Salvador Paul Herrera v. the State of Texas ( 2024 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-23-00254-CR
SALVADOR PAUL HERRERA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 287th District Court
Parmer County, Texas
Trial Court No. 3672, Honorable Gordon H. Green, Presiding
February 2, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Salvador Paul Herrera appeals from the trial court’s adjudication of his guilt,
revocation of his community supervision, and pronouncement of sentence. Through his
sole issue, he contends the trial court erred in failing to hold a separate punishment
hearing. We affirm.
Background
In 2019, appellant was placed on deferred adjudication community supervision
following his plea of guilty. In 2023, the State filed a motion to adjudicate his guilt and
revoke his community supervision. At the hearing, appellant pleaded “true” to eight of the
nine allegations. After hearing evidence and arguments of the parties, the court found
the allegations to be “true” and adjudicated him guilty of injury to a child. The court then
recessed to review the pre-sentence investigation report. Appellant was then asked if he
had “any legal reason as to why sentence should not be imposed at this time,” at which
point the court was told “no legal reason.”
Analysis
Through his sole issue on appeal, appellant argues the trial court committed
reversible error when it failed to conduct a separate punishment hearing to allow him to
present mitigating evidence. We find appellant failed to preserve this issue for our review
and overrule it.
Appellant cites Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) to
support his position. There, the Court held that “when 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. (discussing former article 42.12, section 3d(b) that has since been repealed).
Unlike in Issa, the appellant here failed to object to the purported absence of a
separate punishment hearing. He did so neither at the time of sentencing, despite being
afforded the chance to do so, nor through his motion for new trial. Thus, his particular
complaint went unpreserved for review. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim.
App. 2001) (requiring preservation of a complaint about the absence of a separate
punishment hearing through contemporaneous objection or a motion for new trial);
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Salinas v. State, No. 07-10-0191-CR, 2011 Tex. App. LEXIS 1674, at *2 (Tex. App.—
Amarillo Mar. 8, 2011, no pet.) (mem. op., not designated for publication) (same).
We affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
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