NO. 07-10-0315-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
OCTOBER 17, 2011
______________________________
MORTY V. WALKER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-418161; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
On January 15, 2009, pursuant to a plea agreement, Appellant, Morty V. Walker,
was granted ten years deferred adjudication for failure to comply with sex offender
registration requirements under article 62.102 of the Texas Code of Criminal
Procedure.1 On November 3, 2009, the State moved to proceed with an adjudication of
1 Tex. Code Crim. Proc. Ann. art. 62.102(a) (West 2006). guilt based on several violations by Appellant of the conditions of his community
supervision. At the hearing on the State's motion, Appellant entered a plea of not true
to the allegations contained in the motion. After hearing testimony, the trial court found
that Appellant had violated the conditions of community supervision, found the two
enhancement allegations contained in the indictment to be true, and sentenced him to
twenty-five years. By a sole point, Appellant alleges a violation of article 42.12, section
5(b) of the Texas Code of Criminal Procedure as a result of the trial court's failure to
conduct a separate punishment hearing. We modify the judgment and affirm as
modified.
Background Facts
The facts flowing from Appellant's guilty plea are minimal. Appellant was
originally convicted of sexual assault of a child under the age of fifteen in the early
1990s. After serving his sentence, in 2007, he was charged with failure to register as a
sex offender and in 2009, was granted deferred adjudication for that offense. At the
hearing on the State's motion to proceed later in 2009, Appellant testified in his own
behalf, admitted to violating the conditions of his community supervision, took
responsibility for his actions and asked the trial court for another chance. He also called
two witnesses in his defense who testified favorably about his work ethic and
intelligence.
After both sides closed, the trial court announced:
So your probation is revoked. The Court finds that you're guilty of the offense of failure to register as a sex offender as shown in the indictment,
2 enhancement allegations are both true pursuant to your plea of guilty back on January 15th of 2009.
After announcing the twenty-five year sentence, the trial court asked, "[i]s there any
reason sentence should not be pronounced today? Trial counsel responded, "[n]o legal
reason, Your Honor.”
Analysis
Relying on Pearson v. State, 994 S.W.2d 176 (Tex.Crim.App. 1999), and Issa v.
State, 826 S.W.2d 159 (Tex.Crim.App. 1992), Appellant argues he had a statutory right
to a separate punishment hearing following revocation of his deferred adjudication
community supervision. While we do agree that Appellant was entitled to a separate
punishment hearing, we do not agree with his position that the failure to provide that
hearing was reversible error.
Generally, when a defendant waives a jury trial and enters a guilty plea to a non-
capital offense, the proceedings become a unitary trial. Barfield v. State, 63 S.W.3d
446, 449-51 (Tex.Crim.App. 2001). In adjudication of guilt proceedings, the assessment
of punishment normally falls on the heels of a finding of guilt.2
The right to a separate punishment hearing is a statutory right that can be
waived. See Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App. 2001). To avoid
2 "After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, . . . continue as if the adjudication of guilt had not been deferred. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2010).
3 forfeiture of that right, a defendant must complain at trial or in a motion for new trial. Id.3
No motion for new trial was filed in the underlying proceeding following Appellant's
adjudication of guilt. Additionally, the record reflects that Appellant was given an
opportunity to object or present punishment evidence when counsel was asked by the
trial court if he knew of any reason why sentence should not be pronounced. See
Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Crim.App. 1999). Failure to bring the
complaint to the trial court's attention waived any error. See id. See also Tex. R. App.
P. 33.1(a).
Furthermore, assuming arguendo that Appellant preserved his complaint, as
explained in Pearson, it is immaterial that the presentation of mitigating evidence comes
before the actual words of adjudication. 994 S.W.2d at 179. In Pearson, the defendant
had the opportunity, albeit during the adjudication phase, to present evidence and testify
in his own behalf. "That is all that is required." Id.
In the underlying proceeding, Appellant had the opportunity to present mitigating
evidence through two witnesses and his own testimony. One of his witnesses testified
favorably about his intelligence and willingness to work hard and described him as
having a "good heart." A second witness testified that she hired Appellant to be a sign
walker for national retail liquidations. When liquidations slowed down, Appellant found
construction work and eventually became employed at Texas Roadhouse restaurant.
