Affirm and Opinion Filed April 10, 2014




                                              In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                      No. 05-13-00236-CR

                               OTIS GARDNER, III, Appellant

                                                V.

                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 204th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F10-56220-Q

                               MEMORANDUM OPINION
                         Before Justices FitzGerald, Fillmore, and Evans
                                 Opinion by Justice FitzGerald

       Otis Gardner, III appeals his conviction following the adjudication of his guilt for

aggravated assault with a deadly weapon. In three issues, appellant contends the trial court erred

by failing to allow a separate punishment hearing and the sentence assessed violates his

constitutional rights. We affirm the trial court’s judgment.

       Appellant waived a jury and pleaded guilty to aggravated assault with a deadly weapon, a

firearm. See TEX. PENAL CODE ANN. § 22.02(a) (West 2011); TEX. FAM. CODE ANN. §§ 71.0021,

71.005 (West 2008 & Supp. 2013). Pursuant to a plea agreement, the trial court deferred

adjudicating guilt, placed appellant on five years’ community supervision, and assessed a $3,000
fine. The State later moved to adjudicate guilt, alleging appellant violated the conditions of his

community supervision.      Appellant pleaded true to all of the allegations in a hearing on the

motion. The trial court found the allegations true, adjudicated appellant guilty, and assessed

punishment at ten years’ imprisonment.

       In his first issue, appellant contends the trial court erred by failing to conduct a separate

punishment hearing, and that appellant was not allowed to present mitigating evidence. The

State responds that appellant has waived his claim for appellate review and alternatively, the trial

court did not err because appellant presented punishment evidence.

       Appellant was entitled to a punishment hearing after the adjudication of his guilt.        See

Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001).        However, appellant’s right to a

separate punishment hearing is a statutory right that can be waived. See id. at 886. Appellant did not

complain about the lack of a separate punishment hearing either at the time he was adjudicated guilty

or in a motion for new trial. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719,

723 (Tex. App.—Dallas 2003, no pet.).

       Moreover, the record reflects the trial court did not prevent appellant from presenting

punishment evidence and that appellant did present such evidence. See Hardeman v. State, 1 S.W.3d

689, 691 (Tex. Crim. App. 1999) (opportunity to present evidence is only requirement; immaterial

whether evidence presented before actual words of adjudication); Pearson v. State, 994 S.W.2d 176,

179 (Tex. Crim. App. 1999) (defendant had opportunity to, and did, present punishment evidence).

During the hearing, appellant testified he had used PCP and K2 while on probation, and that although

he had been previously sent to SAFPF and their relapse program for drug treatment, he still wanted

treatment for his drug addiction problems.




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        Appellant also presented testimony from his mother and a cousin.             His mother stated

appellant is a bipolar schizophrenic who needs treatment for his substance abuse issues. Appellant’s

cousin testified she believed appellant needed in-patient drug treatment for his addiction.

        We conclude the trial court did not err in not conducting a separate punishment hearing after

adjudicating appellant’s guilt. We overrule appellant’s first issue.

        In his second and third issues, appellant contends the sentence is disproportionate to the

offense and violates the United States and Texas Constitutions because the facts of the case do

not support a ten-year prison term. Appellant asserts his testimony showed the cause of the

violations was in relation to his serious drug addiction, and he should have received drug

treatment. The State responds that appellant has failed to preserve his complaint for appellate

review and alternatively, the sentence does not violate constitutionally prohibitions against cruel

and unusual punishment.

        Appellant did not complain about the sentence either at the time it was imposed or in a

motion for new trial. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d at 723.

Thus, appellant has not preserved this issue for appellate review. Moreover, punishment that is

assessed within the statutory range for an offense is neither excessive nor unconstitutionally

cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d); see

also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Aggravated assault with a

deadly weapon is a first-degree felony, punishable by imprisonment for five to ninety-nine years

or life and an optional fine not to exceed $10,000. See TEX. PENAL CODE ANN. §§ 12.32,

22.02(b(1)). Appellant’s ten-year sentence is at the lower end of the statutory punishment range.

We overrule appellant’s second and third issues.




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        We affirm the trial court’s judgment.



                                                      /Kerry P. FitzGerald/
                                                      KERRY P. FITZGERALD
                                                      JUSTICE

Do Not Publish
TEX. R. APP. P. 47

130236F.U05




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                                 Court of Appeals
                          Fifth District of Texas at Dallas

                                         JUDGMENT


OTIS GARDNER, III, Appellant                       Appeal from the 204th Judicial District
                                                   Court of Dallas County, Texas (Tr.Ct.No.
No. 05-13-00236-CR       V.                        F10-56220-Q).
                                                   Opinion delivered by Justice FitzGerald,
THE STATE OF TEXAS, Appellee                       Justices Fillmore and Evans participating.



      Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.



      Judgment entered April 10, 2014.




                                                     /Kerry P. FitzGerald/
                                                     KERRY P. FITZGERALD
                                                     JUSTICE




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