AFFIRM; and Opinion Filed October 18, 2017.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00019-CR

                              LAQUECHIA MORRIS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 422nd Judicial District Court
                                  Kaufman County, Texas
                             Trial Court Cause No. 31572-422

                             MEMORANDUM OPINION
                        Before Justices Lang-Miers, Brown, and Boatright
                                 Opinion by Justice Lang-Miers
       Appellant Laquechia Morris appeals her conviction following the adjudication of her

guilt for possession of a controlled substance. In one issue, she contends the trial court erred by

failing to hold a separate punishment hearing. We affirm the trial court’s judgment because

(1) appellant did not object on this ground at trial, and (2) appellant had the opportunity to

present punishment evidence to the trial court.

       In 2013, pursuant to a plea agreement, appellant pleaded guilty to the offense of

possession of a controlled substance of one gram or more but less than four grams. See TEX.

HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2017). The trial court deferred adjudication

of guilt and placed appellant on two years’ community supervision in accordance with the

agreement. Subsequent orders extended the conditions of appellant’s community supervision

until July 31, 2017.     In September 2016, the State filed a motion to revoke community
supervision or proceed to adjudication of guilt. After a hearing, the trial court granted the State’s

motion and rendered judgment adjudicating appellant’s guilt. The trial court sentenced appellant

to five years’ confinement, probated for five years. As one of the conditions to community

supervision, the trial court ordered appellant to serve a term of confinement and treatment in a

substance abuse felony punishment facility (“SAFP”) for a term of not less than 90 days or more

than one year.

       At the hearing on the State’s motion to adjudicate, the State did not call any witnesses.

Appellant pleaded true to one paragraph of the State’s motion and one paragraph in a

supplemental motion. The State requested that the court amend the conditions of probation to

require appellant to be placed in the SAFP program. Counsel for the State argued that appellant

“needs to focus solely on her rehabilitation,” and “the only way to do that, in my opinion, based

on the efforts that she’s made thus far, would be a lockdown facility where the only thing she’s

got to concentrate on is curing or learning how to deal with her addictive personality.”

       Appellant testified at the hearing. She requested help with her addiction to drugs. She

explained to the court that she has three children, ages 10, 12, and 17, and that she was the

children’s primary caregiver until she was incarcerated. She testified that she believed she could

be treated successfully for her addiction on an outpatient basis, rather than in “a lockdown

facility.” She explained that “I need to be out so I can be there for my children,” and that she

had adequate transportation to attend outpatient treatment.

       On cross-examination and questioning by the Court, appellant admitted that she had not

been able to complete prior substance abuse treatment successfully, and that she had relapsed,

but she denied ever using drugs around her children. Appellant admitted to the court that she had

been an addict for eight years, had used a variety of drugs, and had used drugs shortly before her

most recent incarceration. In closing argument, appellant’s counsel stated that “the only issue

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that we place before the Court is whether or not there is an alternative to the SAFP program that

can be done on an outpatient or more limited basis.”

       In explaining appellant’s sentence, the court stated that given appellant’s history, she

needed the structure of SAFP conditions “to get clean and sober and stay that way.” The court

continued:

       I’m very sensitive to these matters, and I want you to get clean and sober and be a
       good mom, and a good member of the community, and good citizen; but the
       history is not a good one, and so I want you to get clean. I think the lockdown
       facility, the SAFP facility is what you need right now. So that is the order of the
       Court. . . . So I want you to focus on being an active, successful participant in that
       program.

       In her sole issue on appeal, appellant contends the trial court erred by not holding a

separate punishment hearing. Citing Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992),

and article 42.12, section 5(b) of the code of criminal procedure, appellant contends a separate

hearing was required to “allow Appellant to put on mitigating evidence.” See Issa, 826 S.W.2d

at 161 (accused is entitled to punishment hearing after adjudication of guilt, and trial court must

allow opportunity to present evidence); TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West

Supp. 2016) (after adjudication of guilt, all proceedings, including assessment of punishment,

continue as if adjudication of guilt had not been deferred). She concedes that she did not object,

but contends that the trial court proceeded directly “from one pronouncement to the next” so that

she had no opportunity to object.

       The State responds that appellant did not preserve her complaint for review. In the

alternative, the State argues that the trial court did not err by failing to hold a separate

punishment hearing because appellant had the opportunity to present punishment evidence

during the adjudication hearing “and did, in fact, present such evidence through her testimony.”

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

Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001). This right, however, is a
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statutory right that can be waived. Id. Appellant did not complain about the lack of a separate

punishment hearing either at the time she was adjudicated guilty or in a motion for new trial. See

TEX. R. APP. P. 33.1(a)(1) (preservation of error); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.

App.—Dallas 2003, no pet.) (to preserve error for appeal, record must show appellant made

timely request, objection, or motion). And in Hardeman v. State, 1 S.W.3d 689, 690–91 (Tex.

Crim. App. 1999), the court distinguished Issa, explaining that “Issa does not stand for the

absolute right to a separate punishment hearing. Instead, it requires the defendant to have the

opportunity to present evidence in mitigation of punishment if not afforded during adjudication.”

        The record reflects that during the adjudication hearing, appellant was given the

opportunity to present evidence, and did so. See id. at 691. She testified about her concern for

her children, her desire to “be there” for them, and her ability to successfully complete an

outpatient program. Appellant “had the opportunity to present evidence during the proceedings,

and that is all that is required.” Id.

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

hearing after adjudicating appellant’s guilt. We decide appellant’s sole issue against her. We

affirm the trial court’s judgment.




                                                     /Elizabeth Lang-Miers/
                                                     ELIZABETH LANG-MIERS
                                                     JUSTICE

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

170019F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

LAQUECHIA MORRIS, Appellant                        On Appeal from the 422nd Judicial District
                                                   Court, Kaufman County, Texas
No. 05-17-00019-CR        V.                       Trial Court Cause No. 31572-422.
                                                   Opinion delivered by Justice Lang-Miers;
THE STATE OF TEXAS, Appellee                       Justices Brown and Boatright, participating.

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


Judgment entered this 18th day of October, 2017.




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