AFFIRM; and Opinion Filed January 18, 2018.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00097-CR

                               GLENN BRUMSEY, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 86th Judicial District Court
                                  Kaufman County, Texas
                             Trial Court Cause No. 31441-86

                             MEMORANDUM OPINION
                        Before Justices Lang-Miers, Brown, and Whitehill
                                 Opinion by Justice Lang-Miers

       Appellant Glenn Brumsey was convicted of possession of a controlled substance in a drug-

free zone and sentenced to five years imprisonment. He appeals raising a single issue that the trial

court erred when it did not hold a separate punishment hearing after revoking his community

supervision and adjudicating his guilt. We affirm.

       On January 23, 2013, appellant entered a plea of guilty to the offense of possession of a

controlled substance in a drug-free zone. Pursuant to a plea bargain agreement, the trial court

deferred adjudication of guilt and placed appellant on five years’ community supervision. On

March 31, 2016, the State filed a motion to revoke community supervision or proceed to

adjudication of guilt. The State filed a supplemental motion on January 9, 2017. These motions

alleged that appellant violated his community supervision in that he committed the offense of
driving while intoxicated on March 19, 2016; committed the offense of assault on December 13,

2016; failed to pay probation fees; failed to pay a fine; failed to pay court costs; and failed to pay

court ordered restitution.

       On January 27, 2017, a hearing was held on the motions to adjudicate. Appellant entered

a plea of not true to the allegations. The State presented evidence that appellant had committed

the alleged two new offenses while on community supervision and that appellant was delinquent

in his payments towards court ordered fees, fines, court costs and restitution.

       Appellant testified in his own defense. Appellant told the trial court that he suffered from

multiple disabilities: “I got a bad heart. I got heart problems. I got blood pressure. I got back

issues. I got knee problems. I mean, I’m on all types of medication.” Appellant testified that

although he received disability funds, he had many financial obligations, including children,

which had caused him to become delinquent in his payments. With respect to the alleged DWI,

appellant claimed that, although he had consumed two-three drinks before the incident which led

to his arrest, he was not the person who had been driving the car. Prior to the alleged assault, he

had a car accident and had been knocked nearly unconscious, or at least dizzy, and did not

remember committing the assault.

       The trial court found the allegations in the State’s motions to be true, adjudicated

appellant’s guilt, and sentenced him to five years’ confinement in prison.

       On February 9, 2017, appellant filed a motion for new trial alleging that there had been

no separate sentencing hearing before the trial court pronounced sentence, that he had been

unable to present punishment evidence before sentencing, and that he had been deprived of his

right to have a sentencing hearing. The trial court denied this motion on February 15, 2017.

       On appeal, appellant claims that the trial court erred by failing to allow a separate

punishment hearing and/or by denying him an opportunity to present evidence on sentencing.

                                                 –2–
Appellant relies on Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992). The State responds

that this issue was not preserved or, alternatively, that appellant had an opportunity to present

additional mitigating evidence and failed to do so. We agree with the State.

       Following an adjudication of guilt, a defendant is entitled to a punishment hearing and

the trial judge must allow the defendant an opportunity to present evidence. Id., at 161; see also

Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001). This right, however, is a statutory

right that can be waived if not properly requested. Vidaurri, 49 S.W.3d at 885-86.

       Appellant did not complain about the lack of a separate punishment hearing at the time

he was adjudicated guilty. See TEX. R. APP. P. 33.1(a)(1) (preservation of error). Appellant

argues that he preserved this issue by filing a motion for new trial. In Issa, the Court of Criminal

Appeals found that a defendant preserved error by filing a timely motion for new trial only

because the trial judge found the defendant guilty and immediately sentenced him; the defendant

did not have the opportunity to object or present evidence. Issa, 826 S.W.2d at 161. In Hardeman

v. State, 1 S.W.3d 689 (Tex. Crim. App. 1999), however, the Court of Criminal Appeals clarified

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.” Id., at 690–91. Here, appellant was given ample

opportunity to present mitigating evidence and did so. Appellant testified about his disabilities

and the financial obligations that resulted in his being delinquent on his payments of fees, fines,

court costs and restitution. Appellant testified that he had not been driving a car at the time he

was arrested for DWI, thereby offering a defense to that alleged offense. He further testified that

he had been in an accident resulting in dizziness and perhaps partial unconsciousness and had no

recollection of the assault of which he was accused. Because the trial court gave appellant the

opportunity to present evidence in mitigation of punishment at the revocation hearing, and

                                                –3–
because appellant presented mitigating evidence, this claim was not timely raised in the motion

for new trial. Under these circumstances appellant has failed to preserve his claim.

           Even if the motion for new trial is sufficient to preserve this issue for appellate review,

appellant cannot prevail on the merits of his claim because the trial court afforded appellant three

separate opportunities to present any evidence he chose. In adjudicating appellant guilty and

pronouncing sentence, the trial court asked twice if there was any reason why sentence should

not be pronounced. Both times appellant responded “no.”1 Additionally, before the final

pronouncement of sentence, the judge asked Appellant, “Is there anything else before my (sic)

pronounce sentence?” Appellant again responded “no.” Consequently, appellant had the

opportunity to present evidence during the proceedings, and that is all that is required.

Hardeman, 1 S.W.3d at 691 (claim of denial of opportunity to present punishment evidence not

preserved when trial court inquired whether defendant had anything to say at pronouncement of

sentence).



1
    These exchanges are as follows:
           THE COURT: I will find the evidence sufficient – I will find the allegations to be true. I will find
           the evidence sufficient to find you guilty. I will find you guilty. I will sentence you -- sentence you
           to a period of five years in the Institutional Division of the Texas Department of Criminal Justice.
           There will be no fine. Was there any allegations of restitution made? ... So restitution in the amount
           of $130 to DPS. I won’t assess a fine. There will be court cost.

           Is there any legal reason why sentence should not be pronounced at this time, Mr. Harris?”

           MR. HARRIS: No, Judge.

And, further:

           THE COURT: Mr. Brumsey, having found the allegations contained in State’s motion to proceed
           to be true, I have adjudicated your guilt. I have found the evidence sufficient to find you guilty. You
           are found guilty … Any legal reason why sentence should not be pronounced?

           MR. HARRIS: No, Judge.




                                                            –4–
       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 him and

affirm the trial court’s judgment.

                                          Conclusion



       We overrule appellant’s sole issue and affirm.




                                                 /Elizabeth Lang-Miers/
                                                 ELIZABETH LANG-MIERS
                                                 JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)

170097F.U05




                                              –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 GLEN BRUMSEY, Appellant                           On Appeal from the 86th Judicial District
                                                   Court, Kaufman County, Texas
 No. 05-17-00097-CR         V.                     Trial Court Cause No. 31441-86.
                                                   Opinion delivered by Justice Lang-Miers.
 THE STATE OF TEXAS, Appellee                      Justices Brown and Whitehill participating.

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


Judgment entered this 18th day of January, 2018.




                                             –6–
