Jonte Lamar Horton v. State

• Court: Court of Appeals of Texas
• Decided: October 18, 2018
• Docket: 05-18-00374-CR
• Status: Published

Opinion

AFFIRM; and Opinion Filed October 18, 2018.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00372-CR No. 05-18-00373-CR No. 05-18-00374-CR

JONTE LAMAR HORTON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F17-24398-W, F17-24399-W & F17-24400-W

MEMORANDUM OPINION Before Justices Lang, Fillmore, and Schenck Opinion by Justice Fillmore Jonte Lamar Horton was convicted of aggravated assault, aggravated robbery, and

aggravated kidnapping and sentenced to twelve years’ imprisonment in each case. In two points

of error, Horton argues the trial court erred by neither reviewing the presentence investigation

(PSI) report nor allowing the defense a chance to respond to the report. We affirm the trial court’s

judgments.

On two successive evenings, Horton unsuccessfully attempted to rob Huan Pham and

Jawad Ali. Horton was charged with aggravated assault with respect to his attempt to rob Pham

and with aggravated robbery and aggravated kidnapping with respect to his attempt to rob Ali.

Without the benefit of a plea bargain, Horton pleaded guilty to all three charges, and the trial court “passed” the cases for sentencing. While awaiting the sentencing hearing, Horton was interviewed

by the “probation department” and a PSI report was evidently prepared.1

At a subsequent hearing, Horton informed the trial court that he was not guilty of the

aggravated kidnapping of Ali, and the trial court granted Horton a new trial on the aggravated

kidnapping charge. In a combined bench trial in all three cases, the trial court heard evidence

relating to the kidnapping of Ali and relevant to punishment in all three cases, including mitigating

evidence offered by Horton. The trial court found Horton guilty of all three charges and sentenced

him to twelve years’ imprisonment in each case.

Horton argues the trial court erred by not reviewing the PSI report and not allowing the

defense to comment on the report. Unless certain exceptions apply, the trial court is required to

direct a supervision officer to prepare a PSI report in a felony case. TEX. CODE CRIM. PROC. ANN.

art. 42A.252(a), (c);2 Griffith v. State, 166 S.W.3d 261, 262 (Tex. Crim. App. 2005). Unless

waived by the defendant, at least forty-eight hours prior to the imposition of sentence, the trial

court must permit the defendant or his counsel to read the PSI report. TEX. CODE CRIM. PROC.

ANN. art. 42A.255(a). The trial court must also allow the defendant or his counsel to comment on

the PSI report and, with the approval of the court, introduce testimony or other information alleging

a factual inaccuracy in the report. Id. art. 42A.255(b). However, a complaint regarding the trial

court’s failure to comply with its statutory duties pertaining to a PSI report may be forfeited by

inaction. Wright v. State, 873 S.W.2d 77, 83 (Tex. App.—Dallas 1994, pet. ref’d) (concluding

complaints regarding trial court’s failure to comply with statute requiring preparation and review

of PSI report were subject to procedural default and could be forfeited by inaction); see also

1 The PSI report is not in the appellate record; however, neither party disputes that one was prepared. 2 Effective January 1, 2017, article 42.12 of the code of criminal procedure was re-codified as chapter 42A of the code of criminal procedure. See Act of May 26, 2015, 84th Leg., R.S., ch. 770, §§ 1.01, 4.02, 2015 Tex. Gen. Laws 2321, 2321–65. Because the statute was re-codified without substantive change, cases decided under the former article 42.12 remain applicable to our analysis.

–2– Griffith, 166 S.W.3d at 263 (concluding defendant may waive right to preparation of PSI report

required by article 41A.252).3

Horton did not object at trial that the trial court did not consider the PSI report or did not

allow the defense to comment on the report. Horton, therefore, failed to preserve his complaints

relating to the PSI report for appellate review. See Wright, 873 S.W.2d at 82–83; see also TEX. R.

APP. P. 33.1(a) (before party can raise complaint on appeal, he must have objected in trial court

and obtained ruling on objection).4

However, even if Horton had preserved his complaints, we would conclude he failed to

identify any error by the trial court. “Where procedural requirements do not affirmatively appear

in the record to have been violated, a presumption of regularity of the trial judge’s ruling must

prevail.” Jones v. State, 646 S.W.2d 449, 449 (Tex. Crim. App. 1983) (per curiam); see also

Frame v. State, 615 S.W.2d 766, 770 (Tex. Crim. App. [Panel Op.] 1981) (noting that, when record

is silent, appellate court must presume compliance with procedural rules).5 The burden is on the

appellant to overcome the presumption. Wright, 873 S.W.2d at 80. In this case, there is no

indication in the appellate record that the trial court did not review the contents of the PSI report

or did not allow the defense to comment on the report. Rather, the record is simply silent on the

matter. Accordingly, we must presume the trial court complied with the procedural requirements

relating to the PSI report. See id.

3 See also Benitez v. State, No. 05-14-00384-CR, 2015 WL 4550737, at *2 (Tex. App.—Dallas July 28, 2015, no pet.) (mem. op., not designated for publication) (concluding defendant waived complaint that he was never apprised of contents of PSI report because “complaints involving a presentencing investigation report are forfeitable by inaction”); Evans v. State, No. 11-09-00341-CR, 2011 WL 5994429, at *6 (Tex. App.—Eastland Nov. 30, 2011, pet. ref’d) (mem. op., not designated for publication) (“Courts have held that [statutory rights pertaining to PSI reports] are subject to waiver because they are in a category of rights that can be forfeited via ‘procedural default.’”). 4 See also McBride v. State, No. 05-11-01727-CR, 2013 WL 363776, at *1 (Tex. App.—Dallas Jan. 31, 2013, no pet.) (mem. op., not designated for publication) (appellant waived any error by trial court in not allowing appellant opportunity to object to PSI report by failing to raise complaint in trial court); Mitchell v. State, No. 03-09-00643-CR, 2010 WL 5019123, at *2 (Tex. App.—Austin Dec. 8, 2010, no pet.) (mem. op., not designated for publication) (appellant waived complaint about any failure by trial court to review PSI report by failing to object in trial court). 5 See also Benitez, 2015 WL 4550737, at *2.

–3– We resolve Horton’s two points of error against him and affirm the trial court’s judgments.

/Robert M. Fillmore/ ROBERT M. FILLMORE JUSTICE

Do Not Publish TEX. R. APP. P. 47

180372F.U05

–4– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JONTE LAMAR HORTON, Appellant On Appeal from the 363rd Judicial District Court, Dallas County, Texas, No. 05-18-00372-CR V. Trial Court Cause No. F17-24398-W. Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Lang and Schenck participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 18th day of October, 2018.

–5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JONTE LAMAR HORTON, Appellant On Appeal from the 363rd Judicial District Court, Dallas County, Texas, No. 05-18-00373-CR V. Trial Court Cause No. F17-24399-W. Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Lang and Schenck participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

–6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JONTE LAMAR HORTON, Appellant On Appeal from the 363rd Judicial District Court, Dallas County, Texas, No. 05-18-00374-CR V. Trial Court Cause No. F17-24400-W. Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Lang and Schenck participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

–7–