      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00358-CR



                                Judy Turner Walker, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
            NO. 49883, HONORABLE JOE CARROLL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In late 1999, appellant Judy Turner Walker pled guilty to the charge of aggravated

assault with a deadly weapon (repeat offender) in exchange for deferred adjudication with ten years

community supervision. In March 2008, the State filed a motion to adjudicate Walker’s guilt,

alleging that she had violated the terms of her community supervision. The trial court held a hearing

on the State’s motion, and Walker admitted that the State’s allegations were true. The court

adjudicated Walker guilty of the underlying assault charge and sentenced her to fifteen years

imprisonment. Walker appeals, complaining in one issue that the adjudication proceeding violated

her due process rights. We affirm the trial court’s judgment.

               At the hearing, the trial court accepted Walker’s plea of true to the State’s allegations

that she had violated the terms of her community supervision and found that she had violated her

probation. It then said, “Having found that’s the case, the next thing to do is to consider your
punishment issues.” Walker did not object. The State called Walker’s community supervision

officer to testify about her behavior, and Walker testified on her own behalf, asking the trial court

to give her one more chance. At the conclusion of the hearing, the trial court said, “Ms. Walker,

based on your plea of ‘true’ and based on your stipulation, I’ll find it is true that you did violate your

probation. And having found that you violated your probation, . . . I’m going to find you guilty of

the underlying felony offense.” The court then sentenced her to fifteen years in prison.

                        Walker complains that “the Court did not adjudicate guilt. The Court

accepted [Walker]’s plea of true; however, the Court did not find [Walker] guilty during the

adjudication phase of the hearing,” instead waiting until after sentencing to make that

pronouncement. She cites to Issa v. State as supporting authority, arguing that when a defendant is

convicted and sentenced “in one continuous statement, the defendant had no opportunity to object

and therefore did not waive error.” See 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (“when 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”). She also cites to article 42.12 of the code of criminal procedure, which provides that

if a defendant violates her community supervision, she is “entitled to a hearing limited to the

determination by the court of whether it proceeds with an adjudication of guilt on the original

charge.” Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2008). “After an adjudication

of guilt, all proceedings, including assessment of punishment [and] pronouncement of sentence, . . .

continue as if the adjudication of guilt had not been deferred.” Id.

                In Issa, the trial court heard evidence on the State’s motion to adjudicate and in one

proclamation, revoked the defendant’s probation, adjudicated his guilt of the underlying offense, and


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sentenced him to ten years in prison. 826 S.W.2d at 160. The court did not allow the defendant an

opportunity to present evidence relevant to sentencing. Id. In this case, however, the trial court

accepted Walker’s plea of true to the allegations and said it was going to proceed to the punishment

phase. See Euler v. State, 218 S.W.3d 88, 92 (Tex. Crim. App. 2007) (no right to separate

punishment hearing). The only thing the trial court did not do is say the words, “I adjudicate you

guilty of the underlying offense of aggravated assault.” Thus, there was no Issa error. See id. at 161.

               Instead, Walker “not only had the opportunity to, but did present punishment

evidence. [Walker] testified in [her] own behalf in regard to punishment, urging the trial court to

continue [her] probation . . . . It is immaterial that the opportunity to present evidence came before

the actual words of adjudication.” Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999);

see also Euler, 218 S.W.3d at 91-92 (no error to hear evidence on State’s motion to revoke,

including evidence relevant to punishment, and then revoke probation, adjudicate guilt, and

immediately assess punishment). We overrule Walker’s sole issue on appeal and affirm the

trial court’s judgment.



                                               ___________________________________________

                                               David Puryear, Justice

Before Chief Justice Law, Justices Puryear and Pemberton

Affirmed

Filed: December 31, 2008

Do Not Publish



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