Gilder, Rufus Lee v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmedand Opinion filed October 4, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00697-CR

____________

RUFUS L. GILDER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 868,893

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

The trial court found appellant Rufus Gilder guilty of violating his community supervision and sentenced him to confinement in a state jail for one year. On appeal, appellant claims that the trial court erred in immediately sentencing him after adjudicating guilt, thereby depriving him of a punishment hearing. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.4. We affirm. In the fall of 2001, appellant pled guilty to the felony of forgery of a commercial instrument. The trial court deferred adjudication of appellant=s guilt and placed him on community supervision for five years. One condition of appellant=s community supervision was that he refrain from disorderly conduct, abusive language, or disturbing the peace at any Harris County facility. On June 29, 2004, the State filed a motion to adjudicate appellant=s guilt, alleging that he violated various terms and conditions of his community supervision. After an oral hearing, at which both parties presented evidence and at which appellant testified, the trial court found the allegations to be true. After the trial court adjudicated guilt, the following exchange took place:

COURT: Do you have anything to say before sentence it [sic] pronounced?

APPELLANT: I=d like to apologize to the ladies that I harmed and C

COURT: All right.

APPELLANT: May B I think, you know, I got my family. You know, they B about this whole deal, just want to apologize.

COURT: All right. . . . But do you have anything further to say?

APPELLANT: No.

The court then sentenced appellant to one year=s imprisonment.

In his sole issue, appellant complains that the trial judge erred by immediately sentencing him after adjudicating guilt, thereby depriving him of a punishment hearing. Appellant relies heavily on the decision in Issa v. State, in which the Court of Criminal Appeals held that Athe defendant is entitled to a punishment hearing after the adjudication of guilt, and the trial judge must allow the accused the opportunity to present evidence.@ 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (emphasis in original). We find Issa readily distinguishable. In Issa, the defendant was given no opportunity to present evidence or to object to the trial court=s actions because the trial court pronounced the defendant=s guilt and his sentence in a single proclamation. Here, this was not the case. In Hardeman v. State, under facts similar to those in the present case, the Court of Criminal Appeals stated that AIssa does not stand for the absolute right to a separate punishment hearing@; the court went on to hold that the defendant Ahad the opportunity to present evidence [on punishment] during the proceedings, and that is all that is required.@ 1 S.W.3d 689, 690B91 (Tex. Crim. App. 1999); see also Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999) (AIt is immaterial that the opportunity to present evidence came before the actual words of adjudication.@).

In light of the Court of Criminal Appeals=s holdings in Hardeman and Pearson, we overrule appellant=s single issue. We affirm the judgment of the trial court.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed October 4, 2005.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

Do Not Publish C Tex. R. App. P. 47.2(b).