Salvador Paul Herrera v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 2, 2024
• Docket: 07-23-00254-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00254-CR

SALVADOR PAUL HERRERA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 287th District Court Parmer County, Texas Trial Court No. 3672, Honorable Gordon H. Green, Presiding

February 2, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Salvador Paul Herrera appeals from the trial court’s adjudication of his guilt,

revocation of his community supervision, and pronouncement of sentence. Through his

sole issue, he contends the trial court erred in failing to hold a separate punishment

hearing. We affirm.

Background

In 2019, appellant was placed on deferred adjudication community supervision

following his plea of guilty. In 2023, the State filed a motion to adjudicate his guilt and revoke his community supervision. At the hearing, appellant pleaded “true” to eight of the

nine allegations. After hearing evidence and arguments of the parties, the court found

the allegations to be “true” and adjudicated him guilty of injury to a child. The court then

recessed to review the pre-sentence investigation report. Appellant was then asked if he

had “any legal reason as to why sentence should not be imposed at this time,” at which

point the court was told “no legal reason.”

Analysis

Through his sole issue on appeal, appellant argues the trial court committed

reversible error when it failed to conduct a separate punishment hearing to allow him to

present mitigating evidence. We find appellant failed to preserve this issue for our review

and overrule it.

Appellant cites Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) to

support his position. There, the Court held that “when a trial court finds that an accused

has committed a violation as alleged by the State and adjudicates a previously deferred

finding of guilt, the court must then conduct a second phase to determine punishment.”

Id. (discussing former article 42.12, section 3d(b) that has since been repealed).

Unlike in Issa, the appellant here failed to object to the purported absence of a

separate punishment hearing. He did so neither at the time of sentencing, despite being

afforded the chance to do so, nor through his motion for new trial. Thus, his particular

complaint went unpreserved for review. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim.

App. 2001) (requiring preservation of a complaint about the absence of a separate

punishment hearing through contemporaneous objection or a motion for new trial);

2 Salinas v. State, No. 07-10-0191-CR, 2011 Tex. App. LEXIS 1674, at *2 (Tex. App.—

Amarillo Mar. 8, 2011, no pet.) (mem. op., not designated for publication) (same).

We affirm the judgment of the trial court.

Brian Quinn Chief Justice

Do not publish.