TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00317-CR
Roxanne Gibson, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 3 OF BELL COUNTY
NO. 2C98-2149, HONORABLE GERALD M. BROWN, JUDGE PRESIDING
Appellant Roxanne Gibson appeals from her conviction of the offense of assault causing bodily injury. See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2000). The trial court assessed appellant's punishment at confinement in the county jail for 365 days and a fine of $100. On appeal, appellant asserts that the evidence is insufficient to support the verdict and that the trial court erred at the punishment phase of trial in considering extraneous offenses not established beyond a reasonable doubt.
In her first point of error, appellant's specific complaint is that the State failed to prove the allegation that the offense was committed anterior to the filing of the information. This contention was not raised in the trial court.
One of the requisites of an information is "[t]hat the time mentioned be some date anterior to the filing of the information, and that the offense does not appear to be barred by limitation." Tex. Code Crim. Proc. Ann. art. 21.21(b) (West 1989). It was alleged that the offense was committed "on or about the 2nd day of March, 1998, A.D., and anterior to the filing of this information."
It is unnecessary to allege that the offense was committed anterior to the filing of an information or the presentment of an indictment. See Rincon v. State, 615 S.W.2d 746, 747 (Tex. Crim. App. 1981); Smith v. State, 416 S.W.2d 425, 425 (Tex. Crim. App. 1967); Mason v. State, 272 S.W.2d 527, 529 (Tex. Crim. App. 1954). However, if an information is filed on the same day that it is alleged the offense was committed, it is necessary to allege that the offense was committed before the information was filed. See Cockrell v. State, 227 S.W.2d 216, 216 (Tex. Crim. App. 1950); Martini v. State, 205 S.W.2d 988, 989 (Tex. Crim. App. 1947).
Appellant concedes that in this case it was unnecessary to allege that the offense was committed anterior to the filing of the information. Nevertheless she argues that the allegation is descriptive of the offense and the State having made the allegation must prove it beyond a reasonable doubt. Appellant relies on the exception to the rule stated in Burrell v. State, 526 S.W.2d 799, 802 (Tex. Crim. App. 1975). "When not descriptive of that which is legally essential to the validity of an indictment or information, unnecessary words may be rejected as surplusage." Burrell, 526 S.W.2d at 802 (quoting Cohen v. State, 479 S.W.2d 950 (Tex. Crim. App. 1972)). However, "where the unnecessary matter is descriptive of that which is legally essential to charge a crime, it must be proven as alleged, even though needlessly stated." Id. at 802.
The elements of the offense of assault with bodily injury are: (1) a person, (2) intentionally, knowingly, or recklessly, (3) caused bodily injury to another. See Tex. Penal Code Ann. § 27.01(a)(1). The allegation that the offense was committed anterior to the filing of the information was not descriptive of an element of the offense, and was not descriptive of that which was legally essential to the validity of the information; it may be disregarded as surplusage. The record shows that the offense was committed on March 2, 1998, the day alleged, and the record also shows that the information was filed on April 28, 1998. Appellant's first point of error is overruled.
In her second point of error, appellant complains that the trial court erred during the punishment phase of the trial in considering extraneous acts which were not established beyond a reasonable doubt. Appellant's complaint relates to the trial court's consideration of a presentence investigation report which at the court's request was furnished to the court pursuant to the provisions of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 42.12, § 9 (West Supp. 2000).
The presentence report listed several prior convictions. Appellant argues that there was "certainly danger that the trial court's decision was based upon evidence improperly before the Court." The record shows the presentence investigation report was properly before the court. See Garcia v. State, 930 S.W.2d 620, 623-24 (Tex. App.--Tyler 1996, no pet.). Moreover, appellant's point of error was not properly preserved for appellate review. In order to preserve a matter for appellate review, there must be a timely specific objection. See Tex. R. App. P. 33.1; Tex. R. Evid. 103; Johnson v. State, 878 S.W.2d 164, 167 (Tex. Crim. App. 1994).
