## IN THE COU RT O F CR IM IN AL AP PE ALS OF TE XAS

NO. P D-1508-08

DANNYWAYNE G RAMM ER, Appellan t

v . THE S TATE O F TEXAS
ON AP P ELLA NT ’S P ETIT ION F OR DI SCRETIO NA RYRE VI EW F RO M THE TEN TH CO UR T OF AP P EA LS

JOH NSO N CO UN TY
H ERV EY , J. , de liv e r e d t he opi nio n of t he Co ur t i n whic h K ELLER , P .J., M E YE RS , W OM ACK , J OHN S ON , K EASLER , and C OCH RAN , JJ., jo ine d. P RI CE , and H O L C O MB , JJ., concurre d . O P I N I O N Pursuant to a plea- barg ain with the Sta t e, appellant wa s place d on defe rre d-adjudication community

supervision (“pr obation”) f or ten y ear s after pleading g uilty to a nine-c ount indictment

c ha rg inghim wi th t he of fe ns e s o f a g g ra

va te d s e xu a l a s sa

ult (t hr e e c ounts ) a

nd ind e c e nc y

(s ix co un ts)

a g a ins t an e le ve n- y e a r- old g ir l. Ac on dit ion

of a pp e lla nt’s pro bat ion r e qu ir e d h im t o p a y $2 50 in

c ourt c os ts w ith in 1 20 da

y s af te r be ing pla c e d on pro ba tio n, a nd a no the r c on dit ion

re qu ir e d h im t o “avoid a ssociation wi t h persons having c riminal rec ords and having disre putable or ha rmfulGrammer-- 2

1 Se e Gram me r v . S

tat e , 268 S.W .3d 774, 779-80 (Te x .App.–Waco 2008).

2 Ap pe lla nt h a s ma de no c la im tha t he ha d n o o pp or tun ity to p re se nt c ha

ra c te r w itn e sse s. char acte r.” The trial court ( not the same judge w ho had plac ed appe llant on probation) later found that a pp e lla nt v iol a te d th e se tw o c on dit ion s a nd se nte nc e d h im t o le ng thy c on c ur re nt p ri so n te rm s (6 0 y e a rs on

the thr e e a g g ra

va te d s e xua l- a ssault cou nts a nd 20 y e a rs on

the six in de c e nc y

c ounts ) immediately

afte r adjudicating his g uilt. W e exerc ised our discre tionary authority to re v iew the Waco Court of Appe als’s dec ision that the trial court di d not have to hold “a se parate punishment hear ing” befor e sente ncing appella n t

. Finding that appellant ha d the opportunity to, and did, 1
pr e se nt p un ish me nt e vid e nc e a t th e a dju dic a tio n h e a ri ng , w e wi ll a ff ir m. The re cord f

rom the adjudication hearing ref lects that appe llant’s lawy er indicated that he had no witnesses w hen the tria l court aske d the witnesses to come f orwa rd for purposes of invoking the rule be fore the hea

ring beg an. [TRI AL CO UR T]: D oe s State have a ny wi tne sse s? [S TATE]: This is the State’s witness, Your Honor. [TRI AL CO UR T]: D oe s D e fe ns e have a ny wi tne sse s? [DEFENSE]: Your Honor, we may have w itnesses in terms of cha rac ter witnesse s 2 but none fa ct base d as fa

r as the violation. I d o n ’t k n o w if y ou want to invoke the ru le fo r t he m. * * * [TR I AL COURT]: The rule has bee n invoked so any witnesses y ou have tha t are g oing to testify

in any part of this hea

ring need to c ome forw ard a nd be sworn in. [DEFENSE]: W e don’t have any witnesses, Your H onor. The re cord a lso refle cts that appe llant’s ten-y ear probationar

y p er i o d beg an on January 6, 20 06 . O n Jan

ua ry 16 a pp e lla nt b e g a n s e rv ing18 0 d a y s in j a il a s a no the r c on dit ion

of his thGrammer-- 3

3 Ap pe lla nt t e sti fi e d th a t he wa s g ive n ten da y s (f ro m J a nu a ry 6 to Janu a ry 16 ) “t o g e t [hi s]

th th business arr ang ements in ord er ” b ef o re he wa s to beg in serving the 180 day s in jail. The rec ord ref lects that he did not pay

the $250 in court c osts during this per iod of time. probation. Whil e in jail serving this time, appellant beg an an association with Kristi Turner , who

3 was inca rce rate d in the same jail. On May 11 Turner

was c onvicted of the state-jail-f elony offe nses th of poss ession of a forg ed ins trument and of fra udulent use or possession of identify ing inf ormation and plac ed on probation for five y ear s. Turner was re lease d from jail at about this time. Appellant wa s relea sed fr om jail about two months later on J uly 16

. Appellant’s pr obation th office r (F riedmann) testified that appe llant told her during their first mee ting on July 19 that he th

