Julius Maumalanga v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00033-CR

Julius Maumalanga,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the Criminal District Court 3

Tarrant County, Texas

Trial Court No. 0810115D

MEMORANDUM  Opinion

          Appellant Julius Maumalanga entered a negotiated guilty plea for the felony offense of aggravated assault causing serious bodily injury in February 2003.  Under the terms of the plea bargain, the trial court placed Maumalanga on deferred adjudication community supervision for ten years.  A few months later, the State petitioned to proceed to adjudication.  Because Maumalanga was “on the lam” for fifteen months, the hearing on the State’s petition did not take place until November 2004. Maumalanga pled true to every alleged violation in the State’s petition, and the trial court adjudicated him guilty and sentenced him to ten years’ imprisonment.

          In his sole issue, Maumalanga asserts that the trial court erred by failing to hold a separate punishment hearing after adjudicating guilt.  We will affirm.

          After the trial court finds the defendant guilty during a hearing on a petition to proceed to adjudication, the defendant is entitled to a punishment hearing, and the trial judge must allow the accused the opportunity to present punishment evidence.  Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992).  To preserve a complaint that the trial court erred in failing to hold a separate punishment hearing, the defendant must timely object or file a motion for new trial if not afforded the opportunity to object.  Vidaurri v. State, 49 S.W.3d 880, 885-86 (Tex. Crim. App. 2001); Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999). The right to a separate punishment hearing is a statutory right that can be waived.  Vidaurri, 49 S.W.3d at 886.

          In this case, after Maumalanga pled true to every alleged violation in the State’s petition, Maumalanga and his former scoutmaster testified.  The trial court then stated:

I am going to find you guilty of the original offense that you pled guilty to, that being aggravated [ ] assault causing serious bodily injury.

I hereby assess your sentence at ten years in the Institutional Division of the Texas Department of Criminal Justice.

          Maumalanga did not object to the failure to provide a separate punishment hearing, and while we disagree with his assertion that he did not have the opportunity to object, he did not file a motion for new trial.  Maumalanga thus has not preserved his complaint for appeal.

          But even if Maumalanga had preserved his complaint, we would not find error or harm.  Maumalanga essentially received a punishment hearing.  After he pled true, Maumalanga testified that he had been offered a punishment deal by the prosecutor but had elected to be sentenced by the trial court.  Maumalanga asked the trial court to give him another chance with community supervision, explaining that he had a drug and alcohol problem and needed help and that he had three children to care for.  He was asked on cross-examination to tell the trial court why he should get probation and why he should not get a maximum sentence.  Maumalanga’s former scoutmaster testified about Maumalanga’s prior scouting and church experiences and that he would be available to help Maumalanga if he remained on community supervision.

          It was after this evidence that the trial court found Maumalanga guilty and sentenced him.  While this was not the ideal procedure, the trial court did not err.  See Pearson v. State, 994 S.W.2d 176, 178 (Tex. Crim. App. 1999) (trial court did not err where appellant presented punishment evidence, testifying in his own behalf and urging the trial court to continue his probation; it was “immaterial that the opportunity to present evidence came before the actual words of adjudication”); see also Hardeman, 1 S.W.3d at 691 (“As we explained in Pearson, it is immaterial that the presentation of this evidence occurred before the actual words of adjudication.  Hardeman had the opportunity to present evidence during the proceedings, and that is all that is required.” (footnote omitted)).

          We overrule Maumalanga’s sole issue and affirm the trial court’s judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed November 23, 2005

Do not publish

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