Nathan Andrew Kniatt v. State ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-03-00199-CR

Nathan Andrew Kniatt,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 25704CR

ORDER ON Opinion

Appellant’s motion for rehearing is granted in part.  The Court’s Opinion and judgment dated June 27, 2007, are withdrawn.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Motion for rehearing granted in part

Order issued and filed December 5, 2007

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     Appellant Polk appeals his conviction for burglary, for which he was sentenced to 20 years in the Institutional Division of the Texas Department of Criminal Justice.

      In 1993 Appellant waived a jury, signed a judicial confession, acknowledged the court's admonitions of statutory and constitutional rights, and pled guilty to burglary. He was placed on deferred adjudication probation for five years and assessed a fine of $500.

      In June 1996 the State filed an amended motion to proceed with adjudication of guilt alleging six violations of the terms of Appellant's probation. Appellant pled "true" to five of the allegations. After a hearing, the court found the State's motion to be proven beyond a reasonable doubt, granted the motion, adjudicated Appellant guilty on his 1993 plea, and sentenced him to 20 years in prison.

      The court did not conduct a separate punishment hearing after finding Appellant guilty. Appellant did not object to the lack of a separate punishment hearing and did not file a motion for a new trial.

      Appellant appeals on one point of error: "The trial court erred in failing to conduct a punishment hearing after finding Appellant guilty."

      The trial court must afford a defendant the opportunity to present evidence regarding punishment after it has found the defendant guilty. Tex. Code Crim. Proc. art. 37.07, § 3; Isso v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992).

      But to preserve this error for appellate review, the party must make a timely and specific objection in the trial court. Tex. R. App. P. art. 33.1(a); Granviel v. State, 552 S.W.2d 107, 121 (Tex. Crim. App. 1977); Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994); or raise the issue in a timely motion for a new trial. Borders v. State, 846 S.W.2d 834, 835 (Tex. Crim. App. 1993); Cole v. State, 931 S.W.2d 578, 580 (Tex. App.—Dallas 1993, pet. ref’d); Christian v. State, 870 S.W.2d 86, 88 (Tex. App.—Dallas 1993, no pet.).

      In this case Appellant neither objected at the revocation hearing nor presented his complaint in a motion for a new trial and, thus, has waived any error in the trial court's failure to conduct a separate punishment hearing, after finding him guilty in the 1993 burglary case.

      Appellant's point is overruled. The judgement is affirmed.

                                                                         FRANK G. McDONALD

                                                                         Chief Justice (Retired)

Before Chief Justice Davis,

      Justice Vance and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed April 28, 1999

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