Williams, Gabriel Marketh ( 2008 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-69,306-01

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EX PARTE GABRIEL MARKEITH WILLIAMS

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NUMBER F-03-40998-T

IN THE 283^RDJUDICIAL DISTRICT COURT

DALLAS COUNTY

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   Per curiam. Holcomb, J., would grant.

O R D E R  

     Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty and was given ten years' deferred adjudication on a charge of aggravated robbery with a deadly weapon. After a period of deferred adjudication, Applicant was adjudicated guilty and was sentenced to twenty years' imprisonment and a $1,000 fine.

Applicant alleges his sentence is illegal because he was not given a separate punishment hearing after the trial court found the adjudication allegations to be true. The trial court recommended granting relief, stating that the reporter's record substantiated Applicant's claim. A separate punishment hearing is not required as long as Applicant had the opportunity to present mitigating punishment evidence at some point in the proceedings. Pearson v. State, 994 S.W.2d 176 (Tex. Crim. App. 1999). Applicant pleaded not true to the allegations against him. The State brought three witnesses and Applicant's counsel vigorously cross-examined all three. Applicant chose to rest without presenting any evidence when he had the opportunity.

The judge found the allegations true and immediately informed Applicant that he would be imposing a sentence of twenty years' imprisonment. When asked whether he had anything to say before the imposition of sentence, Applicant did not attempt to give any type of mitigating statement, nor did he request an opportunity to present any evidence on his own behalf.

Applicant did not request an opportunity to present mitigating evidence, did not timely object to the failure of the judge to hold a separate punishment hearing, and did not file any post-trial motions on this issue until the instant habeas application, filed over a year after his adjudication hearing.

After a review of the record, we find that Applicant did not request a separate punishment hearing after his adjudication and that he had an opportunity to present mitigating evidence to the court during the general hearing. Therefore, we deny relief.

DELIVERED: May 7, 2008

DO NOT PUBLISH