punishment hearing in Texas

2025The court further stated that a 11 “defendant is entitled to a punishment hearing after the adjudication of guilt, and the trial judge must allow the accused the opportunity to present evidence.” Id.

2023ANN. art. 42A.110(a); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. 2 The State alternatively argues that even if error had been preserved, appellant was not entitled to a separate punishment hearing because he presented mitigation evidence during the June 7, 2021 hearing.

2024However, Issa “does not stand for the absolute right to a separate punishment hearing” but instead “requires the defendant to have the opportunity to present evidence in mitigation of punishment if not afforded during adjudication.” Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim.

2022Regardless, “Issa does not stand for the absolute right to a separate punishment hearing.” Hardeman v. State, 1 S.W.3d 689 , 690–91 (Tex. Crim.

2023However, the entitlement to a separate punishment hearing “is a statutory right which can be waived.” Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim.

2023Punishment Hearing In her first issue, appellant argues that the trial court erred in not allowing her an “opportunity to present punishment evidence” before assessing her punishment at confinement for twenty-four months and a fine of $750.00 because a trial “court must conduct a separate second phase to determine punishment” after finding true an allegation of a violation of a condition of community supervision. 6 After the trial court adjudicates a defendant guilty during a hearing on the State’s motion to adjudicate, the defendant “is entitled to a punishment hearing,” and “the trial [court

2012The court of appeals concluded that the record of this hearing “was not necessary” to the appeal, but the court of criminal appeals disagreed, noting that there was “nothing to prohibit appellant from claiming ineffective assistance of counsel during the punishment hearing.” Id. at 51-52 .

2006In Kirtley , we determined that a claim of ineffective assistance of counsel at the punishment hearing after adjudication of guilt was independent of the conviction. 56 S.W.3d at 51 .

2024App. P. 33.1; Burt, 396 S.W.3d at 577 (“A sentencing issue may be preserved by objecting at the punishment hearing, or when the sentence is pronounced.”); Richardson v. State, 328 S.W.3d 61, 72 (Tex. App.––Fort Worth 2010, pet. ref’d) (holding appellant failed to preserve complaint about alleged disproportionate sentencing); Arnold, 2023 WL 8940397 , at *6 (holding appellant waived complaint about his sentence’s length). 4 /s/ Elizabeth Kerr Elizabeth Kerr Justice Do Not Publish Tex. R.

2024App. P. 33.1(a)(1); Burt, 396 S.W.3d at 577–78; see also Nieves-Perez v. State, No. 12-19-00389-CR, 2021 WL 1047209 , at *3 (Tex. App.—Tyler Mar. 18, 2021, pet. ref’d) (mem. op., not designated for publication) (concluding that an appellant may complain about cruel and unusual punishment “for the first time in a motion for new trial only if he did not have an opportunity to object during the punishment hearing.”).

2017See, e.g., Strickland, 466 U.S. at 699-700 (prejudice from allegedly deficient performance in failing to present evidence at punishment hearing was analyzed in terms of its effect on the punishment hearing).

2017See, e.g. , Strickland , 466 U.S. at 699 -700 , 104 S.Ct. 2052 (prejudice from allegedly deficient performance in failing to present evidence at punishment hearing was analyzed in terms of its effect on the punishment hearing).

2025CONCLUSION Having sustained Hargro’s first, second, and third issues but having also held that sufficient evidence exists for the jury to have convicted him of a lesser-included offense, we remand the case to the trial court to reform Hargro’s judgment to reflect a conviction for the third-degree offense of injury to a disabled individual by omission 28 causing bodily injury, see Tex. Penal Code Ann. § 22.04 (a-1)(3), (f), and to conduct a new punishment hearing based on the reformed judgment, see Thornton, 425 S.W.3d at 299–300. /s/ Brian Walker Brian Walker Justice Do Not Publish Tex. R.

2017The Court further clarified an intermediate appellate court’s responsibility to reform a judgment and remand for a new punishment hearing in Thornton v. State, 425 S.W.3d 289 (Tex. Crim.

2025As explained in Hardeman, “Issa did not stand for a general right to a separate punishment hearing, much less one on a different day.” Euler, 218 S.W.3d at 92 (discussing Hardeman); see also Pearson v. State, 994 S.W.2d 176 , 177–78 (Tex. Crim.

2018Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim App. 1992) (a defendant “is entitled to a punishment hearing after the adjudication of guilt, and the trial judge must allow the accused the opportunity to present evidence.”); see also Pearson v. State, 994 S.W.2d 176, 178 (Tex. Crim.

2023Remedy Appellant asks this court to remand for a new punishment hearing “within the state jail felony punishment range.” Appellant cites no authority to limit his new punishment hearing to the range for an unenhanced state jail felony, and we find none. “[S]ufficiency of the evidence with regard to a conviction and sufficiency with regard to a prior conviction alleged for enhancement purposes involve very different considerations.” Jordan, 256 S.W.3d at 292 .

