Opinion
NO. 01-16-00803-CR
07-06-2017
REGINO IRACHETA, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Brazoria County, Texas
Trial Court Case No. 56031
MEMORANDUM OPINION
Appellant Regino Iracheta, Jr. pleaded guilty to the felony offense of sexual assault of a child. The trial court deferred adjudication and placed appellant on community supervision for ten years. The State subsequently filed a motion to adjudicate guilt. The trial court granted the motion, found appellant guilty of the charged offense, and assessed his punishment at ten years' confinement. In one point of error, appellant argues that the trial court erred by failing to conduct a separate punishment phase at the hearing on the State's motion to adjudicate guilt. We affirm.
See TEX. PENAL CODE ANN. § 22.011(a)(2)(C) (West Supp. 2014).
Background
On June 30, 2008, appellant pleaded guilty to the second-degree felony offense of sexual assault of a child. Pursuant to a plea agreement, the trial court deferred adjudication and placed appellant on community supervision for a period of ten years.
On April 27, 2016, the State filed a motion to adjudicate guilt alleging that appellant had violated the following conditions of his community supervision: (1) on April 8, 2016, he failed to abstain from the use of a controlled substance, namely, cocaine, in violation of term "B" of the conditions of supervision; (2) on February 19, 2016, he failed to abstain from the use of a controlled substance, namely cocaine, in violation of term "B" of the condition of supervision; and (3) he failed to follow recommendations for substance abuse counseling in violation of term "SS" of the conditions of supervision. On September 22, 2016, the trial court held a hearing on the motion to adjudicate. Appellant pleaded "true" to paragraphs one and two and "not true" to paragraph three.
The State called two witnesses, Joyce Morgan and Steven Duke, to testify. Morgan, appellant's chemical abuse counselor at Gulf Cost Recovery Center, testified that appellant had more than three unexcused absences from counseling sessions in May 2016, and that he was dismissed from the program because of excessive absences. She also testified that some of his absences were the result of his being late to a session rather than absent. Morgan testified that when he attended counseling appellant was "very engaged," tried hard to achieve sobriety, and was an active participant.
Participants are marked absent if they are more than fifteen minutes late to a counseling session.
Steven Duke, appellant's probation officer, testified that appellant was placed on probation in June 2008 and that he began supervising appellant in May 2010. Duke testified that appellant tested positive for cocaine on February 19, 2016 and April 8, 2016, and that appellant admitted to using cocaine on several occasions.
Duke testified that the State's motion to adjudicate appellant's guilt was the fifth such motion. The previous four motions, filed between February 2009 and August 2015, alleged that appellant violated the conditions of his community supervision by operating a motor vehicle without a valid license and using cocaine, in addition to several technical violations. Duke testified that appellant continued to use cocaine despite having been given the opportunity for treatment. On cross-examination, Duke testified that due to the nature of the offense with which appellant was charged, he was generally not allowed to attend in-patient programs and could only participate in out-patient programs. Duke testified that, in his opinion, appellant is probably addicted to cocaine. He also testified that appellant could not visit his daughter due to his sex offender status, and that he had trouble keeping a job, and that these factors triggered his use of cocaine. Duke testified that appellant told him that he was going to continue using cocaine and that appellant has not shown interest in attending twelve-step or peer-supported programs other than when he has faced a motion to revoke his community supervision.
The defense called three witnesses, Vera Villarreal, Patricia Ortiz, and appellant, to testify. Villarreal, a Gulf Coast Recovery Center counselor, testified that she met appellant in 2010 when he was assigned to her caseload and attended group counseling sessions. She testified that appellant attended sessions three times a week and that he actively participated in sessions. According to Villarreal, the fact that appellant could not see his daughter and the stress of not being able to keep a job were his main triggers. She testified that he appeared depressed and felt very discouraged about life.
Ortiz, appellant's ex-wife, testified that she and appellant have a thirteen year old daughter together with whom appellant had an amazing relationship before he was placed on community supervision. She testified that when appellant was placed on community supervision and was no longer able to see their daughter, he lost interest in life and became depressed. She testified that, outside of his probation, appellant spoke with his pastor and sought treatment with a church support group but was unable to join the group. Ortiz testified that appellant spoke to her about both of them attending chaperone training which would have permitted appellant to see his daughter but that it never happened.
Appellant testified that when he lost his job as a scaffold builder and was no longer able to see his daughter without supervision, it made him feel like less of a man and father. Appellant testified that he did not seek treatment for depression because he lacked the money for treatment and mental health professionals made him feel as if he was making excuses for himself and not making an effort to get better.
Appellant testified that these issues caused him to use cocaine and that he continued using drugs as an escape from the stress in his life. He testified that although he completed several treatment programs he was never able to put the knowledge he gained into practice. He testified that if the court placed him back on community supervision, he would complete the counseling program at Gulf Coast Recovery, start a support group at his church, and begin chaperone training so that he could have visitation with his daughter.
At the conclusion of the hearing, the trial court found that appellant had violated terms B and SS of his community supervision and adjudicated him guilty of sexual assault of a child. The trial court assessed appellant's punishment at ten years' confinement. This appeal followed.
