Gross v. State

Full title: DOMINIQUE YVONNE GROSS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 21, 2003

No. 05-02-00165-CR (Tex. App. Aug. 21, 2003)

Opinion

No. 05-02-00165-CR

Opinion Filed August 21, 2003. DO NOT PUBLISH. Tex.R.App.P. 47

On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F92-34313-PI. AFFIRM

Before Justices BRIDGES, O'NEILL, FITZGERALD.

OPINION

Opinion By JUSTICE O'NEILL.

Dominique Yvonne Gross waived a jury trial and entered a negotiated guilty plea to aggravated robbery with a deadly weapon. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). Pursuant to the plea bargain agreement, the trial court deferred adjudicating guilt, placed appellant on ten years community supervision, and assessed a $750 fine. Nine years later, after having amended the conditions of appellant's community supervision on two occasions, the trial court granted the State's motion to proceed with adjudication, adjudicated appellant guilty, and sentenced her to five years' confinement. In a single point of error, appellant, citing Issa v. State, 826 S.W.2d 159 (Tex.Crim.App. 1992), contends she was entitled to a separate punishment hearing, and the trial court should have allowed her the opportunity to present evidence. The State responds appellant waived any error because she 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 her complaint. See Tex.R.App.P. 33.1; Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App. 2001). 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. It is immaterial that the evidence was presented before the trial court actually adjudicated guilt. See id. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment.