Opinion
No. 11-07-00132-CR
Opinion filed August 7, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Court Cause No. 92106.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
This is an appeal from a judgment adjudicating guilt. Charles William Mingle originally entered a plea of guilty to the offense of injury to a child. Pursuant to the plea bargain agreement, the trial court deferred the adjudication of his guilt, placed him on community supervision for six years, and assessed a $500 fine. At the hearing on the State's motion to adjudicate, appellant entered a plea of true to one of the State's allegations. The State presented three witnesses, and appellant presented four as well as testifying in his own behalf. At the conclusion of the hearing, the trial court found that appellant had violated the terms and conditions of his community supervision, revoked the community supervision, adjudicated appellant's guilt, and imposed a sentence of confinement for fifteen years. We affirm. We note that the hearing on the State's motion to adjudicate was conducted prior to the June 15, 2007 effective date of the amendment to TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon Supp. 2007) allowing an appeal from the determination to adjudicate. Therefore, former TEX. CODE CRIM. PROC. art. 42.12, § 5(b) (1999) and its prohibition concerning appeals from the determination to proceed with the adjudication of guilt apply. Davis v. State, 195 S.W.3d 708, 709 (Tex.Crim.App. 2006); Hargesheimer v. State, 182 S.W.3d 906, 909 (Tex.Crim.App. 2006); Hogans v. State, 176 S.W.3d 829, 831 (Tex.Crim.App. 2005); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). Appellant's court-appointed counsel has filed a brief arguing four issues. Each issue addresses potential errors occurring after the adjudication of guilt. Under the law applicable to this case, these issues are properly before the court. In the first two issues, appellant argues that the trial court committed reversible error by failing to make a sufficient record of the admonishments given to appellant when he exercised his right to self-representation at the beginning of this appeal. We disagree. The record reflects that appellant was represented by retained counsel in the trial court. The sentence was imposed in open court on March 23, 2007. The record reflects that on April 16, 2007, the trial court admonished appellant concerning his right to self-representation and that appellant chose to proceed pro se. On June 11, 2007, upon appellant's request, the trial court appointed counsel to represent appellant in this appeal. The reporter's record was filed in this court on August 10, 2007. Appellant's brief — prepared by his court-appointed counsel — was filed in this court on April 17, 2008. The record before this court does not support appellant's contentions. The record reflects that the trial court admonished appellant. Assuming without deciding that the record was in some way not properly developed, as appellant claims, we note that any possible error would not be reversible. TEX. R. APP. P. 44.2. The record affirmatively reflects that appellant has had the active representation of counsel for the majority of the time that his appeal has been pending. Counsel has diligently researched, prepared, and filed a brief on his behalf. We determine beyond a reasonable doubt that appellant has not been harmed. The first two issues are overruled. In his next two issues, appellant contends that the trial court erred by proceeding to the punishment phase of the hearing immediately after adjudicating appellant's guilt. Appellant argues that he was not able to present mitigating evidence. Appellant correctly points out that defendants are entitled to a hearing on punishment separate from the hearing on the decision to adjudicate. However, this is a statutory right conveyed under Article 42.12, section 5(b) and can be waived absent a timely objection or complaint in a motion for new trial. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App. 2001); Issa v. State, 826 S.W.2d 159, 160-61 (Tex.Crim.App. 1992). Appellant did not object when the trial court adjudicated guilt and then proceeded into the punishment phase of the hearing. Likewise, appellant raised no complaint about the procedure in the trial court in his eight-page motion for new trial. Therefore, appellant has failed to preserve his complaint for appellate review. TEX. R. APP. P. 33.1. The third and fourth issues are overruled. The judgment of the trial court is affirmed.
Former Article 42.12, section 5(b) provided:
On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination (emphasis added).