“ wa nte d to da te a

wo man [Tu rn e r] wh o ha d a ba d c he c k c ha rg e .” F ri e dma

nn te sti fi e d th a t sh e tol d appellant that he could date Tur ner be cause appellant “ prese nted the information along the lines that [Tu rn e r] w a s d on e wi th h e r t ime , it wa s ju st a ba d c he c k, a nd

the re wa s n oth ingfu

rt he r g oin g on

wi th he r c a se .” Ap pe lla

nt d id n ot i nf

or m F ri e dma

nn a t thi s ti me , o r at any

oth e r t ime , th a t T ur

ne r w a s a convicted felon who w as on probation. Friedma nn testified that she would c onsider a pe rson to have

a cr iminal recor d if that person “ had a pr obation or had be en convic ted of a hot chec k case .” Fr iedmann also testified tha t she would not consider a person to ha

ve a criminal re cord if that person “had just g one to jail

. . . an d m ay b e hadn’ t been a djudicated g uilty of any thing, ha d just got

arr ested.” Q. [S TATE]: Tell the Court, if y ou would, when the f irst time y ou beca

me awa re of Mr. Gra mmer see ing this woman, K risti Turner. A. [FRI EDMANN]: On J uly 19, 2006 was the f

irst report that I

took on him after he was re lease d from jail, a

nd he mentioned he had wa nted to date a

woman who ha d a bad c heck c harg e. Q. Okay . Now, ac cording to the probation pape rs which the Court has take n judicialGrammer-- 4

no tic e of , th is s pe c if

ic or de r w ou ld s a y

y ou ’r e su pp os e d to a vo id a ssoc ia tio ns wi th persons who have criminal rec ords and those of disreputable or harmfu l ch ara cter ; is tha t c or re c t? A. Yes, sir. Q. Okay . Now, if somebody , as an e x ample, if somebody had a pr ob at i o n o r had been c onvicted of a

hot chec k case , would that be a c riminal rec ord? A. Yes, sir. Q. Okay . I f s o m eb o d y had just g one to jail, for instanc e, and ma y be hadn’ t been a dju dic a te d g uil ty

of a ny thi ng, ha d ju st g ot a

rr e ste d, wo uld

y ou c on sid e r t

ha t a criminal re cord? A. No, sir, not if they

had not bee n convicted. Q. Okay . So when Mr. Gr ammer w ent in and basica lly told y ou, “He y , I ’m thinking a bo ut d a tin g thi s g ir l or

I ’m da tin g thi s g ir l, i s it

ok a y ? ” , w ha t di d h e le a d y ou to believe w as her

criminal situation? A. He pr e se nte d the inf

or ma tio n alo ng the lin e s tha t sh e wa s d on e wi th h e r t ime , it was just a bad c heck, a

nd there was nothing further g oing on w ith her ca se. Q. Did he indicate to y ou at that time that she wa s a convic ted fe lon? A. No, sir. Q

. D i d h e i n d i c a t e t o yo u t h a t s h e w a s o n f e l o n y p r o b a t i o n o u to f

J o h n s o n C o u n t y? A. No, sir. Q. Th is w ou ld h a ve be e n in [sic ] July 19 of ‘0 6; i s th a t c or

re c t? th A. That’s c orre ct, sir. Q. Ok a y . A ll r ig ht. So h e did n’ t sa y the se thi ng s to y ou . Wh a t di d y ou sa y to h im a bo ut w he the r i t w a s o ka

y or no t to do thi s? A. I told him–t hat’s why

Ifurther questioned him and to l d h i m , okay , if there ’s no fu rt he r c ha rg e s, the re ’s no fu

rt he r a ny thi ng g oin g on wi th the c a se , the n that w ou ld be fine at that time to date her

.Grammer-- 5

Fr iedmann testified that she discovere d that appellant and Turner wer e living tog ether

when she visited appellant’ s residenc e on Aug ust 2 . Fr iedmann also lear ned during this home visit that nd
Turn e r w a s a

c on vic te d f

e lon on pr ob a tio n. F ri e dma

nn te sti fi e d that app ell ant w a s v iol a tin g his probation by

living with Turne r. She also testified t hat, i n addition to not informing her that Turner

was a convicted f

elon, appe llant also did not inform her that he a nd Turner wer e living tog ether

. Q. [S TATE]: And did [ appellant] indicate to y ou that they wer e g oing to live tog ether or wh a t di d h e ind ic a te to you a bo ut w ha t th a t me a nt? A. [FRI EDMANN]: He did not indicate that they wer e living tog ether . He indicated t h at t h ey wo u l d b e d at i n g. Q. All rig ht. L et me take y ou to Aug ust 2 , 2006. Was Mr. Grammer still on nd probation at this time? A. Yes, sir. Q. Okay

