DocketNumber： 01-02-00418-CR
Filed Date： 6/12/2003
Status： Precedential
Modified Date： 9/2/2015
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-02-00418-CR
____________
WILLIAM FLANN BAILEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 845994
MEMORANDUM OPINION
A trial court found appellant, William Flann Bailey, guilty after he pleaded true to violating the terms of his community supervision. The trial court assessed punishment at two years’ confinement. In his sole point of error, appellant contends that the record does not show that the trial court conducted a separate punishment hearing after adjudicating guilt. We affirm.Background
Appellant pleaded guilty to the felony offense of assault on a family member by causing bodily injury. On May 31, 2000, the trial court deferred adjudication of guilt and placed appellant on five years community supervision. In April 2001, the State filed a motion to adjudicate guilt, alleging that appellant did not comply with the terms and conditions of his community supervision, to which appellant pleaded true.
Waiver
Appellant contends that the record did not show the trial court conducted a separate punishment hearing after adjudicating guilt. A trial court that finds an accused has violated his community supervision must then conduct a hearing to determine his punishment. Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992). Appellant argues that, because there is no evidence that a hearing occurred, we should presume one did not. We disagree.
Appellate courts apply a presumption of regularity of proceedings unless the record otherwise indicates. Jones v. State, 646 S.W.2d 449 (Tex. Crim. App. 1983) (where procedural requirements do not affirmatively appear in record to have been violated, presumption of regularity prevails); Moussazadeh v. State, 962 S.W.2d 261, 264 (Tex. App.—Houston [14th Dist.] 1998, pet ref’d). Appellant has the burden to overcome this presumption, yet, he has failed to bring forward any evidence to show that the trial court did not conduct a punishment hearing. Appellant waived his right to have a court reporter record all court proceedings, and the clerk’s record does not affirmatively show that the trial court did not conduct a punishment hearing. Because appellant has failed in his burden, we must presume the trial court conducted a punishment hearing.
Moreover, a party must make a “timely request, objection, or motion” to preserve error for appellate review. Tex. R. App. P. 33.1(a)(1). If appellant did not have the opportunity to object and make an offer of punishment evidence, he was required to present the objection and the offer of proof in a motion for a new trial. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001); Foster v. State, 80 S.W.3d 639, 641. (Tex. App.— Houston [1st Dist.] 2002, no pet.) (holding that, when the trial court precludes a defendant from presenting punishment evidence, that defendant must make his objection and offer of proof at the first opportunity, even if it is at the motion for new trial hearing.). Appellant did not file a motion for a new trial. Therefore, we find appellant has waived his right to raise the issue of denial of a punishment hearing on appeal.
We overrule appellant’s sole point of error.
Conclusion
We affirm the judgment of the trial court.
Adele Hedges
Justice
Panel consists of Justices Hedges, Nuchia, and Keyes.
Do not publish. Tex. R. App. P. 47.2(b).