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Terry Wayne HARDEMAN, Appellant, v. The STATE of Texas, Appellee.
OPINION
Appellant, Terry Wayne Hardeman, was charged by information with the delivery of a controlled substance, namely cocaine, weighing less than twenty-eight grams. See Tex. Health & Safety Code Ann. § 481.112 (Vernon 1992). Appellant pled guilty without an agreed punishment recommendation from the State, and stipulated that two enhancement allegations were true. The trial court deferred a finding of guilt and placed him on ten years probation. The following year the State filed a motion to adjudicate appellant's guilt, alleging he had violated the conditions of his probation. After a hearing on the State's motion, the trial court found appellant guilty and assessed punishment at confinement for life in the Texas Department of Criminal Justice, Institutional Division. In four points of error, appellant contends (1) the trial court erred by imposing sentence without giving him an opportunity to present evidence in mitigation of punishment, (2) his attorney was ineffective because she did not object to the trial court's failure to conduct a separate punishment hearing before sentencing, (3) the evidence was insufficient to support the trial court's findings on the enhancement paragraphs, and (4) the trial court erred by failing to arraign appellant on the enhancement paragraphs. We reverse and remand for resentencing.
Discussion
In his first point of error, appellant argues that the trial court erred in imposing a life sentence without conducting a separate punishment hearing after finding him guilty at the motion to adjudicate guilt. He seeks reversal of his life sentence and requests a new trial as to the matter of punishment only.
Fairness dictates that a defendant be accorded an opportunity to offer evidence in mitigation of punishment after an 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. See Duhart v. State, 668 S.W.2d 384, 387 (Tex.Crim.App.1984); Castro v. State, 807 S.W.2d 417, 419 (Tex.App.-Houston [14 th Dist.] 1991, pet. ref'd). The State argues that because appellant “offered extensive [mitigating] evidence during the adjudication proceedings,” form should not be elevated over substance and his point of error should be overruled. See Gober v. State, 917 S.W.2d 501, 502 (Tex.App.-Austin 1996, no pet.). We disagree.
The Texas Court of Criminal Appeals has 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.” Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App.1992) (emphasis added). Although the accused may waive this right by failure to object, the error can be preserved for review in a motion for new trial. See Borders v. State, 846 S.W.2d 834, 836 (Tex.Crim.App.1992); Issa, 826 S.W.2d at 161. In this case, appellant failed to object and request a hearing on punishment in the trial court, as required by Tex.R.App. P. 52.1 However, he has preserved the objection in his timely filed motion for new trial. See Borders, 846 S.W.2d at 836; Issa, 826 S.W.2d at 161. Having found that he properly preserved error, we find that appellant was sentenced without being given the opportunity to present evidence in mitigation prior to sentencing. Accordingly, point of error one is sustained.
Having provided appellant with the relief that he seeks, we do not need to address his remaining points of error in which he seeks the same relief.2
The judgment of the trial court, as to punishment only, is reversed, and this cause is remanded for resentencing in accordance with the dictates of the Court of Criminal Appeals.
FOOTNOTES
1. Rule 52 is now Rule 33.1 under the new Rules of Appellate Procedure, promulgated this year and effective September 1, 1997.
2. As in his first point of error, in his remaining points of error, appellant asks us to reverse the trial court's sentence and order a new trial only on the matter of punishment.
SEARS, Justice.
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Docket No: No. 14-96-00221-CR.
Decided: June 25, 1998
Court: Court of Appeals of Texas,Houston (14th Dist.).
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