Opinion
No. 14-05-00017-CR
Memorandum Opinion filed April 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 263rd District Court, Harris County, Texas, Trial Court Cause No. 883,501. Affirmed.
Panel consists of Justices ANDERSON, EDELMAN, and FROST.
MEMORANDUM OPINION
Lucio Angel Loa appeals a conviction for aggravated assault with a deadly weapon on the grounds that the trial court erred by: (1) not holding a separate punishment hearing after adjudicating his guilt as required by articles 37.07 and 42.12 section (5)(b) of the Texas Code of Criminal Procedure; and (2) denying him the opportunity to present evidence in mitigation of punishment in violation of articles 37.07 and 42.12 section (5)(b) of the Texas Code of Criminal Procedure and the Due Process clauses of the United States and Texas Constitutions. We affirm. A defendant has a statutory right to a punishment hearing after the adjudication of guilt, and the trial court must allow the accused the opportunity to present evidence. Pearson v. State, 994 S.W.2d 176, 179 (Tex.Crim.App. 1999); Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992); see also Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App. 2001). However, to preserve for appellate review a complaint on the denial of a punishment hearing and opportunity to present evidence, a defendant must bring the issue to the attention of the trial court with a timely objection or motion for new trial. TEX. R. APP. P. 33.1(a); Vidaurri, 49 S.W.3d at 886. In this case, appellant failed to so object or file a motion for new trial. Although he contends that his notice of appeal was sufficient to preserve his complaint, he cites no authority supporting that contention. Therefore, appellant's two issues are overruled, and the judgment of the trial court is affirmed.
In 2001, appellant entered a guilty plea and was placed on deferred adjudication community supervision. In 2004, the State filed a motion to adjudicate, appellant entered a plea of true to the State's allegation, and appellant was convicted and sentenced by the trial court to five years imprisonment.
TEX. CODE CRIM. PROC. ANN. arts. 37.07, 42.12 § 5(b) (Vernon Pamphlet 2005).
However, appellant's brief fails to address his due process claim.