CORDERO JERMAINE RIDLEY v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Maloney

Cordero Jermaine Ridley appeals the trial court's adjudication of his guilt.   In two points of error, appellant complains that the trial court erred in (1) denying him his right to testify and (2) not allowing him to present mitigating evidence after adjudicating him.   We affirm the trial court's judgment.

Appellant entered a negotiated plea of guilty to two charges of burglary of a habitation.   The trial court followed the plea bargain agreement, found the evidence substantiated his plea of guilty, deferred finding him guilty, and placed him on community supervision for five years.   Five months after beginning his community service, the State moved to adjudicate appellant.

In two points of error, appellant argues the trial court erred in denying his right to testify or to present mitigating evidence in punishment.   He contends that the trial court heard no evidence explaining why he failed to report or to mitigate punishment.   Consequently, the trial court's error harmed him.

The State replies that appellant failed to preserve his points of error because he did not object to these issues in the trial court nor did he raise either issue in his motion for new trial.   In the alternative, the State contends the trial court provided appellant the opportunity to be heard, but appellant did not avail himself of that opportunity.

At the hearing on the State's motion to adjudicate, the State called only one witness-the probation officer assigned to the 363rd District Court-to testify to appellant violating the terms and conditions of community supervision.   Appellant's attorney cross-examined the probation officer on each of the alleged violations.   The State called no other witnesses and rested.

The trial court questioned appellant's attorney if he would be presenting any evidence and specifically asked if appellant would testify.   The attorney replied “no.”   The trial court then inquired “no testimony at all?”   Again the attorney answered, “no.”   This prompted the trial court to ask, “are you arguing?”   Next the trial court announced, it was “so shocked by you not calling your client ․ you can go ahead.”   Appellant's attorney argued and challenged every allegation in the State's motion and the evidence supporting that allegation.   Appellant then asked to speak to the trial court and offered explanations on his conduct.   The trial court stopped appellant, adjudicated appellant, and set his punishment at ten years' confinement.

Appellant has the right to present evidence in punishment after the trial court grants the State's motion to adjudicate appellant for not complying with the terms and condition of community supervision.   See Tex.R.App. P. 33.1 (a)(1)(A);  Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App.2001);  Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App.1992).   To preserve a complaint for appellate review, appellant must have (1) objected, (2) made a timely request to present evidence, or (3) raised his complaint in his motion for new trial to make the trial court aware of any error so that it had an opportunity to correct that error.  Tex.R.App. P. 33.1 (a)(1)(A);  Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App.2005).

Here, appellant neither objected to his being denied his right to testify nor offered evidence in mitigation of punishment in the trial court.   His motion for new trial did not identity what evidence appellant would have presented to mitigate his punishment or that the evidences would have altered the trial judge's opinion.   His motion only alleged “the verdict is contrary to the law and the evidence.”   For the first time on appeal, appellant complains of the trial court's denying his rights.   We conclude appellant preserved no error for this Court to review.

We affirm the trial court's judgment.

FRANCES MALONEY JUSTICE, ASSIGNED