                                      In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-12-00374-CR
                              _________________

                    RONALD JASON DUCHAINE, Appellant

                                        V.

                        THE STATE OF TEXAS, Appellee

________________________________________________________________________

                    On Appeal from the 252nd District Court
                           Jefferson County, Texas
                          Trial Cause No. 98-76111
________________________________________________________________________
                           MEMORANDUM OPINION
      Ronald Jason Duchaine1 appeals from the trial court’s revocation of his

community supervision. In one issue, Duchaine contends that the trial court erred

in assessing and sentencing him immediately after adjudicating his guilt. We

overrule Duchaine’s issue and affirm the trial court’s judgment.

      Duchaine was indicted for the offense of aggravated robbery. See generally

Tex. Penal Code Ann. § 29.03 (West 2011). Pursuant to a plea bargain agreement,

      1
          Ronald Jason Duchaine is also known as Ronald Charles Duchaine.
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he entered a plea of guilty to the offense. The trial court found the evidence

sufficient to find Duchaine guilty, but deferred finding him guilty, and placed him

on community supervision for six years. The State subsequently filed a motion to

revoke Duchaine’s community supervision. Duchaine pled “true” to four violations

of the terms of his community supervision. Thereafter, the trial court found that

Duchaine violated the terms of the community supervision order, found Duchaine

guilty of aggravated robbery, revoked Duchaine’s community supervision, and

imposed a sentence of twenty-five years of confinement.

      In his sole issue, Duchaine argues the trial court erred in pronouncing

sentence without giving him an opportunity to make objections. The Texas Code

of Criminal Procedure provides that “[i]f community supervision is revoked after a

hearing . . . , the judge may proceed to dispose of the case as if there had been no

community supervision[.]” Tex. Code Crim. Proc. Ann. art. 42.12, § 23 (West

Supp. 2012). When a trial court adjudicates an offense for which a defendant

received deferred adjudication, the court must then afford the defendant an

opportunity to present punishment evidence. Pearson v. State, 994 S.W.2d 176,

178 (Tex. Crim. App. 1999) (citing Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim.

App. 1992)). The Court in Pearson explained that “[i]t is immaterial that the



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opportunity to present evidence came before the actual words of adjudication.” Id.

at 179.

      Although a defendant is entitled to present punishment evidence at a hearing

following an adjudication of guilty, “it is a statutory right which can be waived.”

Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001). To preserve error, a

defendant generally is required to make a timely objection in the trial court. Tex.

R. App. P. 33.1. To successfully complain on appeal that he was denied the

opportunity to present punishment evidence, a defendant must first make an

objection in the trial court or, if there was no opportunity to object, timely file a

motion for new trial. See Vidaurri, 49 S.W.3d at 886. If a motion for new trial is

used, the motion should indicate with some specificity the evidence the defendant

would have presented if the separate hearing had been accorded. Salinas v. State,

980 S.W.2d 520, 521 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d).

      Here, it is undisputed that Duchaine did not object to the trial court during

the hearing. Duchaine claims he preserved error through a motion for new trial

raising these matters. After reviewing the record, we conclude that while Duchaine

filed a motion for new trial, his motion was untimely, and therefore, failed to

preserve error. See Tex. R. App. P. 21.4(a). In addition, Duchaine failed to indicate

in his motion for new trial what evidence he would have presented at a separate

                                         3
hearing on punishment. See Salinas, 980 S.W.2d at 521. We conclude that

Duchaine failed to preserve his issue for appellate review. See Tex. R. App. P.

33.1.

        Moreover, assuming without finding that Duchaine preserved error,

Duchaine had an opportunity to present evidence in mitigation of punishment, even

if it was presented before the actual adjudication. See Pearson, 994 S.W.2d at 179.

Duchaine’s counsel explained to the court that Duchaine moved to New York

because his mother became ill. Counsel informed the court that Duchaine ran a

small café and worked full time as a maintenance person. The court was informed

that Duchaine is married and has a young child. Duchaine testified that he thinks

about his offense and his victims daily. Duchaine’s counsel further stated that

Duchaine “asks the Court to consider the low range of the punishment when

considering his first degree felony[,]” and “to honor what the State of Texas

offered him[.]” The record demonstrates that the trial court allowed Duchaine to

present testimony and make arguments to the trial court concerning his

punishment. Accordingly, we cannot conclude that he was not given an

opportunity to present punishment evidence at the hearing.

        Having overruled Duchaine’s sole issue, we affirm the trial court’s

judgment.

                                        4
      AFFIRMED.

                                             __________________________
                                                 CHARLES KREGER
                                                      Justice

Submitted on May 22, 2013
Opinion Delivered July 10, 2013
Do not publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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