Leo May v. The State of Texas--Appeal from County Court of Milam County

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State: Texas

Court: Texas Northern District Court

Docket No: 03-05-00577-CR

Case Date: 12/05/2006

Plaintiff: THE STATE OF TEXAS

Defendant: ELIJAH HUFF--Appeal from 117th District Court of Nueces County

Preview:Robert Eugene Stricker v. State of Texas--Appeal from
290th Judicial District Court of Bexar County
No. 04-01-00474-CR
Robert Eugene STRICKER,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 93-CR-2448-W
Honorable Sharon MacRae, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Alma L. L pez, Justice
Sarah B. Duncan, Justice
Karen Angelini, Justice
Delivered and Filed: September 30, 2002
AFFIRMED
Robert Eugene Stricker pleaded no contest to burglary and was placed on deferred adjudication probation for a term of
eight years and assessed a $1000 fine. Arguing that Stricker had violated three conditions of his probation, the State
filed a motion to revoke his probation. At the hearing on the motion, Stricker pleaded "true" to violating two conditions
of probation, and the court found that he had violated a third condition. The court granted the State's motion, found
Stricker guilty of the original offense, and sentenced him to eight years in prison. On appeal, Stricker argues that the
trial court erred by denying him a separate punishment hearing after adjudicating him guilty. Additionally, Stricker
maintains that the trial court violated the Fifth and Fourteenth Amendments to the United States Constitution by
prejudging and predetermining his sentence without considering mitigating factors and the entire range of punishment.
We hold that Stricker failed to preserve his complaints for our review; thus, we affirm the trial court's judgement.
SEPARATE PUNISHMENT HEARING
In his first issue, Stricker asserts that the trial court denied him a separate punishment hearing after adjudicating him
guilty. After a trial court revokes a defendant's deferred adjudication probation, the court must conduct a punishment
hearing and provide the defendant with an opportunity to present mitigating evidence. Issa v. State, 826 S.W.2d 159,
161 (Tex. Crim. App. 1992); Brunson v. State, 995 S.W.2d 709, 713 (Tex. App.--San Antonio, 1999, no pet.). If the
defendant is denied a separate punishment hearing, he must make a timely objection to preserve error, or any error is
waived. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001); Issa, 826 S.W.2d at 161. In rare cases where a
defendant is denied any opportunity to present evidence or object because the court adjudicates guilt and pronounces
defendant's sentence simultaneously, the defendant may preserve error by timely raising the issue in a motion for new
trial. Vidaurri, 49 S.W.3d at 886 & n.5; Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999); Issa, 826
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S.W.2d at 161; Brunson, 995 S.W.2d at 713.
Here, the trial court adjudicated Stricker guilty because he violated three conditions of his probation. Immediately
thereafter, the court asked Stricker if he had anything to say regarding sentencing. Defense counsel argued for a lighter
sentence, while the State argued for a longer term of confinement. Stricker did not testify or present any mitigating
evidence. At no time during the proceeding or in a motion for new trial did Stricker assert that he was denied a
separate hearing on punishment. Therefore, the trial court was never presented with the issue of a separate punishment
hearing. Because Stricker had the opportunity to raise the issue of a separate punishment hearing at the trial level, but
instead raises this issue for the first time on appeal, he has preserved nothing for our review. See Vidaurri, 49 S.W.3d
at 886; see also Issa, 826 S.W.2d at 161.
CONSTITUTIONAL ARGUMENT
In his second issue, Stricker asserts the trial court violated his Fifth and Fourteenth Amendment due process rights by
prejudging and predetermining his sentence without considering mitigating factors and the entire range of punishment.
However, Stricker did not raise these objections in the trial court. Almost every right, constitutional or statutory, may
be waived by failure to object or request proper relief. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App.
1995); Little v. State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988); see generally Tex. R. App. P. 33.1. Accordingly,
we hold that Stricker has failed to preserve this issue for our review.
CONCLUSION
We affirm the trial court's judgment.
Karen Angelini, Justice
DO NOT PUBLISH
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