                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00432-CR


JASON M. POWERS                                                      APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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      Appellant Jason M. Powers appeals his conviction for credit card abuse,

which is a state jail felony.2 He argues that the trial court erred when it did not

hold a separate punishment hearing after revoking his community supervision

and adjudicating his guilt. We affirm.



      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 32.31(b)(1)(A), (d) (Vernon Supp. 2010).
                                Background Facts

      A Tarrant County grand jury indicted appellant for credit card abuse.

Appellant pled guilty.     The trial court placed him on deferred adjudication

community supervision for a two-year term, and appellant agreed to comply with

several explicit conditions.

      Less than a year later, the State petitioned the trial court to proceed with

adjudicating appellant guilty, alleging that appellant failed to attend a substance

abuse evaluation and an intensive day treatment program. Appellant pled true to

both of these contentions, and then he briefly testified about the facts of the

underlying offense and why he had failed to comply with the community

supervision conditions. The trial court asked whether the State or appellant had

any additional questions to ask, and then both sides rested and closed. After the

parties declined to give closing arguments, the trial court found appellant guilty

and immediately sentenced him to a year’s confinement. Appellant’s counsel

said there was “no legal reason” why the sentence should not be pronounced.

Appellant filed a motion for new trial on the sole ground that the “verdict was

contrary to law and evidence,” and he also filed a notice of this appeal.

                       The Forfeiture of Appellant’s Point

      In his only point, appellant argues that the trial court erred when it failed to

hold a separate punishment hearing after adjudicating his guilt. He asks us to

remand this case to the trial court for a new punishment hearing. The State




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argues, in part, that appellant’s point has been forfeited. We agree with the

State.

         To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d

249, 265 (Tex. Crim. App. 1998) (op. on reh=g), cert. denied, 526 U.S. 1070

(1999). Further, the trial court must have ruled on the request, objection, or

motion, either expressly or implicitly, or the complaining party must have objected

to the trial court=s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State,

138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

         The court of criminal appeals has held that a separate punishment hearing

that follows a revocation of deferred adjudication and an adjudication of guilt is “a

statutory right which can be waived.” Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.

Crim. App. 2001). Thus, to avoid forfeiture of the right to a separate punishment

hearing, a defendant must complain at trial or in a motion for new trial.        Id.;

see Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999); Lincoln v.

State, 307 S.W.3d 921, 925 (Tex. App.—Dallas 2010, no pet.); Gober v. State,

917 S.W.2d 501, 502 (Tex. App.—Austin 1996, no pet.) (“We hold that an

accused who raises no objection [to the lack of a separate hearing on

punishment] at the [adjudication] hearing or in a motion for new trial has failed to




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preserve error and may not raise his complaint for the first time on appeal.”).3

Appellant invites us to adopt the reasoning of a concurring opinion in Vidaurri, but

we must follow the precedent of the majority’s opinion. See State v. Stevenson,

993 S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no pet.) (op. on remand)

(“Because a decision of the court of criminal appeals is binding precedent, we

are compelled to comply with its dictates.”).

         We hold that appellant’s failure to object to the lack of a separate

punishment hearing at trial or in a motion for new trial forecloses his ability to

raise his point on appeal. See Vidaurri, 49 S.W.3d at 886. Thus, we overrule the

point.




         3
        We have held the same. See Levier v. State, No. 02-03-00436-CR, 2004
WL 1175318, at *2 (Tex. App.—Fort Worth May 27, 2004, no pet.) (mem. op., not
designated for publication). In the case that appellant principally relies on, the
defendant preserved error about the lack of a punishment hearing because he
specifically raised the issue in a motion for new trial. See Issa v. State, 826
S.W.2d 159, 161 (Tex. Crim. App. 1992).


                                         4
                               Conclusion

      Having overruled appellant’s only point, we affirm the trial court’s

judgment.


                                             TERRIE LIVINGSTON
                                             CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 13, 2011




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