John Lazo v. State ( 2014 )

NUMBER 13-13-00303-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOHN LAZO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Chief Justice Valdez
Appellant, John Lazo, pleaded guilty to aggravated assault, see TEX. PENAL CODE
ANN. § 22.02 (West, Westlaw through 2013 3d C.S.) and pursuant to a plea agreement
with the State, received deferred adjudication community supervision for a period of ten
years. Subsequently, the State filed a motion to revoke, alleging that Lazo violated the
terms of community supervision. At the hearing on the motion to revoke, appellant
pleaded “true” to the allegations, and after hearing evidence, the trial court revoked Lazo’s
community supervision, adjudicated him guilty, and sentenced him to twenty years’
confinement. By two issues, Lazo contends that he was denied due process under the
United States and Texas Constitutions, and that he received ineffective assistance of
counsel. We affirm.
I. DUE PROCESS
At the revocation hearing, after Lazo pleaded “true” to the State’s allegations that
he violated the conditions of community supervision, evidence was presented to the trial
court. The State called Officer Joseph Garza stating that his testimony was offered
“strictly for punishment evidence.” After other witnesses testified, the prosecutor and
defense counsel stated that each was resting. The trial court asked, “All right. Rest as
to punishment phase?” And, each attorney responded, “Yes.” After hearing closing
argument from each attorney, the trial court revoked community supervision, adjudicated
Lazo guilty, and sentenced him to twenty years’ confinement. Lazo made no objection.
Appellant argues that the trial court denied him an opportunity to be heard on the
issue of punishment and thus, denied him due process of law. See Issa v. State, 826
S.W.2d 159, 161 (Tex. Crim. App. 1992) (per curiam). However, Lazo made no objection
comporting with his argument on appeal despite having the opportunity to do so. See
TEX. R. APP. P. 33.1(a)(1); Euler v. State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007) (“If
appellant wanted an opportunity to present evidence and argument on the question of
punishment, it was incumbent upon him to ask for that opportunity and to be ready to
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present such evidence and argument as soon as the trial court announced its finding that
he had violated the conditions of his probation.”).
Moreover, the law provides no “absolute right to a separate punishment hearing”
after the adjudication of guilt at a revocation hearing. Hardeman v. State, 1 S.W.3d 689,
690 (Tex. Crim. App. 1999). And, in this case, the trial court specifically asked if both
attorneys were resting regarding punishment and each attorney rested. Thus, Lazo was
provided an opportunity to be heard regarding punishment. Lazo was given “the
opportunity to present evidence during the proceedings, and that is all that [was]
required.” See id. at 691. We overrule Lazo’s first issue.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
By his second issue, Lazo contends that his trial counsel was ineffective because
he failed to object immediately at the end of the adjudication hearing on the basis that the
trial court did not conduct a separate hearing on punishment. However, as stated above,
there is no absolute right to a separate punishment hearing after the adjudication of guilt
at a revocation hearing. Id. Thus, Lazo has not shown that his trial counsel’s omission
rendered his performance deficient. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005) (providing that we apply a two-part test in determining whether trial
counsel rendered ineffective assistance of counsel by first requiring that the appellant
show that counsel’s performance was deficient, or in other words, that counsel's
assistance fell below an objective standard of reasonableness) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)); Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999). Moreover, Lazo does not argue that there is a reasonable probability
that, but for counsel’s alleged error, the result would have been different. See Thompson,
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9 S.W.3d at 812; see also Strickland, 466 U.S. at 694. Accordingly, we overrule Lazo’s
second issue.
III. CONCLUSION
We affirm the trial court’s judgment.
/s/ Rogelio Valdez
Rogelio Valdez
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
30th day of October, 2014.
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