She pleaded with the court for Appellant to be given another chance. 3 Issa is distinguishable because the defendant had neither the opportunity to present punishment evidence nor the opportunity to object because the trial judge immediately left the bench after adjudicating guilt and sentencing the defendant in one proclamation. 826 S.W.2d at 161. The Court determined that under the circumstances, error was preserved by the timely filing of a motion for new trial complaining of the trial court's action. Id.
4 During his testimony, Appellant took responsibility for his poor choices and failure
to take advantage of opportunities. He also admitted that his struggle with crack
cocaine for twenty-five years led to a dysfunctional life. However, he felt he had
"redeemable qualities." He believed that if given another chance, he could comply with
the conditions of community supervision with intensive treatment and monitoring.
Notwithstanding Appellant's failure to preserve error on the trial court's failure to conduct
a separate punishment hearing, he was afforded a full opportunity to and did present
mitigating evidence during the adjudication phase. That is all that was required under
Pearson. 994 S.W.2d at 179. Consequently, we find no error and overrule Appellant's
sole contention.
Attorney's fees
We also note an issue not raised by Appellant regarding the assessment of
attorney's fees.4 The written judgment reflects the assessment of $1,912.72 for court
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NO. 07-10-0315-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
OCTOBER 17, 2011
______________________________
MORTY V. WALKER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-418161; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
On January 15, 2009, pursuant to a plea agreement, Appellant, Morty V. Walker,
was granted ten years deferred adjudication for failure to comply with sex offender
registration requirements under article 62.102 of the Texas Code of Criminal
Procedure.1 On November 3, 2009, the State moved to proceed with an adjudication of
1 Tex. Code Crim. Proc. Ann. art. 62.102(a) (West 2006). guilt based on several violations by Appellant of the conditions of his community
supervision. At the hearing on the State's motion, Appellant entered a plea of not true
to the allegations contained in the motion. After hearing testimony, the trial court found
that Appellant had violated the conditions of community supervision, found the two
enhancement allegations contained in the indictment to be true, and sentenced him to
twenty-five years. By a sole point, Appellant alleges a violation of article 42.12, section
5(b) of the Texas Code of Criminal Procedure as a result of the trial court's failure to
conduct a separate punishment hearing. We modify the judgment and affirm as
modified.
Background Facts
The facts flowing from Appellant's guilty plea are minimal. Appellant was
originally convicted of sexual assault of a child under the age of fifteen in the early
1990s. After serving his sentence, in 2007, he was charged with failure to register as a
sex offender and in 2009, was granted deferred adjudication for that offense. At the
hearing on the State's motion to proceed later in 2009, Appellant testified in his own
behalf, admitted to violating the conditions of his community supervision, took
responsibility for his actions and asked the trial court for another chance. He also called
two witnesses in his defense who testified favorably about his work ethic and
intelligence.
After both sides closed, the trial court announced:
So your probation is revoked. The Court finds that you're guilty of the offense of failure to register as a sex offender as shown in the indictment,
2 enhancement allegations are both true pursuant to your plea of guilty back on January 15th of 2009.
After announcing the twenty-five year sentence, the trial court asked, "[i]s there any
reason sentence should not be pronounced today? Trial counsel responded, "[n]o legal
reason, Your Honor.”
Analysis
Relying on Pearson v. State, 994 S.W.2d 176 (Tex.Crim.App. 1999), and Issa v.
State, 826 S.W.2d 159 (Tex.Crim.App. 1992), Appellant argues he had a statutory right
to a separate punishment hearing following revocation of his deferred adjudication
community supervision. While we do agree that Appellant was entitled to a separate
punishment hearing, we do not agree with his position that the failure to provide that
hearing was reversible error.
Generally, when a defendant waives a jury trial and enters a guilty plea to a non-
capital offense, the proceedings become a unitary trial. Barfield v. State, 63 S.W.3d
446, 449-51 (Tex.Crim.App. 2001). In adjudication of guilt proceedings, the assessment
of punishment normally falls on the heels of a finding of guilt.2
The right to a separate punishment hearing is a statutory right that can be
waived. See Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App. 2001). To avoid
2 "After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, . . . continue as if the adjudication of guilt had not been deferred. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2010).
3 forfeiture of that right, a defendant must complain at trial or in a motion for new trial. Id.3
No motion for new trial was filed in the underlying proceeding following Appellant's
adjudication of guilt. Additionally, the record reflects that Appellant was given an
opportunity to object or present punishment evidence when counsel was asked by the
trial court if he knew of any reason why sentence should not be pronounced. See
Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Crim.App. 1999). Failure to bring the
complaint to the trial court's attention waived any error. See id. See also Tex. R. App.
