Martinez, Eduardo Luis v. State

In The Court of Appeals For The First District of Texas ____________ NO. 01-02-00946-CR ____________ EDUARDO LUIS MARTINEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 177th District Court Harris County, Texas Trial Court Cause No. 797686 MEMORANDUM OPINION On March 16, 1999, appellant pled guilty to sexual assault of a child, and the trial court ordered him placed on community supervision for five years and assessed a $500 fine. On January 12, 2000, the State filed an amended motion to adjudicate guilt, alleging that appellant had violated provisions of his community supervision. On July 24, 2002, a hearing was held and the trial court found the allegations in the motion to adjudicate true and found appellant guilty of the original charge. The trial court assessed punishment at 15 years’ confinement. Appellant contends that the trial court erred by imposing a 15-year sentence without conducting a separate punishment hearing after the adjudication of guilt. We affirm. Background Among the conditions of his community supervision, appellant was ordered to (1) “commit no offense against the laws of this or any other State or of the United States,” and (2) “report immediately in person to the Community Supervision Officer for the 177th District Court on the 16th day of March, 1999 and continue to report to the Community Supervision Officer on the 16th of each month thereafter or as directed by the Community Supervision Officer for the remainder of the supervision term unless so ordered differently by the Court.” On June 10, 1999, the State filed a motion to adjudicate guilt, alleging that appellant failed to report to the Community Supervision Officer on March 22, 1999, as instructed, and had not reported since. On January 12, 2000, the motion was amended to allege that appellant entered the United States illegally and remained in the country illegally. Appellant entered a plea of “not true” to the allegation that he did not report to the Community Supervision Officer, and entered a plea of “true” to the allegation that he re-entered the United States illegally. Javier Fuentes, a Community Supervision Officer and custodian of the records of the Harris County Probation Department, testified that appellant reported to the court liaison officer at the time of his plea but never reported as required thereafter. Damon Samudio, a special agent with the United States Immigration and Naturalization Service, testified that appellant was deported on April 16, 1999, because he was in this country illegally and was convicted of aggravated sexual assault. Samudio testified that appellant had not obtained a visa or a work permit to enter or remain in the United States. The trial court found the allegations in the motion to adjudicate true, found appellant guilty of sexual assault of a child, and assessed punishment at 15 years’ confinement. Punishment Hearing In his sole point of error, appellant contends that the trial court erred by imposing a 15-year sentence without conducting a separate punishment hearing after the adjudication of guilt. Although appellant is entitled to a separate hearing following adjudication of guilt, he must preserve error for appeal. Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992); Foster v. State, 80 S.W.3d 639, 641 (Tex. App.—Houston [1st Dist.] 2002, no pet.). In Vidaurri v. State, the defendant admitted that he did not object to his inability to present punishment evidence at the time of sentencing, but claimed that he was sentenced immediately after being adjudicated guilty. 49 S.W.3d 880, 885 (Tex. Crim. App. 2001). He did not file a motion for new trial. Id. The Court of Criminal Appeals held that, if a trial court precludes a defendant from presenting punishment evidence, the defendant must object and make an offer of proof in a motion for new trial or he waives error. Id. at 886. Here, the trial court stated, in one proclamation, that it revoked appellant’s probation, found him guilty, and assessed punishment at 15 years’ confinement. Appellant admits that he did not object at the time of sentencing, but claims that he did not have an opportunity to object because the bailiff immediately led him away. However, in failing to file a motion for new trial, appellant did not preserve error for appellate review. We overrule appellant’s sole point of error. Conclusion We affirm the judgment of the trial court. Adele Hedges Justice Panel consists of Justices Hedges, Nuchia, and Higley. Do not publish. Tex. R. App. P. 47.2(b).