Opinion
No. 05-03-01594-CR
Opinion Filed November 8, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F99-20761-WJ. Affirm.
Before Justices WRIGHT, RICHTER, and MAZZANT.
OPINION
In this appeal from a judgment granting the State's motion to adjudicate guilt and revoke community supervision, Douglas Barton McGregor asks us to vacate his eight-year sentence for burglary of habitation and remand for a new punishment hearing. McGregor asserts in three issues that he is entitled to a new punishment hearing because (1) he did not have notice of the hearing, (2) the trial judge erred in denying his request for a continuance, and (3) the trial judge erred in failing to hold a separate sentencing hearing. We affirm. The record reflects the State's motion to adjudicate guilt and revoke community supervision was originally set for September 11, 2003, was rescheduled to September 19, 2003, and rescheduled again to September 29, 2003. McGregor's mother and his sponsor from a substance abuse program were present September 19 but not September 29. At the hearing, McGregor, the sole witness, admitted he had violated certain community supervision terms but also testified he did not understand "what [was] going on." The trial judge then explained the nature of the proceeding and asked McGregor's counsel whether he believed McGregor understood why he was in court. After counsel replied that he did and that he had reviewed the State's motion with McGregor and explained his options to him when he first met McGregor and also on the morning of the hearing, the judge proceeded with the hearing. McGregor's first two issues stem from his testimony that he did not understand "what [was] going on." Specifically, in his first issue, he asserts this testimony shows he did not have notice the hearing would be held that day and thus was denied due process and the opportunity to present witnesses in mitigation of punishment. In his second issue, he asserts this testimony was a request for a continuance, so that he could call witnesses in mitigation of punishment, which the judge erred in not granting. In reply, the State argues inter alia that the judge had no duty to interpret McGregor's testimony as an objection or motion because he was represented by counsel. We agree with the State. To preserve error for appeal, an appellant must make a specific and timely objection stating the legal basis for the ruling desired. See Tex.R.App.P. 33.1; Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex.Crim.App. 1996). When a defendant has retained or has been appointed counsel, a trial judge is entitled to look solely to the attorney and is not required to consider pro se objections or motions. Llano v. State, 16 S.W.3d 197, 198 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd); Busselman v. State, 713 S.W.2d 711, 714 (Tex.App.-Houston [1st Dist.] 1986, no pet.). In this case, McGregor's counsel specifically stated he believed McGregor understood why he was in court and did not object to the hearing, file a written motion for a continuance, or move for a new trial on the basis of lack of notice or inability to present witnesses. The trial judge was entitled to rely solely on counsel's representation and was not required to act on any pro se objection or motion McGregor may have made during his testimony. Llano, 16 S.W.3d at 198; see also Hazelwood v. State, 838 S.W.2d 647, 649-50 (Tex.App.-Corpus Christi 1992, no pet.) (no error where court failed to schedule a hearing on recusal motion filed pro se by represented defendant, failed to recuse himself, and failed to refer motion to administrative judge). Because McGregor had counsel and counsel did not object to the hearing or seek a continuance, McGregor's complaints are without merit. We resolve McGregor's first two issues against him. In his third issue, McGregor complains the judge erred in failing to conduct a separate punishment hearing. In arguing this issue, McGregor recognizes he was afforded the opportunity to present evidence on punishment despite a formal, separate hearing on punishment and that the court of criminal appeals in Pearson v. State, 994 S.W.2d 176 (Tex.Crim.App. 1999), held this practice was sufficient. Nonetheless, McGregor urges the Court of Criminal Appeals' position in Pearson is incorrect because it is inconsistent with an earlier Court of Criminal Appeals' opinion- Issa v. State, 826 S.W.2d 159 (Tex.Crim.App. 1992)-holding that a defendant is entitled to a punishment hearing after the adjudication of guilt. However, contrary to McGregor's argument, Issa does not stand for the absolute right to a separate punishment hearing. Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Crim.App. 1999). Rather, it holds that a defendant must have the opportunity to present evidence in mitigation of punishment if not afforded an opportunity during adjudication. Id. at 690-91. Because McGregor admittedly was afforded an opportunity to present punishment evidence, his argument is without merit. We resolve his third issue against him. We affirm the trial court's judgment.