NO. 07-02-0493 -CR NO. 07-02-0495 -CR NO. 07-02-0496 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A DECEM BER 23, 2003

______________________________ JOHN DALE HARVE Y, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE A47T H DISTRICT COURT OF POTTER COUN TY; NO. 40,280-A; 37 ,611-A; 41,935-A HONORAB LE JOHN T. FORBIS, J UDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPB ELL, JJ.
MEM ORAN DUM OP INI ON
Pursua nt to pl ea agreem ents, appellant John Dale Harvey w as granted deferred adjudication for aggravated as sault in cause num ber 40,280-A and for assault against a fam ilyme mber in caus e num ber 41,935-A. H is punishm ent w as ass essed a t ten y ears2

com munity

supervision in each cause. In causenum ber 37,611-A, appellant had been convicted of possession of a controlled substance and placed on com munity s upervision for ten years. After hearing evidence of violations of the conditions thereof, his com munity supervision was revoked and punishm ent was assessed at ten years confinem ent. By t wo points of error, appellant contends (1) the trial court erred in granting the State’s oral request to bifurcate the hearing and conduct a pun ishment hea ring following the revocation/adjudication porti on of the proceeding w ithout notice, and (2) he wa s denied due process by not

bein g allow ed apro per pun ishm ent

hea ring . B ase d up on t he r atio nale ex pr es se d h er ei n, we a ff i rm. Only the facts neces sary to disposition of appe ll ant’s points of error w ill be discussed. During the hearing on the State’s m otio ns to pr oce ed w ith a dj udic atio ns of gu ilt and to rev okecom m unit y s upe rvis ion t he p ros ecu tor ora llyrequested that

the trial co urt proceed w ith t he p unis hm ent pha se im m edia tely

following presentation of the evidence on its mo tions. Defense counse l objected based on lack of notice and also alle ged due process violat ions. The objection w as overruled and following the trial court’s ruling on the adjudications and revocation, the punishm en t phase com m enc ed. Follow ing h is convicti ons, appellant f iled m otions fo r new

tri a l in all three causes alleging his due process rights were violated because he w as not prepared for the punishm ent phase and did n ot r ece ive p rop er n otice. B y th e m otio ns, app ellan t did not alleg e w hat

evid enc e, if any, he would have pres ented during pun ishm ent had he k now n th e tr ial c our t w ould have1 Although article 37.07(g) of the Texas C ode of Criminal Proced ure requi res notice

of intent to introduce extraneousoffens es upon a defen dant’stim ely reques t, the record her ein reflects that the State did not intend to introduce an y e vidence of extraneo us offenses and that norequest was m ade by appellant. 3 im m edia tely

proceeded to the punishm ent phase following its ruling adjudicating him guilty in two of the causes and revoking his com munity s upervision in the third. Byhis two points, appellant argues the prosecutor’s oral request to “bifurcate” the proceeding, which she conceded is som ething “we n ormally don ’t do” violated his due process by de ny i ng hi m a proper punishmen t hearing. W e disagree. Article 42.12, section 5(b) of the Texas

Code of Crim inal P roc edu re p rov ides“[a ]fter a n ad j udic atio n of

guilt , all proceedi ngs, includ

ing ass essment of puni shment . . . continue as if th e a dju dication of guilt had not been deferred.” (Em phasis added). Article 42.12, section 23(a) provides “[i]f com munity s upervision is revoked after a hearing . . . the judge may proceed to dispose of the case as if there had be en no com munity s upervision . . . .” Appellant does not reference any authority and we have found none requiri ng notice to a defendant w hen the punishment phase is to com mence following the trial court’s ruling. 1
A defendant is entitled to a punishme nt hearing following theadj udic atio n of guilt or revocation of co mmu nity supervision and mus t be allowed an opportunity to prese nt evidence. Issa v. S tate 826 S.W.2d 159, 161 (Tex.Cr.A pp. 1992); see generally McNew
v. State, 608 S .W .2d 166, 174 (Tex.Cr .App. [Panel Op.] 1978) (holding that only one4

hearing is necessary to aff ord a defendant due process of law and that

once the trial court enters an adjud ication of g uilt, it can im m ediately pro ceed w ith asses sm ent of p unishm ent).
In the instant case, after the State’s

punishment

evidence was presented , defense counsel ann oun ced he h ad n o qu est ions , an d fo llow ing t he S tat e’s ann oun cem ent

tha t it wasresting, defense counsel also rested. H e did not request a conti nuance nor alleg e in the mo tions for new

trial what mitigating p unishment evidence , if any, he would have presented. Issa left no doubtthat after the adj udication orrevocation portion of a hearing, “the court must then co nduct a secon d phaseto dete rm ine punishm ent.” See Lopez v. State, 96 S.W.3d 406, 411 (Tex.App. –Austin 2002, pet. ref’d), citing Issa , 826 S.W.2d at 161. W e conclude the trial court did no t err in pr oceeding to the punishment phase of the hearing followi ng its ru ling to ad j udic ateapp ellan t gu ilty in t w o ca use s an d re voke his com munity

supervision in the third, and that appellant’ s due p rocess rights were not violated. Points of error one and tw o are overruled. Accordingly, the j udgme nts of the trial court are affirm ed.
Don H. Rea vis Justice Do not publish.5