Silas Simoenoe Panzu A/K/A Silas S. Panzu v. State ( 2011 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
SILAS SIMOENOE PANZU, No. 08-10-00111-CR
a/k/a SILAS S. PANZU, §
Appeal from
Appellant, §
213th District Court
v. §
of Tarrant County, Texas
THE STATE OF TEXAS, §
(TC # 1053499D)
Appellee. §
OPINION
Silas Simoenoe Panzu appeals the trial court’s order revoking community supervision and
adjudicating him guilty of delivery of a controlled substance, one gram or more but less than four
grams of cocaine. On appeal, Appellant argues the adjudication proceeding violated his due process
rights under both the United States Constitution and the Texas Constitution because the trial court
revoked his community supervision and assessed punishment without holding a separate hearing on
the question of punishment. For the reasons that follow, we affirm.
FACTUAL BACKGROUND
On March 23, 2007, Appellant pled guilty to the offense of delivery of a controlled substance,
one gram or more but less than four grams of cocaine, in exchange for deferred adjudication with
four years’ community supervision. Two years later, on June 12, 2009, the State filed its First
Amended Second Petition to Proceed to Adjudication. In four paragraphs, the petition alleged that
Appellant violated the conditions of his community supervision in the following ways: (1) on or
about November 7, 2008, Appellant committed the offense of possession of marijuana, two ounces
or less; (2) on or about June 3, 2009, Appellant gave a fictitious name, to wit: Tahir Nefermaat
El Bey,1 to a police officer who had lawfully arrested or detained him; (3) Appellant failed to
complete his court ordered community service hours; and (4) Appellant failed to report to his
community supervision officer as scheduled during the month of May 2009.2
On March 18, 2010, the trial court held a hearing on the State’s petition. Appellant pled not
true as to all four counts.3 At the hearing, the State presented six witnesses, and the defense
presented two witnesses, including Appellant, who testified on his own behalf. At the conclusion
of the evidence, and after final arguments by both sides, the trial court found the allegations in
paragraphs one and two not true and the allegations in counts three and four true. The trial court then
adjudicated Appellant guilty of the underlying possession charge, and immediately sentenced him
to two years’ imprisonment.
Appellant filed a motion for a new trial alleging: (1) that the verdict is contrary to the law
and evidence; and (2) that he received ineffective assistance of counsel based on his attorney’s
failure to timely inform him as to new allegations. Although no ruling on the motion for a new trial
appears in the record, the motion was overruled by operation of law. See Tex.R.App.P. 21.8(a), (c).
This appeal follows.
SEPARATE PUNISHMENT HEARING
1
At the hearing, Appellant claimed the name Silas Simoenoe Panzu is a legal fiction and his actual name is
Tahir Nefermaat El Bey. He claims to be an authorized representative for Silas Panzu, just as the State’s attorney is an
authorized representative for Texas. At the hearing he brought several documents, including a passport issued by the
world service authority to Tahir Nefermaat El Bey, showing his M oorish status, or that his nationality is now that of “a
Moor, an indigenous aboriginal of the continental United States.” However, the trial court decided to proceed under the
registered name of Silas Simoenoe Panzu absent any official documents from the State of Texas showing a name change.
2
Appellant was required to complete 240 hours of community service at no less than twenty hours per month
as directed by the court or supervision officer.
3
As to count three, Appellant stated: “I’m going to have to -- I don’t wish to answer.” The court then entered
a plea of not true on his behalf.
In two issues, Appellant complains that the trial court erred by failing to conduct a separate
punishment hearing after finding allegations three and four to be true. According to Appellant, the
trial court’s failure to hold a punishment hearing deprived him of the opportunity to exercise his
fundamental right to put on evidence in mitigation of punishment. The State initially responds by
asserting that Appellant failed to properly preserve his complaints for Appellate review. We agree.
In general, a party must make a timely, specific, objection and obtain a ruling on the
objection in order to preserve a complaint for appellate review. TEX .R.APP .P. 33.1(a); Pearson v.
State, 994 S.W.2d 176, 179 (Tex.Crim.App. 1999). However, the Court of Criminal Appeals has
recognized an exception to the general rule in certain limited circumstances. See Issa v. State, 826
S.W.2d 159 (Tex.Crim.App. 1992).
