Paul Joaquin Ponce v. the State of Texas

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00024-CR

PAUL JOAQUIN PONCE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court Potter County, Texas Trial Court No. 65,591-A, Honorable Dan L. Schaap, Presiding

August 17, 2022 ORDER DENYING MOTION TO ABATE Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant, Paul Joaquin Ponce, appeals the trial court’s revocation of his deferred

adjudication community supervision and the accompanying ten-year sentence for

aggravated sexual assault of a child.1 After adjudicating appellant guilty, the trial court

ordered preparation of a presentence investigation report (PSI) in accordance with article

37.07, section 3(d) of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC.

1 TEX. PENAL CODE ANN. § 22.021(a)(3)(B). ANN. art. 37.07, § 3(d). Appellate counsel attempted to obtain a copy of the PSI from the

community supervision department, trial counsel, and the prosecutor, to no avail.

Pending before this Court is a Motion to Abate by which appellant seeks

supplementation of the appellate record with a copy of the PSI. Appellate counsel

maintains that a copy of the PSI is necessary to provide appellant with effective

assistance of counsel by reviewing the entire record. For the reasons explained herein,

we deny the Motion to Abate.

The record shows that during the sentencing phase, the PSI was made available

to the trial court, trial counsel, and the prosecutor. The record does not reflect that the

trial court considered it in assessing punishment. Nor does it reflect that it was admitted

into evidence as part of the record developed at the hearing. This is critical since matters

outside the appellate record are beyond our review. See Delacerda v. Quintero, No. 07-

16-00081-CV, 2016 Tex. App. LEXIS 9932, at *3 n.2 (Tex. App.—Amarillo Sept. 6, 2016,

pet. denied) (mem. op.).

Appellant’s Motion to Abate is denied without prejudice to him providing further

information or authority, by 5:00 p.m. August 24, 2022, indicating that the PSI was

considered by the trial court, intended by the trial court to be part of the hearing record,

or susceptible to consideration by this Court if not admitted into evidence below.

Otherwise, appellant’s brief is due on or before August 30, 2022.

It is so ordered.

Per Curiam

Do not publish.