Opinion
No. 05-06-01245-CR.
Opinion Filed March 23, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-55039-NU. AFFIRM as MODIFIED.
Before Justices O'NEILL, LANG-MIERS, and MAZZANT Opinion By Justice O'NEILL
OPINION
Dammascus Zurishaddai France waived a jury and pleaded guilty to possession of cocaine in an amount of less than one gram. See Tex. Health Safety Code Ann. § 481.115(a), (b) (Vernon 2003). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on three years' community supervision, and assessed a $1500 fine. The State later moved to proceed with adjudication of guilt, alleging appellant violated the terms of his community supervision. At a hearing on the motion, appellant pleaded not true to the allegations. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at confinement for eighteen months in a state jail facility. In a single issue, appellant, citing Issa v. State, 826 S.W.2d 159 (Tex.Crim.App. 1992), contends he was entitled to a separate punishment hearing, and the trial court should have allowed him the opportunity to present evidence. The State responds that appellant waived any error because he did not complain at trial or in a motion for new trial. We agree with the State. Appellant did not object to the lack of a separate punishment hearing upon adjudication of guilt or in a motion for new trial. Thus, appellant has failed to preserve his complaint. See Tex. R. App. P. 33.1; Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Moreover, contrary to appellant's argument, Issa does not stand for the absolute right to a separate punishment hearing. Instead, it requires a defendant have an opportunity to present evidence in mitigation of punishment. See Pearson v. State, 994 S.W.2d 176, 178 (Tex.Crim.App. 1999). The record shows appellant had the opportunity to present evidence during the proceedings, and testified about the violations of the terms of his community supervision. See Castaneda, 135 S.W.3d at 723. It is immaterial that the presentation of this evidence occurred before the actual words of adjudication. See Hardeman v. State, 1 S.W.3d 689, 691 (Tex.Crim.App. 1999). We resolve appellant's issue against him. We note the trial judge orally pronounced the sentence as "18 months in the state jail." However, the trial court's judgment recites the place of confinement as the "Institutional Division of the Texas Department of Criminal Justice." Thus, the trial court's judgment is incorrect. On our own motion, we modify the trial court's judgment to show the place of confinement is the Texas Department of Criminal Justice-State Jail Division. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.