Richard Nathaniel Robertson v. The State of Texas--Appeal from 27th District Court of Bell County

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State: Texas

Court: Texas Northern District Court

Docket No: 03-00-00461-CR

Case Date: 09/21/2000

Plaintiff: Charles William Mingle

Defendant: State of Texas--Appeal from 252nd District Court of Jefferson County

Preview:Charles William Mingle v. State of Texas--Appeal from
252nd District Court of Jefferson County
Opinion filed August 7, 2008
Opinion filed August 7, 2008
In The
Eleventh Court of Appeals
No. 11-07-00132-CR
CHARLES WILLIAM MINGLE, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Court Cause No. 92106
M E M O R A N D U M O P I N I O N
This is an appeal from a judgment adjudicating guilt. Charles William Mingle originally entered a plea of guilty to the
offense of injury to a child. Pursuant to the plea bargain agreement, the trial court deferred the adjudication of his guilt,
placed him on community supervision for six years, and assessed a $500 fine. At the hearing on the State=s motion to
adjudicate, appellant entered a plea of true to one of the State=s allegations. The State presented three witnesses, and
appellant presented four as well as testifying in his own behalf. At the conclusion of the hearing, the trial court found
that appellant had violated the terms and conditions of his community supervision, revoked the community supervision,
adjudicated appellant=s guilt, and imposed a sentence of confinement for fifteen years. We affirm.
We note that the hearing on the State=s motion to adjudicate was conducted prior to the June 15, 2007 effective date of
the amendment to Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2007) allowing an appeal from the
determination to adjudicate. Therefore, former Tex. Code Crim. Proc. art. 42.12, ' 5(b) (1999) and its prohibition
concerning appeals from the determination to proceed with the adjudication of guilt apply.[1] Davis v. State, 195
S.W.3d 708, 709 (Tex. Crim. App. 2006); Hargesheimer v. State, 182 S.W.3d 906, 909 (Tex. Crim. App. 2006);
Hogans v. State, 176 S.W.3d 829, 831 (Tex. Crim. App. 2005); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App.
1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992).
Appellant=s court-appointed counsel has filed a brief arguing four issues. Each issue addresses potential errors
occurring after the adjudication of guilt. Under the law applicable to this case, these issues are properly before the
court.
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In the first two issues, appellant argues that the trial court committed reversible error by failing to make a sufficient
record of the admonishments given to appellant when he exercised his right to self-representation at the beginning of
this appeal. We disagree.
The record reflects that appellant was represented by retained counsel in the trial court. The sentence was imposed in
open court on March 23, 2007. The record reflects that on April 16, 2007, the trial court admonished appellant
concerning his right to self-representation and that appellant chose to proceed pro se. On June 11, 2007, upon
appellant=s request, the trial court appointed counsel to represent appellant in this appeal. The reporter=s record was
filed in this court on August 10, 2007. Appellant=s brief B prepared by his court-appointed counsel B was filed in this
court on April 17, 2008.
The record before this court does not support appellant=s contentions. The record reflects that the trial court
admonished appellant. Assuming without deciding that the record was in some way not properly developed, as
appellant claims, we note that any possible error would not be reversible. Tex. R. App. P. 44.2. The record
affirmatively reflects that appellant has had the active representation of counsel for the majority of the time that his
appeal has been pending. Counsel has diligently researched, prepared, and filed a brief on his behalf. We determine
beyond a reasonable doubt that appellant has not been harmed. The first two issues are overruled.
In his next two issues, appellant contends that the trial court erred by proceeding to the punishment phase of the
hearing immediately after adjudicating appellant=s guilt. Appellant argues that he was not able to present mitigating
evidence.
Appellant correctly points out that defendants are entitled to a hearing on punishment separate from the hearing on the
decision to adjudicate. However, this is a statutory right conveyed under Article 42.12, section 5(b) and can be waived
absent a timely objection or complaint in a motion for new trial. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim.
App. 2001); Issa v. State, 826 S.W.2d 159, 160-61 (Tex. Crim. App. 1992). Appellant did not object when the trial
court adjudicated guilt and then proceeded into the punishment phase of the hearing. Likewise, appellant raised no
complaint about the procedure in the trial court in his eight-page motion for new trial. Therefore, appellant has failed
to preserve his complaint for appellate review. Tex. R. App. P. 33.1. The third and fourth issues are overruled.
The judgment of the trial court is affirmed.
PER CURIAM
August 7, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Former Article 42.12, section 5(b) provided:
On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may
be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the
determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may
be taken from this determination (emphasis added).
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