Opinion issued June 17, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00847-CR
RENE ALEGRIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 02CR1020
MEMORANDUM OPINION
A jury found appellant, Rene Alegria, guilty of unlawful possession of a firearm by a felon. Appellant elected for the trial court to assess punishment. Following a pre-sentence investigation (PSI), the trial court sentenced appellant to 15 years in prison. In one issue, appellant contends that the trial court erred in admitting certain portions of the PSI report because appellant’s Fifth Amendment right against self-incrimination and state and federal due process rights were violated when he was interviewed for the report without counsel present.
We affirm.
Right to Counsel at PSI interview
At the beginning of the punishment phase, defense counsel made the following objection to the PSI report: “I was not allowed to be with my client while he was interviewed for the presentence investigation, and I think that violates his fundamental rights . . . .” Defense counsel further stated, “I think that still under his right to counsel I should be allowed to be with him when he’s being interviewed.” The State conceded that defense counsel had made a request to accompany appellant during the PSI interview. However, the State further explained that it was not the “practice” to allow defense counsel to participate in the PSI. The State pointed out that it also did not participate in the interview. Defense counsel then objected to the “practice” because it “require[d] the defendant to either waive his right to counsel or waive an opportunity to make a contribution to the PSI.” The trial court asked defense counsel if there was a “specific thing” he was objecting to “other than just generally to the policy.” After reviewing the PSI report in detail, defense counsel informed the court of the “the specific things that I would complain about.” In particular, defense counsel stated that if he had been present during the PSI interview, he would have instructed appellant not to answer the interviewer’s questions regarding appellant’s juvenile record, his gang affiliation, or his past drug use. The trial court then overruled appellant’s objections to the PSI report.
In his sole issue on appeal, appellant complains that admitting the PSI report into evidence violated his Fifth Amendment privilege against self-incrimination, as well as his state and federal rights to due process.
To preserve error, an objection to the admission of evidence must be reasonably specific to apprise the trial court of the legal basis for the challenge. See Fluellen v. State, 104 S.W.3d 152, 167 (Tex. App.—Texarkana 2003, no pet.). This rule applies even to constitutional error. See Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002); see also Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a)(1). Additionally, the rule that an error presented on appeal must be the same as an objection raised at trial applies with equal force to constitutional violations. See Little v. State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988).
In this case, appellant did not articulate to the trial court the legal basis for the complaint that he now raises on appeal. Though he informed the trial court that his objection grew out of the interviewing officer’s denial of his request for his defense counsel to be present during the PSI questioning, appellant failed to inform the trial court that his objection was based on a violation of his Fifth Amendment right against self-incrimination, as he now claims on appeal, or to otherwise articulate the specific legal basis of his complaint. Moreover, the legal basis of appellant’s objection was not apparent from the context of the objection. See Tex. R. App. P. 33.1(a)(1). Arguably, appellant could have been challenging the PSI report based on a violation of appellant’s Sixth Amendment right to counsel, his Fifth Amendment right to counsel, his Fifth Amendment privilege against self-incrimination, his corresponding state constitutional rights, or all or none of the above.
Notably, the right-against-self-incrimination and right-to-counsel clauses of the Texas Constitution warrant an analysis distinct from federal constitutional analysis. See Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991). Likewise, the Fifth Amendment right to counsel and the Sixth Amendment right to counsel involve different rights and considerations. See Holloway v. State, 780 S.W.2d 787, 793 (Tex. Crim. App. 1989). Without knowing the legal basis of appellant’s objection, the trial court did not know which constitutional analysis to apply. Concomitantly, we cannot hold that the trial court abused its discretion in admitting the PSI report. Accordingly, we hold that appellant failed to preserve this issue for our review. See Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a)(1).
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Nuchia, Alcala, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).