Henry Lee Carey v. the State of Texas ( 2023 )

AFFIRMED and Opinion Filed May 16, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00565-CR
No. 05-21-00566-CR
HENRY LEE CAREY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause Nos. F-1910416-H & F-1955133-H
MEMORANDUM OPINION
Before Justices Reichek, Goldstein, and Kennedy1
Opinion by Justice Goldstein
Appellant Henry Lee Carey appeals the trial court’s judgments adjudicating
guilt for aggravated robbery with a deadly weapon. See TEX. PENAL CODE ANN.
§ 29.03. In his sole issue, appellant contends that the trial court erred by failing to
hold a separate hearing on punishment. We affirm in this memorandum opinion.
TEX. R. APP. P. 47.2(b).
1
The Honorable Justice David J. Schenck was originally a member of this panel. The Honorable Justice
Kennedy succeeded Justice Schenck when his term expired on December 31, 2022. Justice Kennedy has
reviewed the briefs and the record.
In Cause No. F-1910416-H, appellant was indicted for aggravated robbery
with a deadly weapon alleged to have occurred in May 2019. In Cause No. F-19-
55133-H, appellant was indicted for aggravated robbery with a deadly weapon
alleged to have occurred in September 2019. Pursuant to a plea-bargain agreement
with the State, appellant made an open plea of guilty to both charges. In each case,
the trial court entered an order of deferred adjudication community supervision for
ten years. In April 2021, the State filed motions to revoke in each cause, alleging
that appellant had violated the terms of his community supervision. At a hearing on
June 7, 2021, appellant pleaded true to the allegations in the State’s motion. The trial
court heard evidence regarding the alleged violations. After the parties rested and
closed the evidence, the trial court found the allegations true and sentenced appellant
to fifteen years’ confinement in each cause, with the sentences to run concurrently.
In his sole issue, appellant complains that the trial court erred by failing to
conduct a separate hearing on punishment. The State argues that this issue was not
preserved for appeal.2 We agree with the State. A criminal defendant whose guilt
has been adjudicated has a right to a separate punishment hearing. See TEX. CODE
CRIM. PROC. ANN. art. 42A.110(a); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim.
2
The State alternatively argues that even if error had been preserved, appellant was not entitled to a
separate punishment hearing because he presented mitigation evidence during the June 7, 2021 hearing. See
Duhart v. State, 668 S.W.2d 384, 387 (Tex. Crim. App. 1984) (“Fairness would dictate that a defendant be
accorded an opportunity to offer appropriate evidence in mitigation of punishment after the revocation of
“probation” and the adjudication of guilt and before the assessment of punishment if such evidence has not
already been elicited during the proceedings, particularly if the defendant requests the opportunity.”
(emphasis added)). Given our disposition of this case on error-preservation grounds, we need not address
this alternative argument. See TEX. R. APP. P. 47.1.
–2–
App. 1992) (“[W]hen a trial court finds that an accused has committed a violation as
alleged by the State and adjudicates a previously deferred finding of guilt, the court
must then conduct a second phase to determine punishment.”). However, the
entitlement to a separate punishment hearing “is a statutory right which can be
waived.” Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001). In order to
preserve the issue for appeal, the defendant must request a separate punishment
hearing, object to the trial court’s failure to hold a separate punishment hearing, or,
if the defendant had no opportunity to object, file a motion for new trial. See id. at
885–86 (citing TEX. R. APP. P. 21.2 & 33.1).
Here, appellant neither objected to the trial court’s failure to hold a separate
punishment hearing nor filed a motion for new trial after his guilt was adjudicated.
We therefore conclude appellant failed to preserve this issue for appeal.
We overrule appellant’s sole issue and affirm the trial court’s judgments.
/Bonnie Lee Goldstein//
210565f.u05 BONNIE LEE GOLDSTEIN
210566f.u05 JUSTICE
Do Not Publish
Tex. R. App. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
HENRY LEE CAREY, Appellant On Appeal from the Criminal District
Court No. 1, Dallas County, Texas
No. 05-21-00565-CR V. Trial Court Cause No. F-1955133-H.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Goldstein. Justices Reichek and
Kennedy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 16th day of May, 2023.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
HENRY LEE CAREY, Appellant On Appeal from the Criminal District
Court No. 1, Dallas County, Texas
No. 05-21-00566-CR V. Trial Court Cause No. F-1910416-H.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Goldstein. Justices Reichek and
Kennedy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 16th day of May, 2023.
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