William Marshall Storey v. State

Opinion

                                      COURT OF APPEALS

                                       SECOND DISTRICT OF TEXAS

                                                   FORT WORTH

                                        NO. 2-06-403-CR

WILLIAM MARSHALL STOREY                                               APPELLANT

                                                   V.

THE STATE OF TEXAS                                                               STATE

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    FROM CRIMINAL DISTRICT COURT NO. THREE OF TARRANT COUNTY

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                                MEMORANDUM OPINION^[1]

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This is an appeal from a revocation of community supervision.  In a single point, Appellant William Storey argues that the trial court erred by failing to conduct a separate punishment hearing after adjudicating Storey=s guilt. Because the record clearly shows that a separate punishment hearing was held, we will affirm.

In his sole point, Storey complains that the trial court erred by failing to conduct a separate punishment hearing after adjudicating Storey=s guilt.^[2]  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 bifurcate the accused=s trial into an adjudication of guilt phase and a punishment phase.  Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992).  Thus, the defendant is entitled to a punishment hearing after the adjudication of guilt, and the trial court must allow the accused to present evidence to mitigate punishment.  Id.; see Pearson v. State, 994 S.W.2d 176, 178 (Tex. Crim. App. 1999).

In this case, the record reflects that the trial court properly bifurcated Storey=s trial.  On August 16 and 24, 2006, the trial court conducted a hearing on the State=s motion to revoke Storey=s community supervision.  At the conclusion of the hearing, the trial court found Storey guilty.  At that point, the following exchange occurred:

THE COURT:  I will hereby assess your sentence in this case B

[STOREY=S ATTORNEY]:  Judge, I hate to interrupt B

THE COURT:  Yes, you do.

[STOREY=S ATTORNEY]:  B but I feel I must.

THE COURT:  You want to have a bifurcated hearing?

[STOREY=S ATTORNEY]:  I would like to have a bifurcated hearing . . . .

THE COURT:  Okay.  That=s fine.

The trial court then reset the case for a later sentencing hearing.

Three months later, on November 13, 2006, the trial court held the sentencing hearing.  At the hearing, Storey offered witness testimony in mitigation of punishment and a presentencing investigation report.  Storey called his mother, who testified about her son=s children and how much they cared for him.  Storey then rested.  After the State waived opening, Storey=s attorney made a lengthy closing statement, followed by a brief statement from the State.  The trial court then sentenced Storey to twenty months in state jail.

Despite having had a separate punishment hearing, clearly delineated by the passage of three months after the adjudication of guilt, in which he offered a presentence investigation report, presented a witness, and gave closing statements, Storey claims on appeal that the trial court denied him the opportunity to present evidence on his behalf in mitigation of punishment.^[3] 

Because the trial court afforded Storey the opportunity to present evidence in mitigation of punishment at a sentencing hearing conducted after and separate from the adjudication hearing, we hold that the trial court did not err.  We overrule Storey=s sole point and, accordingly, affirm the trial court=s judgment.

PER CURIAM

PANEL F: WALKER, LIVINGSTON and DAUPHINOT, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: October 4, 2007

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^[1]See Tex. R. App. P. 47.4.

^[2]We have jurisdiction to evaluate the merits of Storey=s appeal under Vidaurri v. State, which held that when an appellant does not challenge his conviction but rather challenges the sentencing process, a general notice of appeal will confer jurisdiction on the appellate court.  49 S.W.3d 880, 884 (Tex. Crim. App. 2001); Smith v. State, 52 S.W.3d 475, 476 (Tex. App.CCorpus Christi 2001, pet. ref=d).  Because Storey is challenging the sentencing process, we reach the merits of his claim.

^[3]We note that Storey relies on an exchange between the trial court and Storey=s attorney that is not in any part of the record.