McDonald, Jack Herndon v. State

• Court: Court of Appeals of Texas
• Decided: July 21, 2005
• Docket: 14-04-00401-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed July 21, 2005

Affirmed and Memorandum Opinion filed July 21, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00401-CR

JACK HERNDON MCDONALD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 970,133

M E M O R A N D U M   O P I N I O N

Appellant, Jack Herndon McDonald, pled guilty to the offense of indecency with a child.  Tex. Pen. Code Ann. ' 21.11(a)(1) (Vernon 2003).  After accepting appellant=s guilty plea and admonishing him that the full range of punishment would be considered, the trial court, in conjunction with appellant=s request for community supervision, ordered a pre-sentence investigation (PSI) report and reset the case for a sentencing hearing.  The trial court sentenced appellant to twenty years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In four points of error, appellant argues the trial court erred in reviewing his PSI report prior to formally entering a finding of guilt and in assessing punishment at twenty years= confinement in violation of his federal and state constitutional rights against cruel and unusual punishment.  We affirm. 

Discussion

I.        The PSI Report

In points of error one and two, appellant claims his federal and state constitutional due process of law and due course of law rights were violated when the trial judge reviewed his PSI report prior to formally finding him guilty.  U.S. Const. amend. V, XIV; Tex. Const. art. I, ' 19.  Appellant does not argue on appeal that he is entitled to greater protection under the Texas Constitution than the federal constitution or that the Texas Constitution offers different levels of protection than the federal constitution; thus, we address these two points of error jointly.  See Muniz v. State, 851 S.W.2d 238, 251B52 (Tex. Crim. App. 1993); see also Jimenez v. State, 32 S.W.3d 233, 242 (Tex. Crim. App. 2000) (AThe 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.@).

On January 30, 2004, a preliminary plea hearing was held during which appellant entered a guilty plea to the offense of indecency with a child.  The trial judge advised appellant of the range of punishment for the offense, and appellant filed a motion with the court requesting community supervision.  The trial judge told appellant a PSI report would be compiled and presented to her prior to the sentencing proceedings and both sides would have an opportunity to review the PSI report and provide additional documentation and witnesses if desired prior to her decision on punishment.  At the conclusion of appellant=s preliminary plea hearing, the trial judge found sufficient evidence to substantiate appellant=s guilt but deferred entering a formal finding of guilt until the sentencing hearing. 

On April 8, 2003, appellant=s sentencing hearing was held.  Having reviewed the PSI report, the trial judge asked both sides if there were any objections to the PSI report before proceeding with sentencing.  Appellant and the State both responded they had no objections to the PSI report.

A.      Waiver

Appellant never objected to the trial court=s consideration of the PSI report before entering a formal finding of guilt.  Texas Rule of Appellate Procedure 33.1 provides that, in general, as a prerequisite to presenting a complaint for appellate review, the record must show a timely, specific objection and a ruling by the trial court. Tex. R. App. P. 33.1(a).  It is well-settled that almost every right, constitutional and statutory, may be waived by failing to object.  Smith v. State, 721 S.W.2d  844, 855 (Tex. Crim. App. 1986).  Thus, appellant has failed to preserve his first two points of error for appellate review.

Appellant contends he preserved error based on alleged implicit findings in State ex rel. Turner v. McDonald, 676 S.W.2d 375 (Tex. Crim. App.1984) (en banc), and  State ex. rel. Bryan v. McDonald, 662 S.W.2d 5 (Tex. Crim. App.1983) (en banc).  In the McDonald cases, the Texas Court of Criminal Appeals held a trial court=s examination of a PSI report prior to a determination of guilt or innocence violated the United States and Texas Constitutions.  Turner, 676 S.W.2d at 379; Bryan, 662 S.W.2d at 9.  In both cases, the same trial judge refused to refrain from viewing a PSI report prior to determining a defendant=s guilt or innocence and issuing a proposed assessment of punishment.  The district attorneys in both cases successfully sought writs of mandamus based on the trial judge=s conduct in refusing to refrain from viewing PSI reports prior to determining guilt or innocence and issuing a proposed assessment of punishment.  Turner, 676 S.W.2d at 375B76; Bryan 662 S.W.2d at 6.  However, unlike the McDonald cases, here the trial judge requested and considered the PSI report after appellant pled guilty and after appellant sought community supervision.^[1]  The McDonald cases do not address the issue of preserving error for appeal in a non-plea bargain situation where a trial court reviews a PSI report after the appellant has pled guilty,^[2] and appellant provides no additional authority to support this contention.  See id.