. Did any

thing occur on Aug ust 2 , 2006 that eff ecte d [si c] his probation? nd A. Yes, sir. Q. An d w ha t w a s th a t? A. I conducte d a home visit to his reg istered location and Idiscovere d [Turner] was there and I

discussed with her-

- * * * Isaw he r. She stated I

had just missed him, t hat he ha d come home for lunch. And Iasked he r if she w as on proba tion. She stated she was. A n d I as k ed her w ho her office r wa s, and she state d Br y an Jenkins. At that time I knew then that she was on felony probation. * * * Q. Did [appellant] ever tell y ou that he wa s living with her? A. No, sir. Q. Di d y ou

dis c ov e r t

ha t on the ho me vis it? A. Idis c ov e re d th a t on

the da y of the ho me vis it. * * *Grammer-- 6

Q. I n fac t, in this case was that a violation of his probation? A. Yes, sir.
Fr iedmann testified that she told appellant on Aug ust 3 that he could not live with Turne r rd unless they

wer e leg ally

marrie d. She also t es t i fi ed that appellant told her on Aug ust 3 that he

rd planned to mar

ry Turner and live with her

and her children, inc luding he r 12-y ear -old daug hter. Q. [STA TE ]: Di d he e ve r i nd ic a te to you wh a t hi s p lans we re in t

he fu tur e wi th M s. Turn e r a bo ut g e tti ng marr ie d, tho se so rt s o f t hin g s? A. [FRI EDMANN]: He indica ted on Aug ust 3 that he planned to g et marrie d to her. rd Q. Okay . And did he explain to y ou what the f amily unit would look li ke? A. He e x plained that he w anted to live with her and her children a

nd for he r to be a chape ron. Q. I see. So she ha s children? A. Yes, sir. Q. An d d o y ou

kn owthe ir

a g e s? A. I know her daug hter’s a g e at the time of my repor t of violation was 12. Q. So 1 2- y e a r- old

da ug hte r; is t

ha t c or re c t? A. Yes, sir. Q. J ust curious. How old wa s the victim in thi s case he’s on pr obation for? A. 11 y ear s old, female.
F ri e dma nn te sti fi e d th a t sh e g a ve a

pp e lla nt a de a dli ne un til the end of S ept e mbe r 2 00 6 to
marry Turner and that she subsequently rec eived a letter from appe llant’s divorce lawy er stating that appellant should be divorc ed fr om his wife by then. Ba sed on Fr iedmann’s repor t that a ppellant had vio la te d h is p ro ba tio n, a

pp e lla nt w a s a rr e ste d on

Au g us t 25 . App e lla

nt p a id t he $2 50 in c ourt

c os ts thGrammer-- 7

4 This testimony

would support a finding that appellant kne w on May 11 that Turner

was on th probation. that day . He mar

ried Tur ner some ti m e after this (the r ecor d does not ref lect whe ther they

wer e marrie d befor e the e nd-of- September de adline thoug h it appear s to refle ct that appe llant’s divorce beca me final on Septembe r 20 ). th
Fr iedmann testified that she believed that appellant was an untruthful manipulator and tha t he did not appea

r to be ser ious about completing his probation. Q. [S TATE]: Okay . What kind of probationer w as he g ener ally then? A. [F RI ED MA

NN ]: I did no t bel ie ve he wa s tru thf ul. Ibe lie ve d h e wa s ma

nip ulativ e a t my first appointment with him on J uly 19

. th * * * Q. Ok a y . T he n ju st gener a lly sp e a kin g wi tho ut t

he vio la tio ns , w ha t w a s h is demea nor like? Was he –did he seem serious about probation? Did he see m like he wa s g oin g to d o it ? A. He did not appe ar se rious about completing his probation. Ap pe lla nt t e sti fi e d o n d ir e c t e xami na tio n b y the de fe ns e that he sta

rt e d a sso c ia tin g wi th Turner while t hey wer e in jail. He testified that he thoug ht Turner was in jail for “ chec ks” and tha t he did not know that Turne r “w as on probation until she wa s put on probation.” Q. [DE F EN SE]: D o y ou

re c a ll me e tin g a nd

sta rt inga re la tio ns hip wi th a

ny on e wh ile y ou we re in j a il? A. [APP EL L ANT]: Yes, sir. Q. And what was her

name? A. Kristi Turner

. Q. Okay . Were y ou awa

re at the time tha t Miss–that Ms. T urner was on probation? A. I didn’t know she wa s on probation until she was put on probation. Iknew she 4Grammer-- 8

was in jail. Imet her be fore she wa s put on probation, and then I knew she was on probation. We only g ot to corr espond by letters. Tha t’s the way

we c orre spond, and just see ea ch other ever

y now and then. Yes, sir, I knew a fter she was on probation.

