Jason M. Powers v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00432-CR
JASON M. POWERS APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
Appellant Jason M. Powers appeals his conviction for credit card abuse,
which is a state jail felony.2 He argues that the trial court erred when it did not
hold a separate punishment hearing after revoking his community supervision
and adjudicating his guilt. We affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 32.31(b)(1)(A), (d) (Vernon Supp. 2010).
Background Facts
A Tarrant County grand jury indicted appellant for credit card abuse.
Appellant pled guilty. The trial court placed him on deferred adjudication
community supervision for a two-year term, and appellant agreed to comply with
several explicit conditions.
Less than a year later, the State petitioned the trial court to proceed with
adjudicating appellant guilty, alleging that appellant failed to attend a substance
abuse evaluation and an intensive day treatment program. Appellant pled true to
both of these contentions, and then he briefly testified about the facts of the
underlying offense and why he had failed to comply with the community
supervision conditions. The trial court asked whether the State or appellant had
any additional questions to ask, and then both sides rested and closed. After the
parties declined to give closing arguments, the trial court found appellant guilty
and immediately sentenced him to a year’s confinement. Appellant’s counsel
said there was “no legal reason” why the sentence should not be pronounced.
Appellant filed a motion for new trial on the sole ground that the “verdict was
contrary to law and evidence,” and he also filed a notice of this appeal.
The Forfeiture of Appellant’s Point
In his only point, appellant argues that the trial court erred when it failed to
hold a separate punishment hearing after adjudicating his guilt. He asks us to
remand this case to the trial court for a new punishment hearing. The State
2
argues, in part, that appellant’s point has been forfeited. We agree with the
State.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d
249, 265 (Tex. Crim. App. 1998) (op. on reh=g), cert. denied, 526 U.S. 1070
(1999). Further, the trial court must have ruled on the request, objection, or
motion, either expressly or implicitly, or the complaining party must have objected
to the trial court=s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State,
138 S.W.3d 334, 341 (Tex. Crim. App. 2004).
The court of criminal appeals has held that a separate punishment hearing
that follows a revocation of deferred adjudication and an adjudication of guilt is “a
statutory right which can be waived.” Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.
Crim. App. 2001). Thus, to avoid forfeiture of the right to a separate punishment
hearing, a defendant must complain at trial or in a motion for new trial. Id.;
see Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999); Lincoln v.
State, 307 S.W.3d 921, 925 (Tex. App.—Dallas 2010, no pet.); Gober v. State,
917 S.W.2d 501, 502 (Tex. App.—Austin 1996, no pet.) (“We hold that an
accused who raises no objection [to the lack of a separate hearing on
punishment] at the [adjudication] hearing or in a motion for new trial has failed to
3
preserve error and may not raise his complaint for the first time on appeal.”).3
Appellant invites us to adopt the reasoning of a concurring opinion in Vidaurri, but
we must follow the precedent of the majority’s opinion. See State v. Stevenson,
993 S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no pet.) (op. on remand)
(“Because a decision of the court of criminal appeals is binding precedent, we
are compelled to comply with its dictates.”).
We hold that appellant’s failure to object to the lack of a separate
punishment hearing at trial or in a motion for new trial forecloses his ability to
raise his point on appeal. See Vidaurri, 49 S.W.3d at 886. Thus, we overrule the
point.
3
We have held the same. See Levier v. State, No. 02-03-00436-CR, 2004
WL 1175318, at *2 (Tex. App.—Fort Worth May 27, 2004, no pet.) (mem. op., not
designated for publication). In the case that appellant principally relies on, the
defendant preserved error about the lack of a punishment hearing because he
specifically raised the issue in a motion for new trial. See Issa v. State, 826
S.W.2d 159, 161 (Tex. Crim. App. 1992).
4
Conclusion
Having overruled appellant’s only point, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 13, 2011
5