Diaz, Gregorio Gordon v. State

Opinion issued August 15, 2002 In The Court of Appeals For The First District of Texas NO. 01-01-00908-CR GREGORIO GORDON DIAZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 56th District Court Galveston County, Texas Trial Court Cause No. 98CR1308 O P I N I O N Appellant, Gregorio Gordon Diaz, pleaded guilty to sexual assault of a child, and the trial court, in accordance with a plea agreement with the State, assessed punishment at nine years deferred adjudication probation. Five months later, the State moved to revoke appellant's deferred adjudication probation. Appellant pleaded "not true" to the allegations of the motion. Following a hearing on the State's motion to revoke, the trial court found that appellant had violated the terms of his deferred adjudication probation, adjudicated him guilty, and assessed his punishment at five years confinement. In his sole issue on appeal, appellant contends the trial court erred at the hearing on the motion to adjudicate by refusing to allow him to present a closing argument before adjudicating him guilty. The State argues that appellant waived his complaint about the trial court's failure to entertain his closing argument in mitigation of punishment. We agree. At the conclusion of the testimony at hearing on the motion to revoke community supervision, the following exchange took place: [Defense Counsel]: Nothing further. [Prosecutor]: Nothing further. [The Court]: Thank you. I find allegation 4, 31, 36 true, and I am revoking Mr. Diaz's probation and adjudication his guilt for indecency with a child and setting his sentence at five years in the penitentiary with credit for time served: We can do the judgment sometime next week. The Court of Criminal Appeals has held that the failure to object, either at trial or by motion for new trial, to the trial court's denial of a separate punishment hearing after an adjudication of guilt, precluded appellate review of the issue. See Vidaurri v. State, 880 S.W.2d 880, 886 (Tex. Crim. App. 2001). Similarly, we conclude that by not objecting to the lack of an opportunity to present a closing argument, appellant has waived the issue on appeal. See Foster v. State, No. 01-01-00637-CR, slip op. at 4 (Tex. App.--Houston [1st Dist.] June 6, 2002, n.p.h.) (holding failure to object to lack of opportunity to present closing argument at adjudication hearing waived issue on appeal). We overrule appellant's sole issue. We affirm the judgment. Michael H. Schneider Chief Justice Panel consists of Chief Justices Schneider and Justices Nuchia and Radack. Do not publish. Tex. R. App. P. 47.