Damion Faulkner v. State

Affirmed and Memorandum Opinion filed April 21, 2011.

 

In The

 

Fourteenth Court of Appeals

                                                                                         

NO. 14-10-00098-CR

 

Damion Faulkner, Appellant

V.

The State of Texas, Appellee

 

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1173547

 

MEMORANDUM  OPINION

 

Appellant Damion Faulkner appeals his conviction for murder on the ground that the trial court erred in failing to order a presentence investigation report prepared.  We affirm.

Appellant was indicted for the murder of his wife.  He waived his right to a jury trial and entered a plea of guilty to the offense as charged.  Appellant initialed and signed a waiver of his constitutional rights, agreement to stipulate to the evidence, and judicial confession.  He also initialed and signed several admonishments including the following:

I understand that before sentence may be imposed, the Court must order preparation of a Presentence Investigation Report by the probation officer pursuant to Article 42.12, Section 9, V.A.C.C.P.  I have thoroughly discussed this matter with my attorney and believe that for the Court to compel me to participate in the preparation of such a report would abridge the protection provided me by the Constitution of the United States and the Constitution and laws of the State of Texas and could result in further prejudice to me.  Therefore, I hereby in writing respectfully decline to participate in the preparation of a Presentence Investigation Report and request that said report not be made prior to the imposition of sentence herein.  I further knowingly, voluntarily, and intelligently waive any right which I may have to the preparation of said report either under Article 42.12, Sec. 9, V.A.C.C.P. or under Article 42.09, Sec. 8(a)(10), V.A.C.C.P.[.]

 

At appellant’s plea hearing, the State offered the plea documents and the trial court asked appellant whether he understood the document when he signed it.  Appellant responded that he did.  The trial court further explained that appellant was giving up important rights including his rights to a jury trial and to confront and cross-examine witnesses.  Appellant explained that he understood the rights he was waiving and pleaded guilty.  After hearing evidence on punishment the trial court found appellant guilty and sentenced him to 62 years in prison.

For the first time on appeal appellant argues the trial court erred in failing to order a presentence investigation report in assessing his punishment pursuant to section 9 of article 42.12 of the Texas Code of Criminal Procedure.  Section 9(a) provides:

Except as provided by Subsection (g) of this section, before the imposition of sentence by a judge in a felony case, . . . the judge shall direct a supervision officer to report to the judge in writing on the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge.  It is not necessary that the report contain a sentencing recommendation, but the report must contain a proposed client supervision plan describing programs and sanctions that the community supervision and corrections department would provide the defendant if the judge suspended the imposition of the sentence or granted deferred adjudication.

Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a).

Subsection (g) provides:

A judge is not required to direct an officer to prepare a presentence report in a felony case under this section if:

(1) punishment is to be assessed by a jury;

(2) the defendant is convicted of or enters a plea of guilty or nolo contendere to capital murder;

(3) the only available punishment is imprisonment; or

(4) the judge is informed that a plea bargain agreement exists, under which the defendant agrees to a punishment of imprisonment, and the judge intends to follow the agreement.

Tex. Code Crim. Proc. Ann. art.  42.12 § 9(g).

 

In Griffith v. State, the Texas Court of Criminal Appeals held that “there is nothing in Section 9 that prevents the defendant in a felony case from waiving the preparation of the [presentence investigation] report.”  Griffith v. State, 166 S.W.3d 261, 263 (Tex. Crim. App. 2005).  Appellant waived his right to the report in writing as part of his guilty plea.

Appellant claims he did not knowingly waive his right to a presentence investigation report.  Appellant’s contention, however, is not supported by the record.  The record reflects that appellant signed and initialed the document affirmatively waiving his right to a presentence investigation report.  In open court at the time of his plea, he stated he understood the document he signed and voluntarily pleaded guilty.  Further, appellant did not object to the trial court’s failure to order a presentence investigation report during the punishment hearing, nor did appellant file a motion for new trial.  Failure to raise an objection before the trial court also precludes appellate review of his claim.  See Alberto v. State, 100 S.W.3d 528, 529 (Tex. App.—Texarkana 2003, no pet.).  Because appellant waived his right to a presentence investigation report, we overrule his sole issue.

The judgment of the trial court is affirmed.

 

                                                                                    PER CURIAM

 

 

 

Panel consists of Chief Justice Hedges and Justices Frost and Christopher.

Do Not Publish — Tex. R. App. P. 47.2(b).