Affirmed and Memorandum Opinion filed October 25, 2012.




                                           In The

                           Fourteenth Court of Appeals
                                  ___________________

                                   NO. 14-10-00067-CR
                                     ____________

                           ADBIHAKIM HASSAN, Appellant

                                              V.

                           THE STATE OF TEXAS, Appellee


              On Appeal from the County Criminal Court at Law No. 14
                               Harris County, Texas
                            Trial Court Cause No. 5473


              MEMORANDUM OPINION ON REMAND

       On remand, we consider appellant Adbihakim Hassan’s claims that the trial court
erred in overruling his objections to police officers’ testimony and that the trial court erred
in denying his motion for deferred disposition. We affirm.
                      FACTUAL AND PROCEDURAL BACKGROUND

       Appellant was charged with the offense of failing to stop at a clearly marked stop
line while facing a red light, to which he pleaded “not guilty.” A municipal court jury
found appellant guilty of the misdemeanor traffic offense. On appeal, the county criminal
court at law affirmed the conviction. See Tex. Gov’t Code § 30.00014. Appellant
appealed the decision of the county court to this court for de novo review, raising the
following issues:

              An assertion that the trial court erred in denying his motion to quash
              in issues one and two;

              A challenge to the legal and factual sufficiency of the evidence in
              issue seven;

              A claim that the trial court erred in denying his Batson challenge in
              issues four and five;

              A claim that the trial court erred in denying his motion for a deferred
              disposition in issue three; and

              An assertion that the trial court erred in overruling his objections to
              officers’ testimony in issue six.

This court overruled appellant’s first, second, and seventh issues. See Hassan v. State,
346 S.W.3d 234, 237, 238 (Tex. App.—Houston [14th Dist.] 2011), rev’d, 369 S.W.3d 872
(Tex. Crim. App. 2012). This court sustained appellant’s fourth and fifth issues, holding
that appellant had established a prima facie case of racial discrimination pursuant to his
Batson challenge, reversed the decision of the county court at law, and remanded the case
to the municipal court for a new trial. See id. at 240. This court did not reach the merits
of appellant’s third and sixth issues. See id. at 240 & n.5. On discretionary review, the
Texas Court of Criminal Appeals reversed this court’s judgment, holding that appellant
had failed to demonstrate a prima facie case of racial discrimination as raised in his Batson
issues. See Hassan v. State, 369 S.W.3d 872, 878 (Tex. Crim. App. 2012). Now, on


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remand, in accordance with the high court’s directive, we consider appellant’s remaining
issues. See id.

                                   ISSUES AND ANALYSIS

Did the trial court err in denying appellant’s motion for deferred disposition?

       In his third issue, appellant complains that the trial court erred in denying his motion
for deferred disposition. Before the trial began, appellant made an oral motion for
deferred disposition under both article 45.051 and article 45.0511 of the Texas Code of
Criminal Procedure. The trial court denied the motion. Appellant reurged his motion after
the State rested, and the trial court again denied the motion.

       Article 45.051, entitled “Suspension of Sentence and Deferral of Final Disposition,”
provides:

       On a plea of guilty or nolo contendere by a defendant or on a finding of guilt
       in a misdemeanor case punishable by fine only and payment of all court
       costs, the judge may defer further proceedings without entering an
       adjudication of guilt and place the defendant on probation for a period not to
       exceed 180 days.

Tex. Code Crim. Proc. Ann. art. 45.051 (West 2006). Article 45.0511, entitled “Driving
Safety Course or Motorcycle Operator Course Dismissal Procedures,” similarly provides
for dismissal of certain traffic offenses on completion of a driving safety course. Tex. Code
Crim. Proc. Ann. art. 45.0511(s)(2) (West 2006). Neither article applies to an offense
committed by a person who holds a commercial driver’s license. See Tex. Code Crim.
Proc. Ann. arts. 45.051(f)(2)(B), 45.0511(s)(2).

       Although testimony at trial showed that appellant was driving a taxi cab when he
was cited, appellant declined to answer when asked by the trial judge if he had a
commercial driver’s license. Appellant asserts that he was punished for electing to remain
silent in violation of his constitutional right not to testify. Requiring a defendant to
answer an inquiry about probation status is not a “classic penalty situation” in which a

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party is threatened with punishment after asserting a privilege against self-incrimination.
See Minnesota v. Murphy, 465 U.S. 420, 436, 104 S. Ct. 1136, 1148, 79 L. Ed. 2d 409
(1984); Chapman v. State, 115 S.W.3d 1, 8 (Tex. Crim. App. 2003). Appellant was not
asked to incriminate himself, but instead to establish that he qualified for deferred
adjudication probation. His Fifth Amendment right against self-incrimination was not
implicated as he contends on appeal.

