Terry Wayne Hardeman pleaded guilty to delivering less than 28 grams of cocaine and stipulated that two enhancement paragraphs were true. The trial court deferred adjudication and placed him on probation. The State later moved to adjudicate, alleging that Hardeman used cocaine and failed to pay fines while on probation. The trial court adjudicated guilt on Hardeman's original cocaine charge and sentenced him to life in prison. Hardeman appealed, and the Court of Appeals affirmed the trial court's judgment.

SEPARATE PUNISHMENT HEARING

Hardeman first argues that the trial court erred by not conducting a separate punishment hearing after the adjudication of guilt and before sentencing. He complains that the Court of Appeals erroneously concluded that he failed to preserve error on this claim. We agree with the Court of Appeals.

Generally, to preserve error, the complaining party must make a timely objection. Hardeman contends that, pursuant to Issa v. State, he preserved error by filing a timely motion for new trial. In Issa, when the trial judge denied the appellant a separate punishment hearing, we permitted the preservation of error in this manner only because the appellant did not have the opportunity to object. The trial judge found the appellant guilty and immediately sentenced him.

826 S.W.2d 159 (Tex.Crim.App. 1992).

Id. at 161; see also Pearson v. State, No. 1007-98, slip op. at 6 (Tex.Crim.App. June 9, 1999).

Ibid.

Hardeman does not allege such a lack of opportunity to object. In fact, the record indicates that he was given the chance to do so. After adjudicating guilt, the trial judge asked Hardeman whether he had anything to say before he pronounced sentence. There was no response. Hardeman was given an opportunity to object and to present evidence, but he did neither. As a result, he failed to preserve error. This ground for review is overruled.

Hardeman also claims that his counsel was ineffective for failing to object when the court imposed sentence without a separate punishment hearing. Contrary to Hardeman's argument, Issa does not stand for the absolute right to a separate punishment hearing. Instead, it requires the defendant to have the opportunity to present evidence in mitigation of guilt if not afforded during adjudication.

Pearson, slip op. at 4-5.

The record reflects that Hardeman was given such an opportunity during adjudication, and he took advantage of it. He testified regarding his work at a halfway house, his level of responsibility there, his achievement during training, his skills, and his sense of duty. These matters have nothing to do with whether he used cocaine or paid his fines during probation.

As we explained in Pearson, it is immaterial that the presentation of this evidence occurred before the actual words of adjudication. Hardeman had the opportunity to present evidence during the proceedings, and that is all that is required. Therefore, Hardeman cannot show that counsel erred by failing to object, nor can he show he was harmed by counsel's failure to object.

Ibid.

ENHANCEMENT PARAGRAPHS

Hardeman next argues that the Court of Appeals erred in failing to address the merits of his claims regarding the enhancement paragraphs. He argued below that there was insufficient evidence to support the two habitual offender enhancement paragraphs and that the trial court erred in failing to arraign him on the enhancement paragraphs. The Court of Appeals declined to review these complaints, holding that it did not have the authority to do so because the claims dealt with the trial court's decision to adjudicate guilt. We agree with Hardeman that these claims do not involve the trial court's decision to adjudicate guilt. Nevertheless, Hardeman waived these complaints by not raising them in an appeal after the trial court imposed deferred adjudication. As a result, the Court of Appeals was correct in refusing to address the claims on their merits, albeit for different reasons.

Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon 1999).

Manuel v. State, 994 S.W.2d 658, slip op. at 6 (Tex.Crim.App. delivered June 2, 1999).

CONCLUSION

We affirm the decision of the Court of Appeals.

Summaries of

Hardeman v. State

Court of Criminal Appeals of Texas

Sep 15, 1999

1 S.W.3d 689 (Tex. Crim. App. 1999)

holding that the right to a separate punishment hearing after adjudication of guilt is forfeitable

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holding that defendant does not have absolute right to separate punishment hearing but must have opportunity to present mitigating evidence if that right was not afforded during adjudication

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holding that appellant must have opportunity to present evidence of mitigation, but it is "immaterial that the presentation of the evidence [of mitigation] occurred before the actual words of adjudication."

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holding that Issa requires only that the defendant have the opportunity to present evidence in mitigation of punishment if not afforded same during adjudication

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holding appellant failed to preserve error where given an opportunity to object after guilt was adjudicated and before judge pronounced the sentence

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holding that Issa requires only that the defendant have the opportunity to present evidence in mitigation of punishment if not afforded same during adjudication

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holding that defendant does not have absolute right to separate punishment hearing but must have opportunity to present mitigating evidence if that right was not afforded during adjudication

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holding that defendant does not have absolute right to separate punishment hearing but must have opportunity to present mitigating evidence if that right was not afforded during adjudication

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holding that defendant does not have absolute right to a separate punishment hearing but must have opportunity to present mitigating evidence if that right was not afforded during the adjudication

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holding that Issa requires only that the defendant have the opportunity to present evidence in mitigation of punishment if not afforded same during adjudication

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holding that motion for a new trial can be used to raise point of error for first time only when party did not have opportunity to object at time objectionable action was taken

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finding that defendant has no absolute right to separate punishment hearing, but instead must have opportunity to present evidence in mitigation of punishment if such opportunity was not afforded during adjudication

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concluding that defendant failed to preserve error when he was given opportunity to object when sentence was pronounced but did not

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concluding that defendant waived appellate review where he was given opportunity to object and to present evidence when he was asked if he had anything to say, but did neither

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stating that Issa does not require a separate sentencing hearing after a defendant's guilt has been adjudicated if the defendant was provided an opportunity during the adjudication hearing to present mitigating evidence

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reasoning "[t]hese matters have nothing to do with whether he used cocaine or paid his fines during probation" and holding "Hardeman had the opportunity to present evidence during the proceedings, and that is all that is required."

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noting that if opportunity to object was afforded appellant and he failed to object, he cannot use later motion for new trial to preserve error

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addressing propriety of arraignment procedures

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In Hardeman, the trial court did not hold a separate punishment hearing, but rather assessed punishment immediately at the end of the hearing on adjudication of guilt.

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Hardeman v. State

Summary

Opinion

OPINION

SEPARATE PUNISHMENT HEARING

ENHANCEMENT PARAGRAPHS

CONCLUSION

Hardeman v. State

Hardeman v. State

Case Details

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Citing Cases

Hardeman v. State

Summary

Opinion

OPINION

SEPARATE PUNISHMENT HEARING

ENHANCEMENT PARAGRAPHS

CONCLUSION

Hardeman v. State

Hardeman v. State

Case Details

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Citing Cases

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