Opinion
No. 05-02-01242-CR
Opinion Filed August 19, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-70321-PN. AFFIRM
Before Justices MORRIS, WRIGHT, and MOSELEY.
OPINION
Emanual Deleon Fields waived a jury trial and entered a negotiated guilty plea to aggravated assault with a deadly weapon. See Tex. Pen. Code Ann. § 22.02 (Vernon 2003). Pursuant to a plea bargain agreement, the trial court deferred adjudicating guilt, placed appellant on eight years' community supervision, and assessed a $500 fine. Subsequently, the State moved to proceed with adjudication of guilt, alleging appellant violated the terms of his probation by committing three new offenses. At a hearing on the motion, appellant pleaded not true to the allegations. The trial court found the allegations true, adjudicated appellant guilty, and sentenced him to twenty years' confinement. In a single point of error, 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 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; 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.