From Casetext: Smarter Legal Research

Johnson v. State

Court of Appeals of Texas, Sixth District, Texarkana
Aug 12, 2004
No. 06-03-00248-CR (Tex. App. Aug. 12, 2004)

Opinion

No. 06-03-00248-CR

Submitted: August 11, 2004.

Decided: August 12, 2004. DO NOT PUBLISH.

On Appeal from the 276th Judicial District Court, Marion County, Texas, Trial Court No. F12961.

Before MORRISS, C.J., ROSS and CARTER, JJ.


MEMORANDUM OPINION


Laurence David Johnson appeals his thirty-year sentence for possessing, with intent to deliver, more than four grams, but less than 200 grams, of cocaine. See Tex. Health Safety Code Ann. § 481.113(a),(d) (Vernon 2003). Pursuant to a negotiated plea agreement, Johnson pled guilty and was placed on deferred adjudication community supervision. After violating terms of his community supervision, Johnson was adjudicated guilty and sentenced. Johnson contends the trial court erred by failing to hold a separate hearing on punishment following the court's decision to adjudicate his guilt. We affirm the trial court's judgment because Johnson failed to preserve this issue for appellate review. In his brief on appeal, Johnson correctly states that a separate punishment hearing is required after the trial court decides to adjudicate a defendant's guilt. See Issa v. State, 826 S.W.2d 159 (Tex.Crim.App. 1992). If the trial court does not conduct a separate hearing, it errs. Id. Error, however, is preserved only if the defendant brings the error to the trial court's attention. Tex.R.App.P. 33.1(a)(1); Issa, 826 S.W.2d at 161. If the defendant does not object at trial, but files a motion for new trial in which he or she then objects to the trial court's error, the error is preserved for appellate review. Issa, 826 S.W.2d at 161. In this case, Johnson did not object or otherwise raise this issue during the hearing on the State's motion to adjudicate guilt or in his motion for new trial. Accordingly, nothing has been preserved for appellate review. See Tex.R.App.P. 33.1. We affirm the trial court's judgment.

In 2002, Johnson had pled "guilty" to the indictment. Pursuant to a negotiated plea agreement, the trial court then found the evidence substantiated Johnson's guilt, but deferred a finding of guilt and placed Johnson on community supervision for a period of ten years. The following year, the State filed a motion to adjudicate guilt. The State's motion alleged Johnson had committed two new criminal offenses and committed four "technical" violations of his community supervision. The trial court heard evidence and argument on the State's motion at a September 30, 2003, hearing, at which Johnson admitted committing the new offense of resisting arrest and committing the four technical violations. Johnson, however, denied he had hindered a secured creditor by secreting an automobile. During closing arguments on the State's motion, Johnson asked the trial court to consider placing him in jail for up to six months as a condition of community supervision in lieu of adjudicating his guilt and sending him to prison. Ultimately, the trial court adjudicated Johnson's guilt and, without conducting a separate punishment hearing, sentenced him to thirty years' imprisonment.


Summaries of

Johnson v. State

Court of Appeals of Texas, Sixth District, Texarkana
Aug 12, 2004
No. 06-03-00248-CR (Tex. App. Aug. 12, 2004)
Case details for

Johnson v. State

Case Details

Full title:LAURENCE DAVID JOHNSON, Appellant, v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Sixth District, Texarkana

Date published: Aug 12, 2004

Citations

No. 06-03-00248-CR (Tex. App. Aug. 12, 2004)