P. 33.1(a).
Furthermore, assuming arguendo that Appellant preserved his complaint, as
explained in Pearson, it is immaterial that the presentation of mitigating evidence comes
before the actual words of adjudication. 994 S.W.2d at 179. In Pearson, the defendant
had the opportunity, albeit during the adjudication phase, to present evidence and testify
in his own behalf. "That is all that is required." Id.
In the underlying proceeding, Appellant had the opportunity to present mitigating
evidence through two witnesses and his own testimony. One of his witnesses testified
favorably about his intelligence and willingness to work hard and described him as
having a "good heart." A second witness testified that she hired Appellant to be a sign
walker for national retail liquidations. When liquidations slowed down, Appellant found
construction work and eventually became employed at Texas Roadhouse restaurant.
She pleaded with the court for Appellant to be given another chance. 3 Issa is distinguishable because the defendant had neither the opportunity to present punishment evidence nor the opportunity to object because the trial judge immediately left the bench after adjudicating guilt and sentencing the defendant in one proclamation. 826 S.W.2d at 161. The Court determined that under the circumstances, error was preserved by the timely filing of a motion for new trial complaining of the trial court's action. Id.
4 During his testimony, Appellant took responsibility for his poor choices and failure
to take advantage of opportunities. He also admitted that his struggle with crack
cocaine for twenty-five years led to a dysfunctional life. However, he felt he had
"redeemable qualities." He believed that if given another chance, he could comply with
the conditions of community supervision with intensive treatment and monitoring.
Notwithstanding Appellant's failure to preserve error on the trial court's failure to conduct
a separate punishment hearing, he was afforded a full opportunity to and did present
mitigating evidence during the adjudication phase. That is all that was required under
Pearson. 994 S.W.2d at 179. Consequently, we find no error and overrule Appellant's
sole contention.
Attorney's fees
We also note an issue not raised by Appellant regarding the assessment of
attorney's fees.4 The written judgment reflects the assessment of $1,912.72 for court
costs of which $1,698.78 is for court-appointed attorney's fees. In order to assess
attorney's fees as court costs, a trial court must determine that the defendant has
financial resources that enable him to offset in part or in whole the costs of legal
services provided. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West 2009). The clerk's
record reflects the trial court found Appellant indigent and appointed counsel to
represent him in this appeal. Unless a material change in his financial resources
occurs, once a criminal defendant has been found to be indigent, he is presumed to
4 Courts of appeals may review unassigned error in criminal cases, particularly where the record discloses error that should be addressed in the interest of justice. Hammock v. State, 211 S.W.3d 874, 878 (Tex.App.--Texarkana 2006, no pet.). Where, as here, the error appears on the face of the judgment and does not involve the merits of the criminal trial, but instead solely addresses the clerical correctness of the judgment, we find that the interest of justice dictate that we address the issue.
5 remain indigent for the remainder of the proceedings. Tex. Code Crim. Proc. Ann. art.
26.04(p) (West Supp. 2010). Furthermore, the record must reflect some factual basis to
support the determination that the defendant is capable of paying attorney's fees.
Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.--Amarillo 2009, no pet.); Perez v.
State, 280 S.W.3d 886, 887 (Tex.App.--Amarillo 2009, no pet.).
Here, there is evidence of record demonstrating that immediately following
rendition of judgment Appellant was indigent and qualified for court-appointed counsel;
thus, we presume his financial status has not changed. Therefore, we conclude the
assessment of court-appointed attorney's fees was improper. See Mayer v. State, 309
S.W.3d 552, 555-56 (Tex.Crim.App. 2010). No trial objection is required to challenge
the sufficiency of the evidence regarding the defendant's ability to pay. Id. When the
evidence does not support payment of court-appointed attorney's fees, the proper
remedy is to delete those fees from the judgment or order. See id. at 557. See also
Anderson v. State, No. 03-09-00630-CR, 2010 Tex.App. LEXIS 5033, at *9 (Tex.App.--
Austin July 1, 2010, no pet.) (not designated for publication) (modifying judgment to
delete attorney's fees). Accordingly, we modify the judgment so as to delete any
obligation to pay $1,698.78 in court-appointed attorney's fees.
Conclusion
As modified, the trial court's judgment is affirmed.
Patrick A. Pirtle Justice
Do not publish.