In Issa, the trial court revoked the defendant’s deferred adjudication probation, adjudicated
the defendant guilty, and imposed defendant’s sentence in one ruling, and then left the bench without
giving the defendant an opportunity to object to the actions taken. Issa, 826 S.W.2d at 160. Issa
later moved for new trial on the ground that the trial court had erred in failing to provide him an
opportunity to present evidence in mitigation of punishment. Id. The Court of Criminal Appeals
looked to the following fairness language contained in Duhart v. State, 668 S.W.2d 384
(Tex.Crim.App. 1984):
[f]airness would dictate that a defendant be accorded an opportunity to offer
appropriate evidence in mitigation of punishment after the revocation of ‘probation’
and the adjudication of guilt and before the assessment of punishment if such
evidence has not already been elicited during the proceedings, particularly if the
defendant requests the opportunity.
Issa, 826 S.W.2d at 161, citing Duhart, 668 S.W.2d at 387. The court then held that when a trial
court finds a violation as alleged by the State true and adjudicates a previously deferred finding of
guilt, the court must conduct a separate “second phase” to determine punishment. Issa, 826 S.W.2d
at 161.
In Pearson, the court acknowledged that under the circumstances in Issa, a complaint could
be preserved by raising it for the first time in a motion for a new trial. Pearson, 994 S.W.2d at 179.
But Pearson also modified Issa’s insistence on a separate punishment hearing concluding that it is
immaterial that the opportunity to present evidence came before the actual words of adjudication as
long as the defendant had the opportunity to present evidence during the proceedings. Id.
Here, Appellant never requested a separate punishment hearing and did not object when the
trial court proceeded to sentencing immediately after adjudicating him guilty. Appellant
acknowledges his failure to object, but contends his situation places him in the same position as Issa,
such that his failure to object did not waive his complaint on appeal. Even if Issa applies, Appellant
still failed to preserve error because he did not raise a complaint about the trial court’s procedure
in his motion for new trial. He had three opportunities to do so. He could have requested a separate
punishment hearing, he could have objected to the lack of a punishment hearing when the trial court
adjudicated him guilty, and he could have moved for a new trial on that basis.4 Because he did not
4
Even if Appellant had raised the issue in his motion for a new trial, his argument is unpersuasive. Upon
revocation in the case at bar Appellant was given the opportunity to present, and did present, evidence during the
proceeding. W hile a trial court must provide a defendant the opportunity to present punishment evidence, all that is
required is that a defendant be given an opportunity to present evidence; it is not necessary that a punishment hearing
be held at a different time or date. See Euler v. State, 218 S.W .3d 88, 91 (Tex.Crim.App. 2007); see also Morris v. State,
No. 06-03-00069-CR, 2003 W L 22763214 *2 (Tex.App.--Texarkana Nov. 24, 2003, no pet.); Norman v. State, 844
avail himself of any one of these opportunities, he has failed to preserve the issue for appellate
review. See TEX .R.APP .P. 33.1; Euhler, 218 S.W.3d at 92; Vidaurri v. State, 49 S.W.3d 880, 886
(Tex.Crim.App. 2001). Having overruled both issues for review, we affirm the judgment of the trial
court.5
July 6, 2011
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Rivera, JJ.
(Do Not Publish)
S.W .2d 903, 904 (Tex.App.--Texarkana 1992, no pet.)(cases noting that while Issa relaxed the requirement of a
contemporaneous objection, a defendant is still required to bring his or her complaint to the trial court’s attention in some
fashion to preserve error for review). Appellant’s contention that he was denied the ability to prepare and present certain
mitigating evidence is similarly unpersuasive. See Euhler, 218 S.W .3d at 91(“Part of being prepared for a revocation
hearing is being prepared to present evidence and argument on the question of the proper disposition in the event that
the trial court finds that the conditions of probation have been violated.”).
5
Although not identified as a separate issue, Appellant also contends in his brief that even if we find that he
failed to preserve error, we are still permitted to recognize fundamental error in criminal cases under Texas Rule of
Evidence 103 and should do so here. For the reasons stated above, we do not find fundamental error occurred and we
need not address the same argument again under a different name.