Affirmed and Memorandum Opinion filed April 17, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00469-CR
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LUIS JAIME TORRES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1033562
M E M O R A N D U M O P I N I O N
Appellant, Luis Jaime Torres, was indicted on the charge of aggravated assault. Due to a prior felony conviction for aggravated robbery, the charge was enhanced. Appellant entered a plea of guilty without an agreement on recommended punishment. The trial court sentenced appellant to confinement for fifty years. We affirm.
Factual and Procedural Background
On July 10, 2005, appellant visited the home of Mary Ann Roman, a 25-year-old woman who lived with her mother. Appellant had visited the home in the past and his demeanor had normally been calm and quiet, but on that day both Mary Ann and her mother described appellant=s behavior as abnormal and erratic. Appellant managed to lock himself inside the home alone with Mary Ann and proceeded to assault her. Mary Ann sustained serious injury, including severe damage to the right eye, a shredded right ear, a dislocated right elbow, a fractured right wrist, fractures to both sides of her jaw and bleeding to the brain. Further, she had a fork stab wound to the neck and the paramedics found the prongs of the fork embedded in her skin. Mary Ann has undergone nine surgeries, amassing over $50,000 in medical expenses, and she faces additional procedures.
Appellant pleaded guilty to the indictment of second degree felony aggravated assault, enhanced with a prior felony. The trial court reset the case for sentencing following the preparation and return of a presentence investigation report (PSI). During the sentencing hearing, the trial court indicated that the PSI had been prepared and that the court had reviewed the document. At the conclusion of the hearing, the court entered a formal finding of guilt, found the enhancement valid, and sentenced appellant to a fifty-year prison sentence. This appeal followed.
Issues on Appeal
In his first and second issues, appellant contends that the conviction is void because the trial judge reviewed the PSI before finding appellant guilty, violating his federal and state constitutional rights to due process of law and due course of law. U.S. Const. amend. V, XIV, ' 1; Tex. Const. art. I, ' 19. Because the Texas Constitution and the U.S. Constitution offer appellant the same level of protection, we will address the first and second points of error jointly. See Jimenez v. State, 32 S.W.3d 233, 242 (Tex. Crim. App. 2000) (McCormick, P.J., concurring) (recognizing that A[t]he term >due process of law= in the Fifth and Fourteenth Amendments to the federal constitution and the term >due course of law= in our state constitution mean the same thing@).
In his third and fourth issues, appellant contends that the fifty-year sentence was not proportional to the offense committed, violating his federal and state constitutional rights against cruel and unusual punishment. U.S. Const. amend. VIII; Tex. Const. art. I, ' 13. Again, because the Texas Constitution and the federal constitution offer appellant the same level of protection, we will address the third and fourth points of error jointly. Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997) (finding Ano significance in the difference between the Eighth Amendment's >cruel and unusual= phrasing and the >cruel or unusual= phrasing of Art. I, Sec. 13 of the Texas Constitution@).
Examining the PSI Report
I. Appellant Did Not Preserve Error
In his first and second points of error, appellant contends that the trial court violated his right to due process of law when the judge reviewed the PSI before entering a formal guilty verdict. To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling. Tex. R. App. P. 33.1(a). Appellant concedes in his brief that he never raised this objection in the trial court and therefore, he did not preserve error. He relies, instead, on a narrow exception to the requirement of preserving error, that fundamental errors cannot be waived. See Tex. R. Evid. 103(d) (stating that nothing in the rules of evidence Aprecludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court@); Moreno v. State, 26 S.W.2d 652, 653 (Tex. Crim. App. 1930) (on reh=g) (holding that absent fundamental error, the appellate court may only reverse on grounds properly raised to the trial court).
II. This Case is Distinguishable From McDonald
Appellant contends that the error in this case is fundamental and thus did not require an objection at the trial court level. To support this proposition, he cites State ex rel. Turner v. McDonald, 676 S.W.2d 375 (Tex. Crim. App. 1984) and State ex rel. Bryan v. McDonald, 662 S.W.2d 5 (Tex. Crim. App. 1983) (hereafter Athe McDonald cases@). In the McDonald cases, the Texas Court of Criminal Appeals held that the trial court=s inspection of the PSI prior to a determination of guilt violates state and federal rights to due process. Turner, 676 S.W.2d at 379; Bryan, 662 S.W.2d at 8. Appellant admits that the Texas Court of Criminal Appeals never explicitly held in the McDonald cases that the trial court=s procedure constituted fundamental error. However, appellant argues that the Court implicitly ruled in those cases based on finding fundamental error.
We do not find the McDonald cases controlling. In the McDonald cases, the trial judge viewed the PSI before determining the defendant=s guilt or innocence. Turner, 676 S.W.2d at 379; Bryan, 662 S.W.2d at 7. The Court of Criminal Appeals was concerned about due process violations when a judge considers A[w]holesale evidence, almost always of a hearsay nature, not sworn to and not subject to the rigors of cross-examination . . . before a plea is even entered.@ Bryan, 662 S.W.2d at 7 (emphasis added).
That did not happen here. This trial judge reviewed the report after appellant pleaded guilty, signed a judicial confession, and stipulated to the evidence of his guilt. As a result, the judge could not have used the PSI to influence a decision on guilt, but only to influence his punishment decision. Thus, appellant=s constitutional rights were not violated. Baldridge v. State, 77 S.W.3d 890, 892 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d); see also Wissinger v. State, 702 S.W.2d 261, 263 (Tex. App.CHouston [1st Dist.] 1985, pet. ref=d) (holding that when the judge considers the presentencing report after the defendant pleads no contest, signs a judicial confession, and stipulates to the evidence, Athe report could not have influenced the judge except in deciding the appropriate punishment@); Mitchell v. State, Nos. 14-02-00896-CR, 14-02-00897-CR, 2003 WL 22349093, at *1 (Tex. App.CHouston [14th Dist.] Oct. 16, 2003, pet. ref=d) (not designated for publication) (same). Further, the Texas Code of Criminal Procedure permits a judge to inspect a PSI report once Athe defendant pleads guilty or nolo contendere or is convicted of the offense.@ Tex. Code Crim. Proc. art. 42.12 ' 9(c). Consequently, the judge likewise did not violate any of the appellant=s state statutory rights.
Because the defendant failed to object to the trial court=s review of his PSI and the trial court did not commit a fundamental error, we overrule appellant=s first two points of error.
Constitutionality of Appellant=s Fifty-Year Sentence
I. Appellant Did Not Preserve Error
In his third and fourth points of error, appellant contends the trial court committed reversible error in assessing his punishment at fifty years, violating his state and federal constitutional rights against cruel and unusual punishment. U.S. Const. amend. VIII, XIV; Tex. Const. art. I, ' 13. As discussed above, nearly every right, constitutional and statutory, may be waived when a defendant fails to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). In that regard, an appellant may waive his right to assert error pertaining to his sentence. Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983) (noting that appellant failed to raise the issue of cruel and unusual punishment to the trial court and consequently did not preserve error for review); Holley v. State, 167 S.W.3d 546, 549 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (same). As with his first and second points of issues, appellant did not timely object to the sentence. Thus, appellant failed to preserve his third and fourth points of error for appellate review and we therefore overrule them.
Conclusion
Having overruled each of appellant=s four issues on appeal, we affirm the judgment of the trial court.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed April 17, 2007.
Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.
Do Not Publish C TEX. R. APP. P 47.2(b).