* * * Q. And what did y ou understand he r to be in jail for? A. Che c ks . That’ s what she tol d me, c he c ks . I did n’ t dw e ll o n– Idid

n’ t–a ny of that, y ou kn ow , I ’v e ne ve r b e e n in tr ou ble fo r that. An d, y ou

kn ow , s he tol d me c he c ks

. Itoo k it a s c he c ks . T ha t’ s c he c ks . I do n’ t kn ow wh a t. Ap pe lla nt a lso te sti fi e d a

bo ut t he July 19 me e tin g wi th F ri e dma nn . H e te sti fi e d tha t he t old th
Fr iedmann that he me t Turner in ja il a nd that they

wer e thinking a

bout ge tting mar

ried. He testified that he told Fr iedmann that Turne r had be en in j ail for “chec ks” but that she was “done with all that.” He se e me d to c la im tha t F ri e dma nn le d h im t o b e lie ve that he c ou ld a sso c ia te wi th T ur ne r b e c a us e Turner “wa s done with her ja il tim e.” Q. [DEFENSE]: Oka

y . Did y ou have a

ny conver sation with Ms. Friedmann dur ing th e f ir s t v is it a b o u t [ T u r n e r ]? A. [APP EL L ANT]: Yes, sir. Q. And what was the na ture of that conver sation? A. Ikn e w I

ha d– y ou kn ow , I kn e w I ha d to te ll he r t

ha t I wa s se e inghe r. An d I

tol d her I had m et a g irl in jail and we ha d talked about g etting ma rried; wa s that g oing to b e a pr ob le m. Q. And what did she tell y ou? A. She tol d me –s he a sk e d me , s a id w ha t w a s sh e in ja il fo r. An d I tol d h e r c he c ks

. And she said, “ I s she done with all that? ” And I said, “y es, ma’a

m, she is.” Q. Now, let me st op y ou the re . Wh e n s he a sk e d y ou we re y ou do ne wi th a ll tha t, wh at i s [ s i c] y o u r u n d er s t an d i n g? A. I took it to mean that she w as done w ith her jail time and, y ou know, she wa s out of ja il. An d I

tol d h e r y e s. Q. Okay . What happened the n?Grammer-- 9

5 We no te that the re c or d su pp or ts a fi nd ingtha

t a pp e lla nt k ne w d ur inghis fi rs t me e tin g wi th F ri e dma nn on July 19 tha

t Turn e r w a s a

c on vic te d f

e lon on pr ob a tio n a

nd that a pp e lla nt f a ile d to th mention this t o Fr iedmann.

6 J enkins testified that he be lieved that it was September 7 when Turner told him t hat she ha d th be e n li vin g wi th a

pp e lla nt.

7 F ri e dma nn te sti fi e d th a t sh e saw a

pp e lla nt at t h e p r o b a t i o n d e p a r tme nt w ithTurn e r s ome tim e betwee n J uly

19 and Aug ust 2 . Fr iedmann also testified that appellant told her that he wa s there th nd with Turner

without mentioning that they wer e living tog ether

. A. Th e n s he sa id a s lo ng a s sh e sta y s o ut o f t ro ub le a nd do e s what she ’s su pp os e d to do , I do n’ t se e a

pr ob le m w ithit. 5 Appellant also testified tha t he and Turner be g an living tog ether on J uly 28 . He testified th that he and T urner

saw Tur ner’ s probation offic er ( J enkins) that same day , that Turner informed J enkins that she wa s living with appe llant and that J enkins did n o t “s ee a proble m with it.” Appellant also testified that he saw Fr iedmann that day (he did not answer the que stion whether he informed F riedmann the n that he and T urner wer e living tog ether ). Q. [DE F EN SE]: O ka

y . Di d y ou inf

or m [ F ri e dma

nn ] that [ Turn e r] w a s li vin g wi th y ou? A. [APPE L L ANT] : W e did n’ t st a rt liv ingtog e the r u

nti l July 28 . I ha d ta lke d to th [Friedmann], told her that we w ere dating , thinking about g etting married. [Turne r] saw he r probation officer on J uly 28 . She asked him, and he said, “I don’t see a th problem with it.” 6 Q. An d w e re y ou

wi th h e r t

ha t sa me da y sh e we nt? A. Yes, sir. Q

. I s th a t t

h e s a me d a y

y o ua ls o s a w [F r ie d ma

n n ]? A. Yes, sir. After that they schedule d our probation the same day so we c ould go the 7 s a m e d a y.Grammer-- 10

8 Jenk ins te sti fi e d th a t it

wo uld have be e n a

vio la tio n o f T ur

ne r’ s p ro ba tio n f

or he r t o a sso c ia te with someone (suc h as appe llant ) o n probation, but that he a g ree d with Frie dmann’s end- ofSe pte mbe r d e a dli ne fo r T ur ne r t o ma rr y a pp e lla nt. Q. Did y ou inform [Friedmann] on y our next appointment to see her? A. I think she came to the jail to see me. I was working at the jail, you know, in the maintenanc e depa

rtment. Ithink she–the next one s he ca me to the jail and visited me, “He y , how y ou doing? Every thing okay ? ” “Ye ah.” And that was it. W e didn’t ta lk a bo ut a ny thi ng . Sh e jus t w a nte d to ma ke e y e c on ta c t. Appellant also testified tha t he could not marr y Turner until h is divorce wa s final and that
F ri e dma nn a nd Turn e r’ s pr ob a tio n of fi c e r (Je nk ins ) g a ve the m un til the e nd of Se pte mbe r 2 00 6 to
g et marrie d, but that he was a rre sted on Aug ust 25