2021Id. at 293 .2 Both parties also agree that this Court and other intermediate appellate courts have since applied Jordan to hold that insufficient evidence to support an enhancement requires a new punishment hearing without conducting a harm analysis.

2018See Salinas, 980 S.W.2d at 521 ; see also Lopez, 96 S.W.3d at 415 n.3 (although defendant, in his motion for new trial, “did complain of a lack of a separate punishment hearing,” he “did not specify” the evidence he “would have presented”); Hardeman v. State, 981 S.W.2d 773, 775 (Tex. App.— Houston [14th Dist.] 1998, pet. granted) (“[A]ppellant’s motion for new trial only complained that the motion to adjudicate proceeding ‘was invalid’ because the trial court imposed punishment ‘without conducting a separate hearing after the finding of guilt’....

2015See Salinas, 980 S.W.2d at 521 ; see also Lopez, 96 S.W.3d at 415 n.3 (although defendant, in his motion for new trial, “did complain of a lack of a separate punishment hearing,” he “did not specify” the evidence he “would have presented”); Hardeman v. State, 981 S.W.2d 773, 775 (Tex. App.—Houston [14th 18 Dist.] 1998, pet. granted) (“[A]ppellant’s motion for new trial only complained that the motion to adjudicate proceeding ‘was invalid’ because the trial court imposed punishment ‘without conducting a separate hearing after the finding of guilt’. . . .

2021Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim.

2019Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim.

2022The court remanded Bowen’s case to the trial court with instructions “to reform the conviction to reflect the felony of misapplication of fiduciary property in the second degree and to conduct a new punishment hearing.” Id.

2015This Court then ruled, retroactively, the authority relied upon by the Court of Appeals and trial counsel no longer applied, and remanded to the trial court "to reform the conviction to reflect the felony of misapplication of fiduciary property in the second degree and to conduct a new punishment hearing." Bowen v. State, supra, 374 S.W.3d at 432 .

2021“A sentencing issue may be preserved by objecting at the punishment hearing, or when the sentence is pronounced.” Burt, 396 S.W.3d at 577 (citing Idowu v. State, 73 S.W.3d 918, 923 (Tex. Crim.

2019See, e.g., Idowu, 73 S.W.3d at 920 (“Neither appellant nor his counsel objected at the punishment hearing . . . .”).

2019The record before us show that without the benefit of a plea agreement, Capetillo pleaded guilty in 2017 to the crime of evading arrest or detention with a motor vehicle, a third-degree felony. 3 During a punishment hearing, the State proved and the trial court found that Capetillo has a 1988 felony conviction for armed robbery. 4 The trial court then sentenced Capetillo to seven years’ imprisonment.5 After reviewing the appellate record and the Anders brief filed by Capetillo’s counsel, we agree with counsel’s determination that Capetillo cannot raise any 2 See Anders v. California, 386 U.S.

2014At the conclusion of the punishment hearing for the failure to register offense, the trial court dismissed the jury and called the parties for the hearing on the State’s motion 3 Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967); see In re Schulman, 252 S.W.3d 403 (Tex. Crim.

2025As explained in Hardeman, “Issa did not stand for a general right to a separate punishment hearing, much less one on a different day.” Euler, 218 S.W.3d at 92 (discussing Hardeman); see also Pearson v. State, 994 S.W.2d 176 , 177–78 (Tex. Crim.

2025Accordingly, 4 trial court does not violate due process by conducting a unitary revocation proceeding because there is no “general right to a separate punishment hearing.” 3 Euler v. State, 218 S.W.3d 88 , 92– 93 (Tex. Crim.

2020According to Ward, although the gravity of the offense to which he pleaded guilty is “very serious in the harm to [L.H.]” and Ward has three prior convictions for driving while intoxicated, his treating oncologist “testified at the punishment hearing that confinement in the Texas Department of Criminal Justice is effectively a death sentence because Appellant has been diagnosed with cancer and if left untreated, will cause Appellant’s death.” In reviewing a trial court’s sentencing determination, we afford the trial court “a great deal of discretion[.]” See Jackson v. State, 680 S.W.2d 809, 81

2017See Simpson, 488 S.W.3d at 322 (reviewing for an abuse of discretion when the trial court granted a new punishment hearing based on a claim of grossly disproportionate sen *569 tence); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim.

2024App. 1996) (holding that complaint of cruel and unusual punishment under Texas constitution was waived because defendant presented his argument for the first time on appeal); Noland v. State, 264 S.W.3d 144 , 151–52 (Tex. App.–Houston [1st Dist.] 2007, pet. ref’d) (holding that when appellant failed to object to his sentence at the punishment hearing or to complain about it in his motion for new trial, he failed to preserve his Eighth Amendment complaint that the punishment assessed was “grossly disproportionate and oppressive”); see also Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim.

