In the Interest of T.L.B. a Child--Appeal from County Court at Law No 2 of Potter County

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State: Texas

Court: Texas Northern District Court

Docket No: 07-07-00349-CV

Case Date: 12/17/2008

Plaintiff: UNION GAS CORP.

Defendant: PRISCILLA DORNBURG, ET AL.--Appeal from 267th District Court of Victoria County

Preview:Jacob Kluesner v. The State of Texas--Appeal from
144th Judicial District Court of Bexar County
99-00850 Kluesner v State of Texas.wpd No. 04-99-00850-CR
Jacob KLUESNER,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-0122
Honorable Mark Luitjen, Judge Presiding
Opinion by: Catherine Stone, Justice
Sitting: Catherine Stone, Justice
Sarah B. Duncan, Justice
Karen Angelini, Justice
Delivered and Filed: June 28, 2000
AFFIRMED
Jacob Kluesner appeals his conviction for theft from a person. In a single issue, he complains the trial court erred in
imposing sentence without affording him an opportunity to be heard on the issue of punishment. Because we hold
Kluesner failed to preserve error, we affirm the judgment of the trial court.
Factual and Procedural Background
Kluesner pled no contest to his indictment for theft from a person. Adhering to the terms of a plea bargain, the court
placed Kluesner on a two-year deferred adjudication. Later, the State filed a motion to enter adjudication of guilt and
revocation of probation alleging Kluesner violated several conditions of his probation. At the revocation hearing,
Kluesner pled true to the violations and the trial court accordingly entered a guilty finding and imposed a two-year
period of confinement. Kluesner now complains the trial court neither afforded him an opportunity to offer mitigation
evidence on the issue of punishment nor conducted a separate punishment hearing.
Discussion
When a trial court determines that a defendant violated his probation and adjudicates a previously deferred finding of
guilt, the defendant is entitled to present evidence at a punishment hearing. Issa v. State, 826 S.W.2d 159, 161 (Tex.
Crim. App. 1992). Failure by the trial court to conduct such a hearing constitutes error. Id. When a defendant is
deprived of the opportunity to contemporaneously object to the simultaneous pronouncement of guilt and sentencing,
he may preserve error through objection in a motion for new trial. Id.
Kluesner relies on Issa in support of his contention that the trial court erred in failing to receive punishment evidence
from him prior to imposing his sentence. We distinguish the holding in Issa from the facts in Kluesner's case. Unlike
the situation in Issa, the court allowed Kluesner an opportunity to offer his mitigation evidence at the hearing -
Kluesner failed to take advantage of the opportunity. The following record excerpt demonstrates Kluesner's missed
opportunity:
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THE COURT: . . . In cause number 98-CR-0122, having found that you have violated conditions of your probation
and violated conditions of your deferred adjudication, if I hadn't already done it, I hereby find you guilty of the offense
of theft from a person.
Is there any legal reason why the Defendant cannot be sentenced in that case?
DEFENSE COUNSEL: No, Judge.
At this point, Kluesner affirmatively declined his opportunity to object and offer punishment evidence prior to
sentencing. See Bilbrey v. State, 851 S.W.2d 334, 336 (Tex. App.-Dallas 1993, no pet.)(holding defendant failed to
preserve error where defendant affirmatively declined opportunity to object prior to sentencing). Once the trial court
imposed the two-year sentence Kluesner's counsel indicated that the State had planned to recommend a one-year
sentence. While counsel's comments clearly reflect dissatisfaction with the longer sentence, no specific objection was
raised regarding the failure to conduct an evidentiary hearing on punishment. Further, without a motion for new trial,
there is no indication of what punishment evidence Kluesner intended to offer.
As noted, Kluesner failed to file a motion for new trial. Instead, he chose to raise the issue for the first time on appeal.
From the foregoing facts, we conclude Kluesner failed to preserve error of which he complains. See Bilbrey, 851
S.W.2d at 336 (holding defendant failed to preserve complaint regarding trial court's failure to conduct punishment
hearing following adjudication of previous guilty finding where defendant neither objected nor filed motion for new
trial but raised issue for first time on appeal). Accordingly, we overrule Kluesner's sole issue on appeal and affirm the
trial court's judgment.
Catherine Stone, Justice
DO NOT PUBLISH
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