. Appellant also testified a bout the eff

orts he th 8 made, pr ior to his arre st on Aug ust 25 , t o p ay t h e $250 in court costs. He seeme d to claim that th
F ri e dma nn le d h im t o b e lie ve that hi s o bli g a tion to pay th ese cos ts d id n ot b e g in u nti l hi s r e le a se fr om j a il. Q. [DEFE NS E ] : Af

t er ge tting out, I

g uess sometime in Aug ust [ sic], y ou paid that 25 0 b uc ks

. A. [APPE L L AN T]: A ft e r I g ot out Ista rt e d p a y ingmy

pr ob a tio n f

e e s. An d I

wo uld a lw a y s p a y

mor e tha n th e $6 5 I wa s su

pp os e d to pa

y . I wo uld pa

y 80 , s ome tim e s a h u n d re d , y o ukn o w. An d It o l d M s . Fr i ed m an n , Is ai d , “Y o ukn o w, I ’m p ay i n g a littl e more. I should be able to knoc k it out pretty quick.” And she said , “Y o u ’re paying ove r, that’s fine.” She said it’s oka y . And so then they arr ested me, and one o f m y v i o l a t i o n s i s I h a v e n ’ tp a i d m y c o urtc o s t s . I h a d n ’ t b e e n o u t o f j a i l b u t 4 0 d a ys when they

arr ested me, y ou know, and I ’m working as hard as I can to g et s tuff paid. * * * Q. [S TATE]: I understand, but did it say that y ou could pay 120 day s after

y ou g ot o u to f j a i l o r 1 2 0 d a ys f

r o m J a n u a r

y? A. [APPE L L AN T]: I

wa s u nd e r t

he imp re ssi on

it w a s f ro m th e tim e I g ot ou t of

ja il be c a us e Ic ou ldn ’t

ma ke a ny

mon e y wh ile Iwa s in

ja il. * * * Q. Why wer e y ou under tha t impression?Grammer-- 11

A. B eca use whe n Ihad talked to Ms. F riedm ann about my fee s, Isaid, “Where am Ion my fee s? I ’m paying more.” She said, “That’s oka y . You’re g oing to g et ca

ug ht up . Y ou ’r e g oin g to g e t c a ug ht u p s oo ne r t ha n y ou thi nk .” Yo u k

no w, fo ur mon ths , Ihad it fig ured in four

months I would be ca

ug ht up. Q. You just testified y ou thought y ou had 120 day s after y ou g ot out of jail. Where did it say that in there? A. I t do e sn ’t

say that. Appellant testi fied on cross-e x amination that he knew that Turner was plac ed on probation “somewhe re a

round” Ma

y 11 , but that he did not know that it was felony probation. Appe llant th

seeme d to admit, however , that he knew that Turner

was a convicted f

elon bef ore the y beg an living toge ther whe n he testified that he did not have his g uns in the house when the y wer e living tog ether there beca

use “she is a convicte d felon.” Q. [S TATE]: Okay . Did y ou have a ny of your g uns in the house with y ou-- A. [APP EL L ANT]: No, sir. Q. –when you wer e with Ms. Turner ? A. No, sir, not a one

. Q. Why no t? A. B eca use that wa s ag ainst her pr obation. She can’ t-- Q. Why would it be ag ainst her pr obation? A. B eca use she is a convicted felon. Oh, l et m e ex plain something. The day Isigne d my plea a g ree ment, the day

Isigne d, Ihad all my

g uns moved. Q

. O k a y. A. B eca use I didn’t know t he rule and I wanted to be safe r than sorr y . Ihave a

lot of g uns, and I

had all my

g uns moved to a fr iend’s house in Gr andview.