B.      Review of PSI Report

Even if appellant had properly preserved points of error one and two for appellate review, we still conclude appellant=s contention is without merit.  Section nine of article 42.12 of the Texas Code of Criminal Procedure specifically provides that a trial court may review a PSI report when the defendant has pled guilty:

(c)     The judge may not inspect a report and the contents of the report may not be disclosed to any person unless:

(1)     the defendant pleads guilty or nolo contendere or is convicted of the offense; or

(2)     the defendant, in writing, authorizes the judge to inspect the report.

Tex. Code Crim. Proc. Ann. art. 42.12, _ 9(c) (emphasis added).  In regard to this specific issue, this Court has held:

[B]ecause the record indicates that a finding of guilty was deferred until the [PSI] report was complete so that the trial court could consider deferred adjudication as an option, the trial court=s viewing of the report before a final pronouncement of guilt and sentencing did not violate appellant=s constitutional rights.

Blalock v. State, 728 S.W.2d 135, 138B39 (Tex. App.CHouston [14th Dist.] 1987, pet. ref=d); see Baldridge v. State, 77 S.W.3d 890, 892 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (holding appellant=s constitutional rights were not violated and his conviction was not void where a trial court reviewed a PSI report subsequent to appellant pleading guilty, signing a judicial confession, and stipulating to evidence of his guilt); Wissinger v. State, 702 S.W.2d 261, 263 (Tex. App.CHouston [1st Dist.] 1985, pet. ref=d) (holding where there is Ano evidence that the judge considered the [PSI] report or ordered it until the defendant had pleaded no contest, signed a judicial confession, and stipulated to the evidence of her guilt[,] the report could not have influenced the judge except in deciding the appropriate punishment@).

Appellant relies on the McDonald cases as authority for his argument that the trial court=s review of the PSI report prior to a formal finding of guilt rendered appellant=s conviction void.  However, besides these cases being distinguishable from the case at bar, as stated above, appellant=s reliance on these cases is improper for two additional reasons.  First, the court in State ex rel. Bryan v. McDonald stated the version of article 42.12 applicable to that case did not specifically allow a PSI report to be inspected prior to entering a formal finding on guilt, but it acknowledged article 42.12 subsequently was amended in 1983 to include an exception to allow for inspection of a report after a defendant pleads guilty.  662 S.W.2d at 7& n.1.  Second, State ex rel. Turner v. McDonald has been superseded by statute.  Whitelaw v. State, 29 S.W.3d 129, 134.  Thus, the McDonald cases do not support appellant=s contention of due process violations in the present case. 

Furthermore, unlike the McDonald cases, here, prior to the court=s review of the PSI report, appellant pled guilty, and there was no plea bargain.  The PSI report was not ordered until appellant requested community supervision, and appellant concedes the procedure followed by the trial court was beneficial to him and was a means for him to possibly avoid going to prison after entering a plea of guilty.  Moreover, the record shows the trial judge reviewed the PSI report after appellant pled guilty in conformance with the statute.  Tex. Code Crim. Proc. Ann. art. 42.12, _ 9(c).  Thus, the judge=s inspection of the PSI report could not have influenced the trial court=s finding of guilt.  Wissinger, 702 S.W.2d at 263.  Accordingly, the trial court=s review of the PSI report did not violate appellant=s constitutional rights to due process.

We overrule appellant=s first and second points of error.

II.       Constitutionality of Twenty-Year Sentence

In his third and fourth points of error, appellant argues the trial court committed reversible error in assessing punishment at confinement for twenty years.  He claims this punishment was in violation of his federal and state constitutional rights against cruel and unusual punishment.  See U.S. Const. amend VIII, XIV; Tex. Const. art. I, ' 13.  Appellant does not argue he is entitled to greater protection under the Texas Constitution or that the Texas Constitution offers different levels of protection than the federal constitution; thus, we address these two points of error jointly.  See Muniz, 851 S.W.2d at 251B52.  Further, there is no significant difference between the Eighth Amendment prohibition against cruel and unusual punishment and the Texas Constitution prohibition against cruel or unusual punishment.  Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997). 

