Abazie, Uche Emmanuel v. State ( 2006 )

Affirmed and Memorandum Opinion filed March 21, 2006

Affirmed and Memorandum Opinion filed March 21, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00151-CR

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UCHE EMMANUEL ABAZIE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 982,221

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M E M O R A N D U M   O P I N I O N

Appellant, Uche Emmanuel Abazie, appeals from an adjudication of guilt by the trial court following the trial court=s revocation of appellant=s community supervision.  We affirm. 

On June 3, 2004, appellant pled guilty to sexual assault of a child. Appellant entered into a plea bargain and received ten years= deferred adjudication and a $1,000 fine. Appellant also agreed to 31 other conditions of community supervision, including finding gainful employment, attending sex offender treatment, and completing community service.  On September 30, 2004, appellant returned to court where the trial court admonished him for not completing several of his community supervision conditions and required compliance within 30 days.  On November 18, 2004, the State filed a motion to adjudicate and had appellant arrested.  In the State=s motion, it alleged appellant failed to complete ten of the conditions of community supervision as ordered.  On January 6, 2005, the trial court held a hearing on the motion to adjudicate guilt and found appellant violated two major conditions of community supervision.  The trial court then sentenced appellant to five years= confinement in the Texas Department of Criminal Justice, Institutional Division. 

In his first point of error, appellant contends the evidence was legally and factually insufficient to support the trial court=s revocation of appellant=s community supervision.  We do not reach the merits of this point of error because the trial court=s decision to adjudicate guilt is not reviewable. If a defendant violates a condition of community supervision, Article 42.12, section 5(b) of the Texas Code of Criminal Procedure requires the trial court to provide a hearing before proceeding with an adjudication of guilt on the original charge.  See Tex. Code Crim. Proc. Ann. art. 42.12 ' 5(b) (Vernon Supp. 2005).  If the trial court does proceed with an adjudication of guilt, no appeal may be taken from that determination.  Id.  The trial court found appellant violated two provisions of his deferred adjudication community supervision.  Appellant contends the State failed to prove the major violation alleged; specifically, appellant failed to participate in sex offender treatment.  The statute here is clear.  Appellant may not raise on appeal contentions of error in the adjudication of guilt process.  Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999).  Therefore, we do not reach the merits of this claim. 

In his second point of error, appellant contends the sentence assessed against him was excessive and disproportionate to the crime committed. Article 42.12 does not prohibit an appellate court from reaching the merits of a punishment issue after the adjudication of guilt has occurred.  See Tex. Code Crim. Proc. Ann. art. 42.12 ' 5(b).  However, we do not reach the merits here because appellant failed to preserve error.  To preserve error on a punishment issue after an adjudication of guilt, appellant must make a timely objection.  See Tex. R. App. P. 33.1; Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999).  In Hardeman, the trial court did not hold a separate punishment hearing, but rather assessed punishment immediately at the end of the hearing on adjudication of guilt.  Id. In that case, the trial court gave the defendant an opportunity to object before assessing punishment if he so desired. Id.  When punishment was assessed in this case, the trial court gave appellant an opportunity to raise any issues he may have had during that portion of the hearing.  In fact, when appellant=s counsel gave his closing argument to the court, he asked the court to consider five to seven years for punishment if it was going to revoke community service.  At no point during the hearing did appellant=s counsel object to the assessment of punishment. Therefore, appellant failed to preserve error on this issue.  See Holley v. State, 167 S.W.3d 546, 549 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (holding appellant failed to preserve error on proportionality of punishment when no error was asserted at trial). Therefore, we overrule appellant=s second point of error. 

Accordingly, we affirm the judgment of the trial court.

/s/        John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed March 21, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

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