Booth, Tyrone v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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TYRONE BOOTH, ) No. 08-01-00227-CR

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Appellant, ) Appeal from

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v. ) 243rd District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 970D04382)

O P I N I O N

Tyrone Booth appeals his conviction for the offense of burglary of a habitation. Finding Appellant had violated the terms and conditions of deferred adjudication community supervision, the trial court adjudicated Appellant=s guilt and assessed punishment at imprisonment for a term of eight years. We affirm.

FACTUAL SUMMARY

On August 15, 1997, Appellant waived his right to a jury trial and entered a negotiated plea of guilty to burglary of a habitation. The trial court found that the evidence substantiated Appellant=s guilt but deferred making an adjudication of guilt. In accordance with the plea bargain, the court placed Appellant on deferred adjudication community supervision for three years. The court later signed two orders extending the term of community supervision.

In March 2001, the State filed a motion to adjudicate guilt. The trial court conducted a contested hearing on that motion, and at its conclusion, found that the State had proven Appellant had violated the terms and conditions of community supervision as alleged. After announcing its ruling, the court conducted what it referred to as a punishment hearing, and alternately, as a disposition hearing. Both the State and Appellant offered additional evidence pertinent to punishment. At the conclusion of the hearing, the court assessed Appellant=s punishment at imprisonment for a term of eight years.

FAILURE TO PROVIDE PUNISHMENT HEARING

In his sole issue on appeal, Appellant contends that the trial court erred in failing to provide him with a separate punishment hearing instead of immediately assessing punishment after adjudicating him guilty. A defendant on deferred adjudication community supervision must be provided with an opportunity to present evidence in mitigation of punishment if such an opportunity is not afforded during adjudication. Hardeman v. State, 1 S.W.3d 689, 691 (Tex.Crim.App. 1999); Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992). Immediately following its ruling on the State=s motion to adjudicate, the trial court engaged in the following discussion with counsel:

[The Court]: He=s on deferred. You=re entitled to a separate punishment hearing. And, Mr. Locke [the prosecutor], do you have any evidence -- any additional evidence as to the punishment hearing?

[The prosecutor]: Your Honor, we=d call Martin Medrano.

[The Court]: And I don=t mean to call it a punishment hearing; a disposition hearing.

The State proceeded to offer additional evidence pertinent to punishment through Appellant=s community supervision officer, Mr. Medrano. The State then rested. Appellant=s wife testified on Appellant=s behalf and offered her opinion that he would not benefit from imprisonment but instead needed treatment for his problems with drugs and alcohol. Following the argument of counsel regarding an appropriate punishment for Appellant, the trial court assessed sentence.

As is apparent from this recitation of what occurred in the trial court, Appellant=s assertion that he was denied a punishment hearing and an opportunity to present evidence in mitigation in punishment in wholly unsupported by the record. Consequently, his sole issue for review is overruled and the judgment of the trial court is affirmed.

August 1, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

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