishment phase of the hearing. The trial court assessed punishment at ten years in the Institutional Division of the Texas Department of Criminal Justice, suspended the sentence, and placed appellant on community supervision for ten years subject to conditions, which included continuing restitution in the amount of $45,374, payable in monthly installments to the victim of the crime.

Motion for Adjudication of Guilt

We will first address appellant=s contention that the trial court erred in granting the State=s motion to adjudicate guilt. Before deciding the merits of this issue, however, we must first determine whether we have jurisdiction to hear appellant=s argument.

Inability to make court ordered payments is an affirmative defense to revocation of community supervision. Tex. Code Crim. Proc Ann. art. 42.12, ' 21(c) (Vernon Supp. 2004-05). When evidence that the probationer is unable to pay fees, court costs, fines, or restitution is not refuted by the State and the trial court revokes probation, it is an abuse of discretion. Quisenberry v. State, 88 S.W.3d 745, 749 (Tex. App.BWaco 2002, pet. ref'd).

However, the Code of Criminal Procedure prohibits direct appeal of the trial court's decision to adjudicate guilt. Tex. Code Crim. Proc Ann. art. 42.12, ' 5(b) (Vernon Supp. 2004-05). In Connolly v. State, the court of criminal appeals held that article 42.12, ' 5(b) prohibited review of a claim challenging the sufficiency of the evidence in the adjudication process. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). The rule is that Aa defendant placed on deferred adjudication has to appeal issues relating to the original deferred adjudication proceeding when deferred adjudication is first imposed.@ Daniels v. State, 30 S.W.3d 407, 408 (Tex. Crim. App. 2000). Even an alleged violation of the right to counsel at an adjudication hearing is not directly appealable because the issue pertains to the decision to adjudicate. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). Therefore, although we would have jurisdiction to address the sufficiency of the evidence issue if this were an appeal from the revocation of ordinary community supervision (which is imposed following adjudication), as in Quisenberry, we have no jurisdiction to address it in the context of an appeal from adjudication of guilt. Appellant=s first issue is overruled.

 Separate Punishment Hearing

Appellant contends that this case should be reversed and remanded for a new punishment hearing because the trial court reversibly erred by not holding a separate punishment hearing after adjudicating appellant=s guilt.[1] Appellant relies on Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (per curiam) for the proposition that the failure to hold a separate hearing on the issue of punishment is reversible error, and this error may be preserved in a motion for new trial. In Issa, the court of criminal appeals held that a criminal defendant Ais entitled to a punishment hearing after the adjudication of guilt, and the trial judge must allow the accused the opportunity to present evidence.@ Id.

However, we observe that the court of criminal appeals has taken the opportunity to distinguish Issa on several occasions. In Pearson v. State, 994 S.W.2d 176 (Tex. Crim. App. 1999) (en banc), the court of criminal appeals reaffirmed the Issa decision but noted that Pearson, on his own behalf, had an ample opportunity to testify, whereas Issa did not testify whatsoever. Pearson, 994 S.W.2d at 178. Further, the Pearson court remarked that the trial court spoke directly to Pearson himself. Id. The Pearson court declared:

Generally, a criminal defendant must make a timely objection to preserve a complaint for appellate review. Our disposition in Issa was based on the trial court=s denial of appellant=s requests to present evidence and then in one proclamation revoking appellant=s probation, adjudicating his guilt, and sentencing him. Appellant had no opportunity to object until after the trial court=s action was taken, and appellant was therefore improperly sentenced without being given an opportunity to present evidence prior to sentencing. In such rare circumstances, the error is preserved by raising it in a motion for new trial. However, appellant in the instant case not only had the opportunity to, but did present punishment evidence. Appellant testified in his own behalf in regard to punishment, urging the trial court to continue his probation and suggesting that his probation be extended Aa couple of years.@ It is immaterial that the opportunity to present evidence came before the actual words of adjudication. . . . Appellant had the opportunity to present evidence during the proceedings. That is all that is required.

Id. at 179 (citations omitted).

This case is in accord with Pearson. The record clearly shows that appellant had ample time to present evidence on his behalf. In fact, appellant testified on two different occasions. The trial court recessed after the first hearing in order to evaluate the case. Then, when the hearing reconvened three days later, the trial court allowed appellant to again testify about why he was unable to make restitution payments. Finally, the trial judge asked appellant after he testified, AIs there anything further?@ When both parties answered no, the trial judge pronounced sentenced and assessed punishment. Immediately thereafter, the trial judge asked, AAnything else, counsel, that hasn=t been addressed?@ The record reflects that the parties then discussed several issues regarding punishment, chiefly, the trial judge=s forgiving appellant=s debt of $2,700 in delinquent monthly fees. The court then asked again, if there was Aanything else@ and the parties said no. However, before the parties were excused, and while still on the record, appellant asked the trial judge to reconsider both the judgment and punishment.

The record is patently clear that appellant had ample time to object to the fact that there was not a distinct punishment phase of the proceedings. As such, appellant did not timely object and preserve error. See Issa, 826 S.W.2d at 161. Additionally, the record reflects that appellant had an ample opportunity to testify and did testify on his own behalf as to mitigating factors. In fact, appellant=s entire evidence was dedicated to mitigating circumstances, primarily, his affirmative defense on his involuntary inability to pay. Appellant had ample opportunity to present evidence during the proceedings as to mitigating circumstances and that is all that is required. Pearson, 994 S.W.2d at 179. Therefore, we overrule appellant=s second issue.

Presentence Report

Finally, appellant complains that the trial court erred in not having a PSI report conducted prior to imposing sentence. Essentially, appellant contends we must vacate his sentence and remand the cause to the trial court so a PSI report can be prepared. Appellant relies, in part, on Yarbrough v. State, 57 S.W.3d 611, 619-21 (Tex. App.BTexarkana 2001, pet. ref=d). However, in Yarbrough, the court of appeals applied a harmless error analysis and determined that the trial court=s failure to conduct a PSI report prior to sentencing did not Aaffect Yarbrough=s substantial rights.@ Id. at 619. The court added:

The purpose of a PSI report is to provide the trial court with information regarding >the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge.=

Id. (citations omitted).

Appellant suggests that, unlike the appellant in Yarbrough, his substantial rights were affected by the lack of a PSI. We are not persuaded. The trial court here was fully intimate with the amount of restitution necessary to adequately compensate the victim of the offense and the criminal and social history of the defendant. As noted above, appellant on two separate occasions testified fully about his history and offered mitigating circumstances as to why he was unable to pay restitution. The evidence proved the amount of restitution that appellant had previously paid and the amount that was still outstanding. Appellant has failed to demonstrate that by the lack of a PSI report at sentencing, his substantial rights were affected. Therefore, we overrule appellant on this issue.

Conclusion

Having overruled appellant=s issues, we affirm the decision of the trial court.

Rogelio Valdez

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 22nd day of August, 2005.

[1]Section 5(b) of article 42.12 states in pertinent part that AAfter an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred. . . .@ Tex. Code Crim. Proc. Ann. art. 42.12 ' 5(b) (Vernon 2004). Therefore, this means that Awhen a trial court finds that an accused has committed a violation as alleged by the State and adjudicates a previously deferred finding of guilt, the court must then conduct a second phase to determine punishment.@ Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (per curiam).