Ahmed M. Hammad v. State ( 2007 )

Affirmed and Memorandum Opinion filed April 19, 2007

Affirmed and Memorandum Opinion filed April 19, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01124-CR

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AHMED M. HAMMAD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 958,237

M E M O R A N D U M    O P I N I O N

Appellant, Ahmed M. Hammad, was charged with burglary of a habitation. Appellant pleaded nolo contendere, without an agreed recommendation, and the trial court deferred adjudication of guilt and placed him on community supervision for four years.  The State moved to adjudicate appellant=s guilt based on his failure to comply with the terms of his community supervision.  On October 26, 2005, the trial court adjudicated appellant guilty and assessed punishment at 20 years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In two points of error, appellant claims  the trial court erred in failing to hold a separate punishment hearing, thereby (1) denying him an opportunity to present mitigating evidence in violation of Articles 37.07 and 42.12(5)(b) of the Texas Code of Criminal Procedure and (2) denying his due process rights under the Texas and United States Constitutions.^[1] We affirm.

At the adjudication hearing, both the State and appellant called witnesses on the merits of the allegations of the State=s motion to adjudicate guilt.  Appellant took the opportunity to cross-examine the State=s witnesses. After the defense had rested and the prosecutor and defense counsel had presented argument, the trial court found all allegations in the motion to adjudicate, save one, to be true.  The trial court did not adjudicate appellant=s guilt at that time, but, instead, asked counsel, AAre we ready to proceed to disposition?@  Both the prosecutor and defense counsel stated they were ready. 

At disposition, the State called three witnesses, two of whom testified about how their lives had been affected by appellant=s actions. Appellant=s counsel cross-examined each of the State=s witnesses. After the State had rested, the trial court asked defense counsel, AIs there any evidence in disposition from the Defense, Mr. Castillo?@  Defense counsel responded, ANo, Your Honor.@  The following day, both sides presented argumentCthe prosecutor urging the maximum sentence and defense counsel reminding the trial court of the conflicting testimony.  The trial court then found appellant guilty of burglary of a habitation and assessed punishment at 20 year=s confinement. 

Relying on Issa v. State,^[2] appellant asserts he was entitled to a separate hearing on punishment.  In Issa, the trial court pronounced the defendant=s sentence immediately after adjudicating him guilty without an opportunity to be heard on punishment.  Id. at 160.  The Issa court held, Awhen 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 then conduct a second phase to determine punishment.@  Id. at 161. 

The Texas Court of Criminal Appeals has clarified that AIssa does not stand for the absolute right to a separate punishment hearing.  Instead, it requires the defendant have the opportunity to present evidence in mitigation of punishment if not afforded during adjudication.@  Hardeman v. State, 1 S.W.3d 689, 690B91 (Tex. Crim. App. 1999); see also Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999) (AAppellant had the opportunity to present evidence during the proceedings.  That is all that is required.@) (emphasis in original).  Moreover, A[i]t is material that the opportunity to present evidence [comes] before the actual words of adjudication.@  Pearson, 994 S.W.2d at 179. 

Appellant complains, as in Issa, the trial court adjudicated his guilt and assessed punishment in one proclamation without giving him an opportunity to object or present mitigation evidence. Appellant=s complaint is without merit.  Here, appellant had the opportunity to present mitigating evidence when the trial court conducted the Adisposition@ portion of the adjudication hearing, but appellant declined to do so.  Appellant=s first and second points of error are overruled.

Accordingly, the judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed April 19, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  U.S. Const. amends. 5 & 14; Tex. Const. art. I, ' 19; Tex. Code Crim. Proc. Ann. arts. 37.07 (Vernon 1996) & 42.12(5)(b) (Vernon 1996).

^[2]  826 S.W.2d 159 (Tex. Crim. App. 1992).