Wilson v. State

TERRIE LIVINGSTON, Justice,

concurring.

While I agree with the majority’s conclusion as dictated by Fryer v. State, I concur because of the analysis. Fryer v. State, 68 S.W.3d 628, 631 (Tex.Crim.App.2002).

I believe that there is no basis to review appellant’s sole point on appeal: that the trial court erred in considering allegations of bad acts contained in the PSI when *333those acts were not proven beyond a reasonable doubt. None of appellant’s objections at trial challenged the facts or statements contained in the PSI on the ground that the trial court failed to conclude they were true beyond a reasonable doubt. For this reason, I would conclude error, if any, has not been preserved because the complaint at trial does not comport with the complaint on appeal. Tex.R.App. P. 38.1(a); Butler v. State, 872 S.W.2d 227, 236 (Tex.Crim.App.1994), cert. denied, 513 U.S. 1157, 115 S.Ct. 1115, 130 L.Ed.2d 1079 (1995); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990).