Separate Punishment Hearing
In his sole point of error, appellant contends that the trial court erred in failing to conduct a separate punishment phase at the motion to adjudicate guilt hearing.
The Code of Criminal Procedure provides that, upon violation of a condition of community supervision, "[t]he 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. . . . After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred." TEX. CRIM. PROC. CODE ANN. art. 42.12 § 5(b) (West Supp. 2016). When a trial court adjudicates an offense for which the defendant received deferred adjudication, the court must afford the defendant an opportunity to present punishment evidence. See Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992).
Although the defendant is entitled to present punishment evidence at a hearing following an adjudication of his guilt, it is a statutory right which can be waived. See Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001) (en banc); Foster v. State, 80 S.W.3d 639, 641 (Tex. App.—Houston [1st Dist.] 2002, no pet.). To preserve error, a defendant is generally required to make a timely objection in the trial court. TEX. R. APP. P. 33.1. In order to successfully complain on appeal that he was denied the opportunity to present punishment evidence, a defendant must first make an objection in the trial court or, if there was no opportunity to object, timely file a motion for new trial. See Vidaurri, 49 S.W.3d at 886; Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999).
Here, it is undisputed that appellant did not object in the trial court during the hearing. After the trial court adjudicated appellant guilty of sexual assault of a child, the trial court assessed his punishment at ten years' imprisonment without holding a separate sentencing hearing. The court then asked appellant whether he had anything further to present to the court, and appellant answered no. Appellant was given an opportunity to object to the trial court's failure to conduct a separate punishment hearing but failed to make an objection. See Hardeman, 1 S.W.3d at 690-91 (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); Nguyen v. State, No. 13-02-645-CR, 2004 WL 1834404, at *1 (Tex. App.—Corpus Christi Aug. 12, 2004, no pet.) (mem. op., not designated for publication) (holding that defendant was given opportunity to object to trial court's error in failing to conduct separate punishment hearing but failed to do so where trial court adjudicated defendant guilty of indecency with child, sentenced him to three years' imprisonment without holding separate punishment hearing, and then asked defendant if he had anything to say to which defendant answered no). Further, although appellant filed a motion for new trial, his motion merely stated "[d]efendant requests a new trial as the judgment of the Court was contrary to the law and the evidence." See Lopez v. State, 96 S.W.3d 406, 414 (Tex. App.—Austin 2002, pet. ref'd) ("If the new trial motion is used, the motion should indicate with some specificity the evidence the defendant would have presented if the separate hearing had been accorded."). Because he did not object at the hearing or raise the issue in a motion for new trial indicating what evidence he would have presented, appellant has not preserved this issue for appeal. See Vidaurri, 49 S.W.3d at 886; Foster, 80 S.W.3d at 641.
However, even if appellant had preserved error, Issa does not stand for the absolute right to a separate punishment hearing. Hardeman, 1 S.W.3d at 690. Rather, it requires that the defendant have an opportunity to present evidence in mitigation of punishment. Id. at 690-91. Here, appellant was given such an opportunity and presented evidence during the adjudication hearing that (1) some of his absences were the result of being late to counseling sessions rather than absent; (2) when he attended counseling he was very engaged, tried hard to achieve sobriety, and was an active participant; (3) due to the nature of the offense with which he was charged, he was not eligible for some types of drug treatment programs; (4) his main problem was an addiction to cocaine; (5) he had a thirteen year old daughter with whom he had an amazing relationship before he was placed on community supervision; (6) he could not see his daughter due to his sex offender status and he had trouble keeping a job, and these factors triggered his use of cocaine; (7) he was depressed and felt very discouraged about life; (8) he spoke with his pastor and sought treatment with a church support group; (9) he did not seek treatment for depression because he lacked the money for treatment and mental health professionals made him feel as if he was making excuses for himself and not making an effort to get better; (10) he continued using drugs as an escape from the stress in his life; and (11) if the court placed him back on community supervision, he would complete the counseling program at Gulf Coast Recovery, start a support group at his church, and begin chaperone training so that he could have visitation with his daughter. And, in his closing argument, trial counsel argued,
[Appellant] has been given several opportunities to reform himself, to address his addiction; but the underlying issues that [appellant] had from the despair that he's gone through by losing his job, losing access to his daughter, that took an impact on him. And there was never any psychological or psychiatric counseling to address him self-medicating himself with an illegal substance. And, yes, at
some point in time [appellant] has to take responsibility upon himself to recognize that this is not the life that I want to live, this is not the example I want to set for my daughter. I could do better. And he's asking for this last opportunity.
Thus, the record demonstrates that the trial court allowed appellant to present testimony that can only be classified as mitigation evidence and make arguments to the trial court concerning his punishment. Accordingly, we conclude that appellant was given an opportunity to present punishment evidence at the hearing. See Hardeman, 1 S.W.3d at 690-91; Euler v. State, 158 S.W.3d 75, 78 (Tex. App.—Houston [14th Dist.] 2005), aff'd, 218 S.W.3d 88 (Tex. Crim. App. 2007) (holding that trial court did not err in not conducting separate punishment hearing where defendant was able to present mitigation evidence during adjudication hearing). We overrule appellant's sole point of error.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Chief Justice Radack and Justices Jennings and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).