A.      Waiver

Generally, Aan appellant may not assert error pertaining to his sentence or punishment where he failed to object or otherwise raise such error in the trial court.@  Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (en banc); see Tex. R. App. P. 33.1(a); Stewart v. LaGrand, 526 U.S. 115, 119 (1999) (holding Eighth Amendment protections can be waived in the capital context when not properly preserved through timely objection); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d) (holding appellant=s failure to raise a specific objection in the trial court as to the severity of the punishment assessed waived constitutional claims of cruel and unusual punishment).  Here, appellant did not raise an objection to the severity of his twenty-year sentence at the time of sentencing, and he did not specifically object to the severity of his sentence in his post-trial motions.  By not raising an objection in the trial court as to the severity of his punishment, appellant has waived appellate review of his claim of cruel and unusual punishment.

B.      Cruel and Unusual Punishment

Moreover, even if appellant had preserved error, we conclude appellant=s punishment does not constitute cruel and unusual punishment.  A[U]nder the United States Constitution, a state criminal sentence must be proportionate to the crime for which the defendant has been convicted.@  Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).  Punishment is Agrossly disproportionate to a crime@ when an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme.  Harmelin v. Michigan, 501 U.S. 957, 1004B06 (1991).  In reviewing the proportionality of a sentence, a court must first consider the gravity of the offense and the harshness of the penalty; if the court finds the sentence is grossly disproportionate to the appellant=s crime, then it may consider sentences imposed upon other criminals in the same jurisdiction and the sentences for the same crime in other jurisdictions.  Id.; Solem v. Helm, 463 U.S. 277, 290B92 (1983).^[3]  Where the punishment assessed is within the statutory range, it generally is not considered disproportionate or violative of federal or state constitutions.  Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Pequeno v. State, 710 S.W.2d 709, 711 (Tex. App.CHouston [1st Dist.] 1986, pet. ref=d).

Appellant pled guilty to indecency with a child, a second degree felony.  Tex. Pen. Code Ann. ' 21.11(a)(1).  The range of punishment for this offense is imprisonment for a term of no more than twenty years or less than two years with possible fines not to exceed $10,000.00.  Tex. Pen. Code Ann. ' 12.33(a) (Vernon 2003).  Appellant=s sentence of twenty years= confinement is within the range of punishment.  Further, the record and PSI report indicate appellant has abused and victimized two generations of women in his family, with little display of remorse prior to these proceedings.  Additionally, appellant does not provide any facts to support his claim of a disproportionate sentence.  Thus, we hold the sentence imposed is not grossly disproportionate to the offense, and, therefore, not unconstitutionally cruel and unusual.

          Accordingly, we overrule appellant=s third and fourth points of error.  

Conclusion

We affirm the judgment of the trial court.   

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed July 21, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

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

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^[1]  A[W]hen in the judge=s opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant=s guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision.@  Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(a) (Vernon Supp. 2005).

^[2]  Because the Texas Court of Criminal Appeals addressed the trial court=s Arefusal to refrain@ from viewing the PSI report prior to finding appellant guilty, we infer a timely objection was asserted to the trial court=s premature consideration of the PSI report, facts not present in the case at bar.

^[3]  In Solem v. Helm, the United States Supreme Court held a court=s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.  463 U.S. at 290B92.  It is questionable whether the Solem test is still viable in light of Harmelin v. Michigan, 501 U.S. 957 (1991).  See McGruder v. Puckett, 954 F.2d 313, 315B16 (5th Cir. 1992) (noting in Harmelin that five members of the Supreme Court rejected application of the Solem three-factor test, although seven of the justices supported an Eighth Amendment prohibition against grossly disproportionate sentences); see  Lackey v. State, 881 S.W.2d 418, 421 (Tex. App.CDallas 1994, pet. ref=d) (acknowledging the Supreme Court=s re-examination in Harmelin of its three-part analysis set forth in Solem).