* * * Q. Did y ou have the g uns there a ny time she was ther e?Grammer-- 12

A. No, sir. Q. Why would that be? A. B eca use it was ag ainst her pr obation. Q. B eca use she wa s a convic ted fe lon? A. B eca use she’ s on probation. There ag ain, I don’t know the lawthat well. I knew s h e w as o n probation and she couldn’t be around g uns. I didn’t know whether I could or not until I talked to Ms. Fr iedmann, and she told me y es, y ou can ha ve y our g un s. Q. Okay . But the point is y ou said y ou didn’t have any of the g uns beca use she wa s a convic ted fe lon. A. B eca use she wa s on probation. Q. A s e c on d a g o y ou

sa id c on vic te d f

e lon . Wh ic h is it? A. She’s on probation. Ap pe lla nt a lso te sti fi e d th a t he kn e w t ha t he wa s vio la tin g his pr ob a tio n b y a sso c ia tin g wi th Turn e r e ve n if

sh e wa s o n p ro ba tio n o nly fo r h ot c he c ks

. Q. [S TATE]: All right. Now, e ven if she’ s on–say s h e wa s on misdemeanor pro b a ti o n . D o y o u u n d e r s ta n d w h a t th e N o . 3 o f y o u r te r ms a n d c o n ditions of pr ob a tio n s a y s? A. [APP EL L ANT]: Yes, sir, Ido. Q. You ca

nnot associate w ith someone with a cr iminal recor d? A. Yes, sir. Q. Cor re c t? A. Yes, sir. Q. Even if it were a

probation for

hot chec ks, that would be a c riminal rec ord, wo uld n’ t it ? A. Yes, sir.Grammer-- 13

9 Th is t e sti mony

wo uld , th e re fo re , s up po rt a fi nd ingthat a

pp e lla nt k ne w d ur inghis fi rs t me e tin g wi th F ri e dma

nn on July 19 tha t a sso c ia tin g wi th , dat in g, a nd liv ing wi th T ur ne r w a s a th violation of his probation. * * * Q. So whether

it was felony

to y our knowledg e at that time or no t , y ou knew wh e ne ve r you

we re se e inghe r o uts ide of the ja il, Ime a n, y ou

did se e he r i n th e ja il, but y ou knew whe n y ou started se eing her outside the ja il, she was convic ted of s o m et h i n g? A. Yes, sir. Q. So y ou knew she had a c onviction for a c riminal rec ord? A. Yes, sir. Q. And so eve n at that point, whether it’s a fe lony

or not, in y our own mind, y ou’ve a lrea dy violated proba tion, haven’t y ou? A. Yes, sir. 9 During closing arguments to the t rial court, the State argued that appe llant lied to Friedma nn

a bo ut T ur ne r’ s c ri min a l r e c or d a

nd that he manip ulate d the pr ob a tio n o ff ic e rs int o a llo wi ng him

to
marry Turner , but that the “long and short of it is” that appe llant violated his probation. [S TATE]: I t’s clea

r by his attitude, Mr. Grammer ’s attitude with probation that he thinks he deser

ves specia l tr eatment. Ican’ t imagine a ca se whe re a Court in J ohnson County , Texas is g oing to g ive somebody who has sex with an 11 y ear old who is 50 y ear s old himself special t re at m en t. That’s wha t he’s looking for in this case . He violated two conditions of proba tion; one of which is the money which, y ou know, he ha d th e mon e y

to pay the da

y a ft e r he wa s ar

re ste d. Whe n it be c a me imp or tant t o him, he took car e of w hat was on probation. That a bsolutely by his own admission is a violation, so he did violate probation there

. More importantly

is his association with Kristi Turner

. He’ s g oing to have the Court believe that he had no idea . This guy has bee n i n j ail all this ti me. He’ s up on the law in his own case. He understands every thing that’s g oing on about his own felony c a s e , a n d h e ’ s g o i n g t o l e a d t h i s C o u rtt o b e l i e v e h e h a d n o i d e a t h a ti tw a s a

f e l o n y. The fa ct of the ma tter is, J udg e, he w ent in, told his probation officer a li e, that it was on ly fo r ch e c ks , no big de a l, so tha t he c ou ld g e t th a t a sso c ia tio n g oin g . A nd he didGrammer-- 14

that. A nd

ba sic a lly wh a t he ’s do ne is l ive d w itha c on vic te d f

e lon , w hic h is a vio la tio n of his pr ob a tio n. An d the n tr ie d to m a nip ulate the of fi c e rs int o a llo wi ng it afte r the fac t. And may

be out of the g oodness of their hear ts the y tried to do that, but the long and short of it is, he violated his probation. The State a lso arg ued that, in a ssessing a ppellant’s sente nce, the trial court c ould consider

e vid e nc e tha

t app e lla nt wa s man ipu la tin g pr ob a tio n s o th a t he c ou ld l ive “ wi th s ome on e wi th a sma ll child.” [S TATE]: W hen the plan is to associate with someone who is a convicted fe lon and has a 12- y ear -ol d ch i l d t h at ’s going to be living in the home, it is a big deal. The argument we’ re g oing to g et is it’s not a big deal. But the Court ca n also look at the entirety of the c ase. A nd what the C o u rt ca n look at, acc ording to what is in the Cour t’ s o w n f

il e , is th a t th is ma

n p le d g u il ty to n in e c o u n ts , th r e e o f which w ere a g g ra va te d s e xua l a ssa