When the trial court convened the hearing on punishment and sentencing, the State and appellant announced ready. Both the prosecutor and defense counsel told the court that they had read the presentence investigation report. Neither the prosecutor nor the defense counsel called witnesses. The State offered in evidence the presentence investigation report prepared by the Bell County Community Supervision and Corrections Department. It was admitted in evidence by the court without objection, and the State rested. The defense offered a "character letter" in evidence. The trial court overruled the State's objection and admitted the letter offered by the defense. The letter was in support of appellant's application for community supervision. Defense counsel then stated, "We're going to just rely on the information that's included in the presentence investigation," and called the court's attention to specific portions of the report. The trial court then asked the defense if there were any corrections or additions to the report. Defense counsel asked to confer with his client and then made a belated objection.
[Defense Counsel]: Your Honor, just for the record, I'm going to lodge an objection on the PSI with regard to the criminal record section. Mrs. Gibson disputes some of the -- some of the listings on the criminal record. I think the PSI specifically points out six prior misdemeanor convictions.
Mrs. Gibson is disputing that claim. Just for the record I'm going to lodge an objection to the PSI.
THE COURT: Overruled.
The criminal history section of the presentence investigation report lists six misdemeanor convictions in Bell County between April 24, 1992 and July 29, 1997, three of which were for assault with bodily injury. The cause number, date of conviction, and the punishment assessed for each of the six convictions were stated. Appellant did not make a specific objection to any of the six convictions.
The complaint made on appeal was not preserved for review in the trial court. Furthermore, it appears the report was made pursuant to the provisions of the Code of Criminal Procedure and was properly considered by the court. Appellant's second point of error is overruled.
The judgment is affirmed.
Carl E. F. Dally, Justice
Before Justices Jones, Kidd and Dally*
Affirmed
Filed: March 2, 2000
Do Not Publish
* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
n. art. 42.12, § 9 (West Supp. 2000).
The presentence report listed several prior convictions. Appellant argues that there was "certainly danger that the trial court's decision was based upon evidence improperly before the Court." The record shows the presentence investigation report was properly before the court. See Garcia v. State, 930 S.W.2d 620, 623-24 (Tex. App.--Tyler 1996, no pet.). Moreover, appellant's point of error was not properly preserved for appellate review. In order to preserve a matter for appellate review, there must be a timely specific objection. See Tex. R. App. P. 33.1; Tex. R. Evid. 103; Johnson v. State, 878 S.W.2d 164, 167 (Tex. Crim. App. 1994).
When the trial court convened the hearing on punishment and sentencing, the State and appellant announced ready. Both the prosecutor and defense counsel told the court that they had read the presentence investigation report. Neither the prosecutor nor the defense counsel called witnesses. The State offered in evidence the presentence investigation report prepared by the Bell County Community Supervision and Corrections Department. It was admitted in evidence by the court without objection, and the State rested. The defense offered a "character letter" in evidence. The trial court overruled the State's objection and admitted the letter offered by the defense. The letter was in support of appellant's application for community supervision. Defense counsel then stated, "We're going to just rely on the information that's included in the presentence investigation," and called the court's attention to specific portions of the report. The trial court then asked the defense if there were any corrections or additions to the report. Defense counsel asked to confer with his client and then made a belated objection.
[Defense Counsel]: Your Honor, just for the record, I'm going to lodge an objection on the PSI with regard to the criminal record section. Mrs. Gibson disputes some of the -- some of the listings on the criminal record. I think the PSI specifically points out six prior misdemeanor convictions.
Mrs. Gibson is disputing that claim. Just for the record I'm going to lodge an objection to the PSI.
THE COURT: Overruled.
The criminal history section of the presentence investigation report lists six misdemeanor convictions in Bell County between April 24, 1992 and July 29, 1997, three of which were for assault with bodily injury. The cause number, date of conviction, and the punishment assessed for each of the six convictions were stated. Appellant did not make a specific objection to any of the six convictions.
The complaint made on appeal was not preserved for review in the trial court. Furthermore, it appears the report was made pursuant to the provisions of the Code of Criminal Procedure and was properly considered by the court. Appellant's second point of error is overruled.
The judgment is affirmed.
Carl E. F. Dally, Justice
Before Justices Jones, Kidd and Dally*