Negal Andre Johnson v. State of Texas ( 2010 )

Opinion filed September 9, 2010
In The
Eleventh Court of Appeals
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Nos. 11-09-00237-CR & 11-09-00238-CR
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NEGAL ANDRE JOHNSON, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause Nos. CR19042 & CR19297
MEMORANDUM OPINION
In Cause No. 11-09-00237-CR, Negal Andre Johnson pleaded no contest to the offense of
assault family violence – enhanced. Pursuant to a plea bargain agreement, the trial court
convicted appellant and assessed punishment at ten years confinement and a $750 fine. The trial
court suspended the imposition of the confinement portion of the sentence and placed appellant
on community supervision for five years. In Cause No. 11-09-00238-CR, appellant entered a
plea of no contest to the offense of delivery of a controlled substance in a drug-free zone.
Pursuant to a plea bargain agreement, the trial court deferred the adjudication of guilt and placed
appellant on community supervision for ten years. The State filed a motion to revoke appellant’s
community supervision in Cause No. 11-09-00237-CR and to adjudicate guilt in Cause No. 11-
09-00238-CR, alleging that appellant violated the terms and conditions of his community
supervision in several ways including using marihuana. In both cause numbers, appellant
entered a plea of true only to the allegations of violating the terms and conditions of his
community supervision by using marihuana. After a hearing, the trial court found that appellant
violated the terms and conditions of his community supervision in both cause numbers. The trial
court revoked appellant’s community supervision in Cause No. 11-09-00237-CR, adjudicated his
guilt in Cause No. 11-09-00238-CR, and sentenced him to ten years confinement in each case.
We affirm.
In both cause numbers, appellant asserts two issues on appeal. In his first issue, appellant
contends that he was denied a separate punishment hearing following the trial court’s
determination to adjudicate guilt in Cause No. 11-09-00238-CR, citing Issa v. State, 826 S.W.2d
159 (Tex. Crim. App. 1992), as authority. In Issa, the court held that a defendant is entitled to a
punishment hearing after the adjudication of guilt and that the trial court must allow the
defendant the opportunity to present evidence. Issa, 826 S.W.2d at 161.
At the hearing, the State asked, ―Just to clarify, we are proceeding in a unified fashion in
this hearing?‖ The trial court responded, ―Yes.‖ Appellant did not object to the unified
proceedings. The State called as a witness Karie Smith, the mother of appellant’s child and the
victim of the underlying assault charge from Cause No. 11-09-00237-CR. Smith testified that
appellant does not pay her child support, and appellant objected to relevance. The State
responded, ―This is a punishment hearing as well.‖ Appellant did not raise any further objection
to Smith’s testimony on child support.
At the close of the State’s evidence, appellant called witnesses on his behalf. Appellant
presented evidence that he would benefit from drug treatment and that the trial court should
sentence appellant to a ―SAFTP treatment facility.‖ Appellant testified that he could
successfully complete a ―SAFTP program‖ and that he could also comply with community
supervision after release from the program.
Issa does not stand for the absolute right to a separate punishment hearing. Hardeman v.
State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999). Rather, the trial court is required to provide
the defendant an opportunity to present evidence in mitigation of punishment if not afforded
during adjudication. Hardeman, 1 S.W.3d at 691. The record shows that appellant was given an
opportunity to present mitigating evidence and that appellant did present such evidence. It is
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immaterial that the opportunity to present evidence came before the actual words of adjudication.
Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999).
Moreover, in Issa the court found that the defendant preserved error by filing a motion
for new trial after not having an opportunity to object at the hearing. Issa, 826 S.W.2d at 161.
In the present cases, the trial court gave appellant an opportunity to object by asking if there was
a reason why sentence should not be pronounced. Hardeman, 1 S.W.3d at 690. Appellant did
not object at this time. Appellant did not raise the issue in a motion for new trial. Appellant has
not preserved this complaint for appeal. Hardeman, 1 S.W.3d at 690. We overrule appellant’s
first issue on appeal.
In his second issue on appeal, appellant complains that the trial court erred in revoking
his community supervision in Cause No. 11-09-00237-CR because ―such revocation subserved
neither the ends of justice nor the best interests of the public or [appellant].‖ Appellant presented
evidence that he has a drug problem and would benefit from treatment. Appellant specifically
argues that the trial court abused its discretion in sentencing him to confinement because the
evidence supported a finding of drug treatment and continued community supervision.
Appellant pleaded true to the allegation of using marihuana. A plea of true to even one
allegation in the motion to revoke is sufficient to support a judgment revoking community
supervision. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979); Jones v. State, 112
S.W.3d 266, 268 (Tex. App.—Corpus Christi 2003, no pet.). At a revocation hearing, the trial
court is the sole judge of the credibility of the witnesses and the weight to be given their
testimony. Jones, 112 S.W.3d at 268. The trial court heard evidence and assessed punishment
within the applicable punishment range. Appellant has not shown that the trial court abused its
discretion in revoking his community supervision and assessing punishment. We overrule
appellant’s second issue on appeal.
The judgments of the trial court are affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
September 9, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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