ult of a n 11-y ear-o ld g ir l. T he oth e r s ix co un ts w e re a ll ind e c e nc ie s w itha n 1 1- y e a r- old g ir l. Th e Court c a n c on sid e r al l of tha t, an d I thi nk that’ s what the Court sh ou ld d o. I f t his is not a dang erous man, w hy would he be c onvicted of–or why would he have pled g uilty to all these thing s? I f he’s not a dang erous man, some body that needs to be out of society , why

is he manipulating probation doing just whateve r he plans on doing and living w ith and associating with someone with a small child? Why is he doing a ll tha t? The de fense argued that appe llant’s probation “violations” are that “he me t and fe ll in love and eve ntually

marrie d someone who has a record.” The defense also argued that appe llant did not int e nti on a lly

vio la te his pr ob a tio n and th a t hi s p ro ba tio n v iol a tio n r e g a rd inghis a sso c ia tio n w ith Turner was the r esult of an innoce nt misunderstanding and F riedmann’ s fai lure to ask a ppellant more
sp e c if ic qu e sti on s. [DE F EN SE]: Was he int e nti on a lly tr y ing to vio la te his pr ob a tio n? I do n’ t th ink so a nd Ido n’ t th ink

the e vid e nc e that y ou

he a rd on the sta nd su g g e sts that. Was there a

misunderstanding betwee n what Ms. Fr iedmann may have be en asking him a nd ho w he int e rp re te d? Ab so lut e ly

. An y bo dy c ou ld have mis un de rs too d it beca use it was not a dire ct question.
I mmediately

afte r the pa

rties finished their c losing a rg um en t s , t he trial c ourt adjudica tedGrammer-- 15

10 Ap pe lla nt m a de no c la im i n his am e nd e d moti on fo r n e w tri a l th a t he ha d n o o pp or tun ity to prese nt char acte r wit nesses. Ac cording to appellant’s amended motion for ne w trial, evide nce tha t was not, but should have be en, pre sented a t t h e ad j udication hea

ring was the te stimony

of a le g al assistant (L ou Ann) to appe llant’s divorce lawy er. L ou Ann did not file an a ffidavit in support of appellant’ s amende d motion for new trial. But, ac cording to supporting a ffidavits fr om appellant’s mot he r a nd a un t, L ou An n w ou ld h a ve te sti fi e d th a t a pp e lla nt c ou ld no t ma

rr y Turn e r u nti l hi s divorce was fina l and that appe llant’s and Turne r’s probation office rs “we re oka y with this as long as the mar

riag e took place by

September 30 .” The se af fidavits from appe llant’s mother and a unt th also rec ite that appellant “ relied on L ou Ann’s re p re s en tations and also the re prese ntations of the probation off

icer s . . . that [appellant and Turne r] had permission to ge t married a nd ever y thing wo uld be ok a y a s lo ng a s th e y

we re marr ie d b y

Se pte mbe r 3 0. ” We n ote tha t the su bs tanc e of

thi s evidenc e wa s prese nted at the a djudication hear ing. appellant’ s g uilt on all nine counts and se ntence d him. Neither a ppellant nor his lawy er obje cted that appellant wa s being denied “ a sepa rate punishment hearing ” or tha t he was be ing d enied an opportunity

to present punishment evid ence. Appellant late r cla imed in a timely filed ame nded
mot ion fo r n e w tri a l, w hic h th e tr ia l c ourt de nie d in a wr itt e n or de r, that the tr ia l c ourt de nie d “ his ri g ht t o a se pa rate pu nis hme nt h e a ri ng . . . in tha t the Court did no t hea r t he ini tia l pl e a

a nd fa ile d to

c o n d u c t a p r e s e n te n c e in v e s ti g a ti o n o r a ll o w f o r th e p r e s e n tati o n o f e v id e n c e in mi ti g ation of punishment.” 10 Ap pe lla nt c la ime d o n dir e c t a

pp e a l that th e tr ia l c ourt

a bu se d it s d isc re tio n in

de nyinghim “a se parate punishment hear ing.” The court of a ppeals re jected this cla im because “[n] othing in the

rec ord i ndicates that the t rial cour t preve nted [appellant] from presenting punishment evidence ” and beca use appe llant “pre sented [punishment] evid en ce b efor e the a djudication and plainly had the opportunity

to present punishment evide nce the n.” See G rammer , 268 S.W .3d at 779-80. Appe llant cl ai m s o n d i s cr et i o n ar y

re v i ew t h at t h e c o u rt o f ap p ea l s “e rr ed i n o v er ru l i n g Ap p el l an t ’s ch al l en ge to the trial court’ s failure to hold a separ ate punishment hea ring

. . . in tha t the [t rial] Court did not hear the initial plea and f

ailed to conduc t a presentence investigation or allow for the presenta tionGrammer-- 16

