Sanders, Rashawn Jerome v. State

• Court: Court of Appeals of Texas
• Decided: January 12, 2006
• Docket: 14-04-00869-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed January 12, 2006

Affirmed and Memorandum Opinion filed January 12, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00869-CR

RASHAWN JEROME SANDERS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 964,382

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M E M O R A N D U M   O P I N I O N

Appellant Rashawn Jerome Sanders pleaded guilty to one count of aggravated assault with a deadly weapon.  Following his presentence investigation hearing, the trial court sentenced him to fifteen years in prison.  In two issues, appellant argues: (1) the trial court erred by reviewing the presentence report prior to issuing its verdict, and (2) the trial court should not have considered his presentence investigation report prior to assessing punishment, alleging it contained hearsay and evidence of innocence.  We affirm.

I.  Factual and Procedural Background

On October 5, 2003, appellant attended a party with his cousin, Wilfred Hayes, and two friends, James and Mike Bickam.  At some point in the evening, the host asked them to leave.  As the four left the party, a shot was fired from their vehicle that hit party guest Jason Hinojosa in the head, causing him severe injuries.  Officers from the Houston Police Department interviewed the host and three other guests.  Their investigation led to the identification of all four individuals in the vehicle.  When interviewed by the police, Hayes, James Bickam, and Mike Bickam identified appellant as the shooter.

Appellant was arrested and charged with aggravated assault with a deadly weapon.  He pleaded guilty, signed a waiver of his constitutional rights, and filed a motion for community supervision.  The court made no finding of guilt and ordered the preparation of a presentence investigation report.  Included in the report was the text of a written statement made by appellant as well as statements of the witnesses, as recorded by the investigator.  The report, which did not include a sentencing recommendation, was admitted at the presentence investigation hearing without objection or supplementation from either appellant or the State.  At the conclusion of the hearing, the trial court sentenced appellant to fifteen years in prison.

II.  Issues Presented

Appellant presents two issues for our review.  First, he argues the trial court violated his federal constitutional right to due process and his state constitutional right to due course of law by viewing the presentence investigation report before making a finding of guilt.^[1]  In his second issue, he contends the trial court should not have considered the presentence investigation report in making its sentencing determination because the report contained both hearsay and evidence of appellant=s innocence.

III.  Analysis

To present a claim for appellate review, it is a prerequisite that a complaint stating the specific grounds for the objection be made in the trial court.  Tex. R. App. P. 33.1(a).  With the exception of complaints involving systemic or absolute requirements, or rights that are only lost upon an expressed waiver, failure to comply with Rule 33.1 terminates appellant=s right to present an issue on appeal, regardless of whether the alleged right is derived from the constitution, a statute, or another source.  Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004) (en banc).

Appellant=s presentence investigation hearing began as follows:

THE COURT:  The Court made no finding of guilt and ordered a Presentence Investigation Report be prepared.  Both sides having had an opportunity to review the proposed Presentence Investigation Report, are there any objections or changes from the State?

THE STATE:  No, Your Honor.

THE COURT:  From the defense, [counsel]?

APPELLANT=S COUNSEL:  Nothing, Your Honor.

THE COURT:  All right.  Other than the PSI, [Mr. Prosecutor], is there any additional evidence from the State?

THE COURT:  State rests?

THE STATE:  State rests.

THE COURT:  [Counsel]?

Following the arguments of both the State and appellant, the trial court stated it became aware of appellant=s prior arrests from reading the presentence investigation report.  The trial court then concluded the hearing with the following statement:

THE COURT:  On your plea of guilty and the evidence introduced, I find you guilty of aggravated assault with a deadly weapon.  I assess your punishment at fifteen years in the Institutional Division.  Is there any reason I should not sentence your client, [counsel]?

APPELLANT=S COUNSEL:  No, Your Honor.

THE COURT:  Knowing of no legal reason, it is the order of this Court that you, [appellant], are adjudged to be guilty of aggravated assault with a deadly weapon and whose [sic] punishment is assessed at fifteen years . . . .

Appellant=s counsel made no additional statements at the hearing, nor did she supplement the record with any motions or requests that would make the trial court aware of the errors appellant now presents on appeal. 

The record indicates that appellant=s counsel was given an opportunity to contest both the alleged hearsay and evidence of innocence contained in the presentence investigation report, as well as the judge=s review of the report prior to rendering his verdict and issuing a sentence.  If the trial court did not have the opportunity to rule upon the proponent=s appellate rationale, the argument cannot be raised on appeal.  Reyna v. State, 168 S.W.3d 173, 178 (Tex. Crim. App. 2005).  Accordingly, appellant has failed to preserve both of his issues for our review.

Even had appellant had objected to both issues, however, a trial court does not violate a defendant=s constitutional rights when it reviews a presentence investigation report after the defendant has pleaded guilty and has filed a motion for community supervision.  Baldridge v. State, 77 S.W.3d 890, 832 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  These were the circumstances in the instant case.  Hence, we would conclude the trial court did not err by reviewing the report.  Concerning appellant=s second issue, the trial court is not precluded from considering a presentence investigation report merely because it includes hearsay.  Stancliff v. State, 852 S.W.2d 630, 632 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d).  The appellant bears the burden of proving that the information was materially inaccurate and that the judge relied on inaccurate information.  Id. (emphasis original). Because on this record, appellant could not have met his burden, we would overrule appellant=s second issue.

For the foregoing reasons, we affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed January 12, 2006.

Panel consists of Justice Fowler, Edelman, and Guzman.

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

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^[1]  See U.S. Const. amend. XIV '1; Tex. Const. art. I ' 19.  The term Adue process of law@ in the Fourteenth Amendment to the federal constitution and the term Adue course of law@ in our state constitution mean the same thing.  Jimenez v. State, 32 S.W.3d 233, 242 (Tex. Crim. App. 2000) (en banc).