Smith v. State

290 S.W.3d 368, 2009 Tex. App. LEXIS 3275, 2009 WL 1312953
Court of Appeals of Texas·Decided May 12, 2009·No. 14-07-00966-CR·Published·Cited by 40 cases

Opinions

MAJORITY OPINION

WILLIAM J. BOYCE, Justice.

Appellant Trenard Jermaine Smith challenges the sentence assessed following the trial court’s finding that he violated the terms of his community supervision after pleading guilty to possession of a controlled substance with intent to deliver. The trial court assessed punishment as confinement for 30 years. Appellant contends that the trial court erred in reopening the adjudication hearing after the State and the defense rested and delivered closing arguments. We affirm the judgment as modified.

Background

Appellant was charged on December 28, 2006 with possession of between four and 200 grams of cocaine with intent to deliver. On January 8, 2007, appellant waived indictment and pleaded guilty to this offense in open court. The trial court sentenced [370] appellant to deferred adjudication and five years of community supervision pursuant to the State’s recommendation.

At the January 8 hearing, the trial court admonished appellant regarding the terms and conditions of his community supervision. The trial court informed appellant that any violation of these terms and conditions could subject him to any punishment within the statutory range for the offense charged. The trial court notified appellant that the offense charged was a first degree felony punishable by imprisonment from five to 99 years.

On April 29, 2007, appellant was arrested after allegedly robbing Jose Herrera at gunpoint. On May 3, 2007, the State filed a motion to adjudicate guilt that alleged 12 violations by appellant of the terms and conditions of his community supervision, including the armed robbery of Herrera.

On September 11, 2007, the trial court began a hearing on the State’s motion to adjudicate appellant’s guilt. Appellant waived formal reading of the motion and pleaded not true to the alleged violations of his community supervision.

During the September 11 hearing, Houston Police Officer Randy West testified regarding his investigation into the armed robbery of Jose Herrera on April 29, 2007. After presentation of three witnesses by the State, both sides rested, closed, and delivered closing arguments. Herrera did not testify before closing arguments. Appellant argued for a sentence “in the minimum range of punishment,” while the State argued for a sentence of confinement for at least 20 years.

The trial court found that appellant violated his community supervision in that he failed to (1) report to his community supervision officer; (2) perform community service; (3) obtain an evaluation for drug treatment; (4) make efforts to begin drug treatment and aftercare via the STAR Drug Court Program; (5) provide and remain at the same address; and (6) obtain an offender identification card. The trial court stated that there was “evidence of other very serious, perhaps even more serious violations,” but made no findings with regard to those allegations. The trial court then found appellant guilty of the first degree felony offense of possession of a controlled substance with intent to deliver, ordered a pre-sentence investigation report, and went into recess.

The trial court allowed the State to reopen the hearing 24 minutes later to present testimony from Jose Herrera about being robbed by appellant at gunpoint. The following exchange occurred:

COURT: All right. Let the record reflect that we recessed earlier in 1098204, the State of Texas versus Trenard Jermane [sic] Smith. The Court had made certain findings, not made other findings. The Court has now been apprised that their witness, Jose Herrera, is now present. The court is going to allow the State to reopen. The Court is going to do that for the reason that the testimony of Mr. Herrera would certainly be relevant and admissible on the matter of punishment, which the Court is now considering in Cause No. 1098204. It would be supercilious to rule that while it would be admissible if — for punishment, it would be inadmissible, since this is not some 24 minutes after the Court had made its previous findings.
The Court is going to allow the State to reopen and present that testimony for the substance of the violations of probation.
Both sides ready to proceed again?
STATE: Yes, your Honor.
[371] COUNSEL: At this time, I would object to proceeding any further. I would ask the record to reflect—
COURT: Your objection •will be overruled.
Call your next.

The State then called Herrera. The trial court recessed the proceedings after Herrera’s testimony.

On November 12, 2007, the trial court reconvened to sentence appellant. Both sides again delivered closing arguments and repeated their sentencing requests from the closing arguments of September 11. The trial court found the allegations “with regard to committing the felony offense of aggravated robbery are true.”

The trial court sentenced appellant to confinement for 30 years for the felony offense of possession of a controlled substance with intent to deliver. The trial court’s written judgment signed on November 12, 2007 reflects commission of an offense against the state of Texas as the only violation of the terms and conditions of community supervision committed by appellant.1

Analysis

I. Did the Trial Court Err When It Reopened the Adjudication Hearing?

Relying on article 36.02 of the Texas Code of Criminal Procedure, appellant contends that the trial court erred in reopening the adjudication hearing after both sides rested and delivered closing arguments. We address this argument on the merits.2

A. Does Article 36.02 Apply to an Adjudication Hearing?

As a threshold matter, we consider whether article 36.02 applies to a probation-revocation hearing. Article 36.02 reads in full: “The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that is necessary to a due administration of justice.” Tex.Code Crim. Proc. Ann. art. 36.02 (Vernon 2007) (emphasis added).

The Court of Criminal Appeals recently suggested that article 36.02’s application to “trial without jury” has not been resolved. See Rodriguez v. State (Rodriguez I), No. PD-0869-05, 2006 WL 2706859, at *2 (Tex.Crim.App. Sept. 20, 2006) (per curiam, not [372] designated for publication). The Court of Criminal Appeals decided Rodriguez I on other grounds, appearing to leave the question of article 36.02’s applicability to non-jury trials unsettled. See id. (“The issue of whether Article 36.02 applies to trial without jury is important. It is not clear that the issue is squarely before us.”). Rodriguez I arose in the context of a bench trial, not a probation-revocation hearing. See id. at *1.

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Smith v. State, 290 S.W.3d 368, 2009 Tex. App. LEXIS 3275, 2009 WL 1312953 (Tex. Ct. App. 2009).

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