11th Court of Appeals

Eastland, Texas

Opinion

Victor Bastardo

            Appellant

Vs.                  No. 11-03-00398-CR -- Appeal from Brown County

State of Texas

            Appellee

            Victor Bastardo was convicted on October 17, 1997, of possession of a controlled substance. The trial court deferred adjudication of guilt, placed appellant on community supervision for 5 years, and assessed a $1,000 fine. On October 8, 2002, the State filed a motion to adjudicate guilt alleging that appellant violated the terms and conditions of his deferred adjudication community supervision. After a hearing on the motion, the trial court found that appellant violated the terms and conditions of his community supervision, revoked his community supervision, adjudicated his guilt, and sentenced him to confinement for three years. We reverse and remand.

            In his sole point of error, appellant argues that the trial court erred in assessing punishment without first conducting a separate hearing on punishment. The trial court heard evidence on the State’s motion to adjudicate on October 21, 2003. At the conclusion of the hearing, the trial court recessed to consider the evidence. The trial court reconvened on October 23, at which time the trial court found that appellant had violated the terms and conditions of his community supervision. The trial court adjudicated appellant guilty and then stated, “having found [appellant] guilty at this point, I do assess the punishment in the case. That punishment I do place at three years confinement.” Appellant objected, stating:

            Your honor, with all due respect, while I didn’t have extra case law, I’m - - I just don’t see any basis for the Court to have made the finding that the Court has made. I think the punishment that the Court has chosen to assess is improper, and we would request that the Court permit us to reset this hearing for another date to conduct a punishment hearing in the case.

            The State argues that appellant has waived appellate review because his objection only addresses the sufficiency of the evidence. The right to a hearing on punishment after an adjudication of guilt is a right that can be waived. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Cr.App. 2001). However, we find that appellant’s objection was sufficient to inform the trial court of his complaint. TEX.R.APP.P. 33.1(a). Appellant has preserved his complaint for review.

            The trial court need only afford a defendant an opportunity to present evidence in mitigation of punishment at sometime during the proceedings, either before the adjudication or after. Hardeman v. State, 1 S.W.3d 689 (Tex.Cr.App. 1999); Pearson v. State, 994 S.W.2d 176 (Tex.Cr.App. 1999). The record does not show that appellant had an opportunity to present mitigation evidence at any time during the proceedings. Although the trial court heard evidence during the hearing on adjudication of guilt, the record does not indicate that appellant presented any mitigation evidence at that time. Appellant’s sole point of error is sustained.

            The judgment of the trial court is reversed, and the cause is remanded for a hearing on punishment.

                                                                                                TERRY McCALL

                                                                                                JUSTICE

May 26, 2005

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.