Laurence David Johnson v. The State of Texas--Appeal from 276th District Court of Marion County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00248-CR

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LAURENCE DAVID JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 276th Judicial District Court

Marion County, Texas

Trial Court No. F12961

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Laurence David Johnson appeals his thirty-year sentence for possessing, with intent to deliver, more than four grams, but less than 200 grams, of cocaine. See Tex. Health & Safety Code Ann. 481.113(a),(d) (Vernon 2003). Pursuant to a negotiated plea agreement, Johnson pled guilty and was placed on deferred adjudication community supervision. // After violating terms of his community supervision, Johnson was adjudicated guilty and sentenced. Johnson contends the trial court erred by failing to hold a separate hearing on punishment following the court's decision to adjudicate his guilt. We affirm the trial court's judgment because Johnson failed to preserve this issue for appellate review.

In his brief on appeal, Johnson correctly states that a separate punishment hearing is required after the trial court decides to adjudicate a defendant's guilt. See Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992). If the trial court does not conduct a separate hearing, it errs. Id. Error, however, is preserved only if the defendant brings the error to the trial court's attention. Tex. R. App. P. 33.1(a)(1); Issa, 826 S.W.2d at 161. If the defendant does not object at trial, but files a motion for new trial in which he or she then objects to the trial court's error, the error is preserved for appellate review. Issa, 826 S.W.2d at 161.

In this case, Johnson did not object or otherwise raise this issue during the hearing on the State's motion to adjudicate guilt or in his motion for new trial. Accordingly, nothing has been preserved for appellate review. See Tex. R. App. P. 33.1.

We affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: August 11, 2004

Date Decided: August 12, 2004

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