John Dale Harvey v. State

Opinion

NO. 07-02-0493-CR NO. 07-02-0495-CR NO. 07-02-0496-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 23, 2003

______________________________

JOHN DALE HARVEY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE A47TH DISTRICT COURT OF POTTER COUNTY;

NO. 40,280-A; 37,611-A; 41,935-A HONORABLE JOHN T. FORBIS, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Pursuant to plea agreements, appellant John Dale Harvey was granted deferred

adjudication for aggravated assault in cause number 40,280-A and for assault against a

family member in cause number 41,935-A. His punishment was assessed at ten years community supervision in each cause. In cause number 37,611-A, appellant had been

convicted of possession of a controlled substance and placed on community supervision

for ten years. After hearing evidence of violations of the conditions thereof, his community

supervision was revoked and punishment was assessed at ten years confinement. By two

points of error, appellant contends (1) the trial court erred in granting the State’s oral

request to bifurcate the hearing and conduct a punishment hearing following the

revocation/adjudication portion of the proceeding without notice, and (2) he was denied

due process by not being allowed a proper punishment hearing. Based upon the rationale

expressed herein, we affirm.

Only the facts necessary to disposition of appellant’s points of error will be

discussed. During the hearing on the State’s motions to proceed with adjudications of guilt

and to revoke community supervision the prosecutor orally requested that the trial court

proceed with the punishment phase immediately following presentation of the evidence on

its motions. Defense counsel objected based on lack of notice and also alleged due

process violations. The objection was overruled and following the trial court’s ruling on the

adjudications and revocation, the punishment phase commenced. Following his

convictions, appellant filed motions for new trial in all three causes alleging his due

process rights were violated because he was not prepared for the punishment phase and

did not receive proper notice. By the motions, appellant did not allege what evidence, if

any, he would have presented during punishment had he known the trial court would have

2 immediately proceeded to the punishment phase following its ruling adjudicating him guilty

in two of the causes and revoking his community supervision in the third.

By his two points, appellant argues the prosecutor’s oral request to “bifurcate” the

proceeding, which she conceded is something “we normally don’t do” violated his due

process by denying him a proper punishment hearing. We disagree. Article 42.12, section

5(b) of the Texas Code of Criminal Procedure provides “[a]fter an adjudication of guilt, all

proceedings, including assessment of punishment . . . continue as if the adjudication of

guilt had not been deferred.” (Emphasis added). Article 42.12, section 23(a) provides “[i]f

community supervision is revoked after a hearing . . . the judge may proceed to dispose

of the case as if there had been no community supervision . . . .” Appellant does not

reference any authority and we have found none requiring notice to a defendant when the

punishment phase is to commence following the trial court’s ruling.1

A defendant is entitled to a punishment hearing following the adjudication of guilt

or revocation of community supervision and must be allowed an opportunity to present

evidence. Issa v. State 826 S.W.2d 159, 161 (Tex.Cr.App. 1992); see generally McNew

v. State, 608 S.W.2d 166, 174 (Tex.Cr.App. [Panel Op.] 1978) (holding that only one

1 Although article 37.07(g) of the Texas Code of Criminal Procedure requires notice of intent to introduce extraneous offenses upon a defendant’s timely request, the record herein reflects that the State did not intend to introduce any evidence of extraneous offenses and that no request was made by appellant.

3 hearing is necessary to afford a defendant due process of law and that once the trial court

enters an adjudication of guilt, it can immediately proceed with assessment of punishment).

In the instant case, after the State’s punishment evidence was presented, defense

counsel announced he had no questions, and following the State’s announcement that it

was resting, defense counsel also rested. He did not request a continuance nor allege in

the motions for new trial what mitigating punishment evidence, if any, he would have

presented. Issa left no doubt that after the adjudication or revocation portion of a hearing,

“the court must then conduct a second phase to determine punishment.” See Lopez v.

State, 96 S.W.3d 406, 411 (Tex.App.–Austin 2002, pet. ref’d), citing Issa, 826 S.W.2d at

161. We conclude the trial court did not err in proceeding to the punishment phase of the

hearing following its ruling to adjudicate appellant guilty in two causes and revoke his

community supervision in the third, and that appellant’s due process rights were not

violated. Points of error one and two are overruled.

Accordingly, the judgments of the trial court are affirmed.

Don H. Reavis Justice

Do not publish.

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