11 Appellant ar g ues on di scre tionary revie w t hat t he “problem with this case is that the facts are eg reg ious” primarily

beca use his probation was revoke d for doing what his probation off icer g ave him pe rm iss ion

to do. Th e c ourt

of a pp e a ls’ ma

jor ity op ini on a lso se e ms t o h a ve a c c e pte d th is defe nsive theory

. See G rammer , 2 68 S.W. 3d a t 77 8- 79 (d isa g re e ingwi th t ri a l c ourt ’s de c isi on

to a dju dic a te a

pp e lla nt’ s g uil t un de r t

he c ir c ums tanc e s o f a

pp e lla nt “ havin g ob ta ine d p e rm iss ion to a sso c ia te wi th a

nd to m a rr y Turn e r” ); but see Gramm er , 2 68 S.W. 3d a t 78 0 ( Gr a y , J., c on c ur

ri ng in the judg ment) (a sserting that court of a ppeals’ ma

jority opinion unjust ifiably criti cized the trial court’s de cision to adjudicate a ppellant’s g uilt). The trial cour t’s decision to adjudicate a ppellant’s g uil t is no t pr e se nte d in

thi s p ro c e e din g a nd

ha s n o b e a ri ng on

whe th er the tri a l c ourt

a bu se d it s discretion in not holding “ a sepa rate punishment hearing .” We also do not believe that the facts of this case are eg reg ious. W e believe that the trial cour t c ou ld h ave reas on a

bly fo un d th a t a

pp e lla nt k ne w f ro m th e ve ry

be g inn ingthat a sso c ia tin g wi th Turner was a violation of his pro b at i on and that he w as less than hone st with Friedmann a bout Turn e r’ s cr imi na l re c or d whe n h e a sk e d F ri e dma nn fo r p e rm iss ion

to d a te Turn e r. We d isa g re e wi th any sug g estion by

appellant that, unde r such c ircumstance s, Frie dmann had a duty to ask appe llant mor e sp e c if

ic qu est io ns abo ut T ur

ne r’ s c ri min a l r e c or d. Ap pe lla nt h a d a du ty of c a nd or to Fr iedmann, and Fr iedmann had no duty to a sk the questions tha t mig ht ha ve led to the discovery

of appellant’ s lack of c andor. The trial court could also have r easona bly found that appe llant was not serious about c ompleting his probation, that he was intention al ly violating his probation by a sso c ia tin g wi th T ur

ne r, po ssi bly to g a in a c c e ss t o h e r 1 2- y e a r- old da ug hte r, a nd

that he dis ho ne stl y manipulated the pr obation sy stem to ga in Frie dm ann’s “permission” to marr y Turner . Under

the circ umstances of

this case, the tr ial court c ould rea so nably have f ound that Fr iedmann’s “per mission” for appe llant to m ar ry T u rn er by September 30 did not have the e ffe ct of c uring th appellant’ s probation violation of associa ting with Turne r. of evide nce in mitigation of punishment.” 11 We decide that the court of a ppeals did not err to reje ct appellant’s claim t hat the trial c ourt abused its discre tion in not hol ding “ a sepa rate punishment hearing .” The rec ord cle arly ref lects that the t rial court did not preve nt appellant from prese nting punishm ent evidence a nd that appellant did, in fac t, present e x tensive punishment evidenc e (e .g ., his theory that he innocently believed that he ha d p e rm iss ion

to a sso c ia te wi th a

nd to m a rr y Turn e r a nd his r easo ns fo r n ot p a y ingthe $2 50 in
court c osts within 120 day s after being place d on probation on January 6 ). Se e Ha rd

e ma n v . S tat e , th
1 S. W.3 d 6 89 , 6 91 (T e x.Cr .App . 1 99 9) (a ll tha t is re qu ir e d is that a de fe nd a nt have the op po rt un ity to present e vidence during the adjudication proce eding s and “it is immater ial that the pre sentationGrammer-- 17

12 We further

note that appe llant did not present a ny thing ne w in support of his motion for new tr ia l. of thi s e vid e nc e oc c ur

re d be fo re the a c tua l w or ds of a dju dic a tio n” ); Pe ar

so n v . S tat e , 994 S.W .2d 17 6, 17 9 (T e x.Cr .App . 199 9) (d e fe nd a nt not imp ro pe rl y se nte nc e d at a dju dic a tio n h e a ri ng be c a us e he no t on ly ha d th e op po rt un ity to, bu t di d p re se nt, punis hme nt e vid e nc e ); c om pa re Is sa v . S

tat e , 826 S.W .2d 159, 160-61 (Te x .Cr.App. 1992) (def endant preser

ved error in motion for ne w trial ra ising

tr ia l c ou rt ’s imp ro pe r a sse ssm e nt o f s ent ence imm e diate ly a ft e r a dju dic a tin g de fe nd a nt’ s g uil t without giving the def

endant a n opportunity

to object or to pre sent evidenc e). 12 The judg ment of the c ourt of appe als is affir med.

H e r

v e y , J.

Deliver ed: September

30, 2009 Pub lis h