Adjudicatory Hearing Judge Not Allowing to Introduce Evidence
In Issa v. State, 826 S.W.2d 159 (Tex.Crim.App. 1992), the defendant attempted to introduce evidence during his adjudicatory hearing, but was denied the opportunity to do so by the trial judge. Issa, 826 S.W.2d at 160.
When defendant's counsel concluded argument as to whether the State had proven its allegations justifying revocation of probation, the trial judge immediately adjudicated defendant guilty and sentenced him. Id.
The trial judge then left the bench, and the defendant did not have the opportunity to object to the trial court's action in failing to allow evidence as to punishment. Id.
The defendant filed a motion for new trial and obtained a hearing on the motion.
The motion urged that the trial court erred in not holding a hearing on punishment after adjudicating defendant guilty.
On appeal, the State urged that appellant had not preserved error for appeal because no objection was lodged at the time the trial court pronounced punishment.
The Court of Criminal Appeals held that the failure to immediately object and obtain a ruling, under the circumstances, did not waive appellant's right to assert the error on appeal. Id. at 161.
The Court held that under the particular circumstances presented, the urging of the issue in appellant's motion for new trial, and the indication by appellant at the hearing on the motion for new trial that he wished to offer evidence in mitigation of punishment, was sufficient to advise the trial court of the complaint and to thus preserve error for appellate review. Id.
The Court held that the appellant was ". . . improperly sentenced without being given an opportunity to present evidence prior to sentencing." Id.
In so holding, however, the Issa opinion referenced the language of Duhart v. State, 668 S.W.2d 384 (Tex.Crim.App. 1984) that a defendant is to be accorded an opportunity to offer evidence in mitigation of punishment after revocation of probation, ". . . if such evidence has not already been elicited during the proceedings, particularly if the defendant requests the opportunity." Issa, 826 S.W.2d at 161.