       Appellant also argues that because deferred disposition is unavailable to a driver
with a commercial operator’s license, that driver is punished more severely than other
drivers in violation of his constitutional rights. For support, appellant relies on the case of
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), a case in
which the Supreme Court of the United States held that facts used to increase an offense’s
penalty beyond a statutory maximum must be submitted to a jury. We reject appellant’s
attempt to equate the denial of deferred disposition to an increase in the penalty for an
offense and find Apprendi inapplicable to the facts of this case. First, an order deferring
adjudication of guilt and placing a defendant on probation or community supervision is not
a conviction.    See Price v. State, 866 S.W.2d 606, 611 (Tex. Crim. App. 1993).
Community supervision is an arrangement in lieu of the sentence—it is not part of the
sentence.   Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999).                Deferred
adjudication is, therefore, not a form of punishment; punishment is assessed only after
deferred adjudication probation is revoked. See generally Walker v. State, 557 S.W.2d
785, 786 (Tex. Crim. App. 1977) (holding that on revocation of deferred adjudication
probation, trial court may assess punishment greater than term of original probation).
Moreover, deferred disposition is discretionary, not a matter of right. See Tex. Code
Crim. Proc. Ann. arts. 45.051, 45.0511; see also Speth, 6 S.W.3d at 534 (stating trial
court’s decision to grant community supervision is “wholly discretionary”).

       The trial court was unable to determine if appellant qualified for deferred
disposition, and the court exercised its discretion to deny deferred disposition. Contrary

                                              4
to appellant’s assertion, the complaint is not required to contain an allegation, and the State
is not required to prove, that appellant does not qualify for deferred disposition. See Tex.
Code Crim. Proc. Ann. art. 45.019; see also Mansfield v. State, 306 S.W.3d 773, 775 (Tex.
Crim. App. 2010) (holding appellant is required to plead and prove eligibility for
probation). We conclude that the municipal court did not abuse its discretion in denying
appellant’s request for deferred disposition. We overrule appellant’s third issue.

Did the trial court err in overruling appellant’s objections to the police officers’
testimony?

         In his sixth issue, appellant asserts that the municipal court erred in overruling his
objections to questions that he claims called for a conclusion of law or ultimate issue for
the jury. He complains that the trial court permitted Officer Lindsey and Sergeant
Robinson to testify that appellant was not directed by a traffic device to turn left on the red
light.

         We review a trial court’s evidentiary rulings for an abuse of discretion. See Powell
v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will not disturb the trial court’s
ruling if it is “within the zone of reasonable disagreement.” See Winegarner v. State, 235
S.W.3d 787, 790 (Tex. Crim. App. 2007). Instead, we will uphold the ruling if it is
reasonably supported by the record and correct on any theory of law applicable to the case.
Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

         In general, witnesses must testify to matters about which they have personal
knowledge. Tex. R. Evid. 602. Rule 701 provides: “If the witness is not testifying as an
expert, his testimony in the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the witness and (b) helpful to
a clear understanding of his testimony or the determination of a fact at issue.” Tex. R.
Evid. 701.

         Opinion testimony that is otherwise admissible is not objectionable solely because it
embraces an ultimate issue to be decided by the trier of fact. Tex. R. Evid. 704; Ex parte
                                            5
Nailor, 149 S.W.3d 125, 134 (Tex. Crim. App. 2004) (describing officer’s testimony that
defendant had not been attacked). The police officers testified based on their observations
and experience in patrolling the same area where appellant was cited. We hold that the
trial court did not abuse its discretion in admitting the officers’ testimony.         See
Ruiz-Angeles v. State, 351 S.W.3d 489, 499 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied). Appellant’s sixth issue is overruled.

       Having overruled appellant’s remaining issues on remand, we affirm the county
court’s order upholding the municipal court’s judgment of conviction.




                                                 /s/    Kem Thompson Frost
                                                        Justice



Panel consists of Chief Justice Hedges and Justices Frost and Christopher.
Publish — TEX. R. APP. P. 47.2(b).




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