2024App. 1996) (holding that complaint of cruel and unusual punishment under Texas constitution was waived because defendant presented his argument for the first time on appeal); Noland v. State, 264 S.W.3d 144 , 151–52 (Tex. App.–Houston [1st Dist.] 2007, pet. ref’d) (holding that when appellant failed to object to his sentence at the punishment hearing or to complain about it in his motion for new trial, he failed to preserve his Eighth Amendment complaint that the punishment assessed was “grossly disproportionate and oppressive”); see also Mercado, 718 S.W.2d at 296 (stating that as a general r

2007See Young v. State, 922 S.W.2d 676, 677 (Tex.App.-Beaumont 1996, pet. ref'd) (case reversed for a new punishment hearing where the jury failed to include a mandatory fine when assessing the defendant’s punishment).

2007See Young v. State , 922 S.W.2d 676, 678 (Tex. App.--Beaumont 1996, pet. ref'd); see also Tex. Code Crim.

2009Accordingly, we reverse the judgment and remand to the trial court for a new punishment hearing. (footnote: 1) See Ex parte Rich, 194 S.W.3d at 513 (stating that when there is error at the punishment phase, the case may be remanded for the proper assessment of punishment).

2009Accordingly, we reverse the judgment and remand to the trial court for a new punishment hearing.1 See Ex parte Rich, 194 S.W.3d at 513 (stating that when there is error at the punishment phase, the case may be remanded for the proper assessment of punishment).

2019App. 2002) (holding that appellant failed to preserve error as to restitution amount by failing to object at the punishment hearing to amount of restitution sought by the prosecution); Russell v. State, 341 S.W.3d 526 , 527–28 (Tex. App.—Fort Worth 2011, no pet.) (reasoning that appellant failed to preserve Eighth Amendment complaint when he did not object at sentencing).

2016App. 2002) (concluding that appellant failed to preserve error as to a restitution amount by failing to object at the punishment hearing); Russell v. State, 341 S.W.3d 526, 527-28 (Tex. App.— Fort Worth 2011, no pet.) (holding that appellant failed to preserve Eighth Amendment complaint when he did not object at sentencing).

2024App. 1996) (holding that complaint of cruel and unusual punishment under Texas constitution was waived because defendant presented his argument for the first time on appeal); Noland v. State, 264 S.W.3d 144 , 151–52 (Tex. App.–Houston [1st Dist.] 2007, pet. ref’d) (holding that when appellant failed to object to his sentence at the punishment hearing or to complain about it in his motion for new trial, he failed to preserve his Eighth Amendment complaint that the punishment assessed was “grossly disproportionate and oppressive”); see also Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim.

2024App. 1996) (holding that complaint of cruel and unusual punishment under Texas constitution was waived because defendant presented his argument for the first time on appeal); Noland v. State, 264 S.W.3d 144 , 151–52 (Tex. App.–Houston [1st Dist.] 2007, pet. ref’d) (holding that when appellant failed to object to his sentence at the punishment hearing or to complain about it in his motion for new trial, he failed to preserve his Eighth Amendment complaint that the punishment assessed was “grossly disproportionate and oppressive”); see also Mercado, 718 S.W.2d at 296 (stating that as a general r

2021See, e.g., Andrews, 159 S.W.3d at 104 ; see also TEX.

2015Ineffective Assistance of Counsel To obtain a reversal based on harm from counsel’s deficient performance at punishment, an appellant must show that “a reasonable probability [exists] that, but for counsel’s unprofessional errors, the result of the punishment hearing would have been different.” See Andrews v. State, 159 S.W.3d 98, 101, 103 (Tex. Crim.

2013In Russeau , the State introduced into evidence at the defendant’s punishment hearing “incident reports” from the Smith County Jail and “disciplinary reports” from the Texas Department of Criminal Justice. 171 S.W.3d at 880 .

2011Russeau v. State, 171 S.W.3d 871 (Tex. Crim.

2013On this record, we cannot conclude that, had appellant’s counsel performed the complained-of actions at the punishment hearing, there is “a reasonable probability that the result of the proceedings would have been different.” See Thompson, 9 S.W.3d at 812 .

2011Given that a silent record ordinarily will not overcome the strong presumption of reasonable assistance, we will review Martinez‘s appellate complaint to determine whether trial counsel‘s alleged failure to present any mitigating evidence during the punishment hearing was ―so outrageous that no competent attorney would have engaged in it.‖ See Roberts, 220 S.W.3d at 533 ; Goodspeed, 187 S.W.3d at 392 ; Thompson, 9 S.W.3d at 813-14 .

2021Thus, we find the charge failed to sequence the 2012 conviction properly because it did not require the jury to find that he committed the underlying offense relevant to his conviction in 2012 on a finding that he committed that offense after his conviction on one or more of the felonies he incurred in 2006 became final. 35 When there is error in the charge, the reviewing court must determine whether the defendant was harmed.36 And the degree of harm needed before the defendant is entitled to a new punishment hearing depends on whether the error in the charge was properly preserved in the tria

2021CONCURRING OPINION I agree with the Court’s conclusion that the defect in the punishment-phase jury instructions here constituted ordinary charge error, such that the error is subject to a harm analysis under Almanza 1 before reversal and a new punishment hearing is appropriate. 1 686 S.W.2d 157 (Tex. Crim.