Stacey Lavett Davis v. State

Opinion

Opinion issued May 12, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00216-CR

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Stacey Lavett Davis, Appellant

V.

The State of Texas, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Case No. 51537

MEMORANDUM OPINION

Appellant, Stacey Lavett Davis, was charged by indictment with fraudulent use or possession of identifying information.[1]  Appellant pleaded guilty without an agreed recommendation as to punishment.  After a presentence investigation report was prepared, the trial court assessed punishment at 2 years’ confinement in a state jail.  In two issues, appellant argues (1) the sentence imposed was based on erroneous information in the presentence investigation report and (2) the evidence was insufficient to support the trial court’s imposition of the maximum sentence allowed by law and violated the Eighth Amendment gross-disproportionality standard.

We affirm.

                                                                                                                                                                 Background

Appellant used another woman’s social security and driver’s license numbers in an application to rent an apartment.  After she failed to pay rent on the apartment, the amount owed was turned over to a collection agency.  As a result, the complainant became aware of the matter and notified the Fort Bend County Sherriff’s Office.  An investigation began that lead to appellant’s indictment.

Appellant pleaded guilty without an agreed recommendation as to punishment.  The trial court ordered a presentence investigation report and continued the punishment hearing until after the report was prepared.

At the punishment hearing, appellant stated that she had objections to certain factual information contained in the presentence investigation report.  The trial court told the parties that the objections could be raised during the course of the hearing.

The State introduced into evidence appellant’s written guilty plea, the presentence investigation report, and the lease appellant signed containing the fraudulent identifying information.  The State also presented the complainant’s testimony.  When the State offered the presentence investigation report, the trial court asked appellant if there were any objections.  Appellant’s counsel responded, “No objection, Your Honor.”

After the State rested, appellant did not present any witnesses or offer any other evidence.  Instead, appellant’s counsel stated he had “[o]nly argument, Your Honor, no witnesses.”  The trial court then proceeded without objection to closing arguments.  After the State gave its closing arguments, appellant’s counsel began his closing argument by stating for the first time what his objections were to certain factual information contained in the presentence investigation report.  Appellant’s counsel did not ask for and did not receive any ruling on his objections.

After closing arguments, the trial court assessed punishment at two years’ confinement in a state jail, the maximum confinement allowed in the applicable sentencing range.[2]

                                                                                                               The Presentence Investigation Report

In her first point of error, appellant argues that the sentence imposed was based on erroneous information in the presentence investigation report.  The State argues that this complaint was not preserved for appeal and any objections have been waived.  We agree.

When a presentence investigation report has been prepared, the defendant has the opportunity to “introduce testimony or other information alleging a factual inaccuracy in the investigation or report.”  Tex. Code Crim. Proc. Ann. art. 42.12 § 9(e) (Vernon Supp. 2010).  To preserve error for appellate review, the complaining party must timely and specifically object to the evidence and obtain a ruling. See Tex. R. App. P. 33.1(a); see also Tex. R. Evid. 103(a)(1).  Failure to object to the use of a presentence investigation report waives any complaints about the contents of the report.  Moore v. State, 672 S.W.2d 242, 243 (Tex. App.—Houston [14th Dist.] 1983, no writ) abrogated on other grounds by Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009).

Appellant specifically stated she had no objection to the introduction of the presentence investigation report into evidence.  After the State rested during the punishment hearing, appellant presented no testimony or other evidence relating to any errors in the report.  It was not until closing arguments that appellant identified any complaints about the accuracy of any information contained in the report.  Argument of counsel, however, is not evidence.  See Hutch v. State, 922 S.W.2d 166, 173 (Tex. Crim. App. 1996).  Nor did appellant attempt to obtain a ruling on any of her objections.  See Tex. R. App. P. 33.1(a); see also Tex. R. Evid. 103(a)(1).  Because no evidence was presented to establish any inaccuracies in the presentence investigation report and because appellant did not obtain any rulings on her objections to certain portions of the report, we hold that this issue has not been preserved for appeal and any objections have been waived.

We overrule appellant’s first point of error.

                                                                 Evidentiary Sufficiency of Assessing Maximum Punishment

In her second point of error, appellant argues the evidence was “insufficient to support the maximum sentence allowable by law” and her sentence violates “the Eighth Amendment gross-disproportionality standard.”

A.               Standard of Review & Applicable Law

“Generally, the factfinder’s decision of what particular sentence to assess is a ‘normative, discretionary function’ that does not depend on the resolution of specific facts.”  Jordan v. State, 256 S.W.3d 286, 291 (Tex. Crim. App. 2008).  The factfinder’s discretion to impose any punishment within the prescribed range is essentially unfettered.  Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006).  “Subject only to a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth Amendment gross-disproportionality review, a punishment that falls within the legislatively prescribed range, and that is based upon the sentencer’s informed normative judgment, is unassailable on appeal.”  Id. at 323–24.

Under the Eighth Amendment of 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.—Houston [14th Dist.] 2002, pet. ref’d).  We must first review the record to make a threshold comparison of the gravity of the offense against the severity of the sentence.  McGruder v. Pucket, 954 F.2d 313, 316 (5th Cir. 1992).  “Only if we infer that the sentence is grossly disproportionate to the offense will we then . . . compare the sentence received to (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions.”  Id. 

B.               Analysis

Appellant argues that her sentence is grossly disproportionate to the offense because the sentence was based on erroneous information in the presentence investigation report.  Because we have already overruled appellant’s argument concerning errors in the presentence investigation report, this cannot be a basis for determining gross-disproportionality in her sentence.  Additionally, we note that, although plaintiff alleges the trial court assessed “the maximum sentence allowable by law,” the trial court did not assess a fine against appellant even though the law allows for a fine up to $10,000.  See Tex. Penal Code Ann. § 12.35(b) (Vernon Supp. 2010).

The record reflects that appellant was charged in 1996 with the felony offense of theft of property, convicted, and placed on community supervision for the offense.  In 1999, appellant was convicted of the misdemeanor offense of theft by check.  In 2009, appellant was charged with forgery of a financial instrument, convicted, and placed on community supervision.

In the instant case, when appellant began her interview with the police, she denied that she had any involvement in obtaining the complainant’s personal information or that she even knew the information was on the application.  Later, she admitted to knowing the information was on the application but continued to deny that she had any involvement in obtaining the information.  Instead, she insisted that information was provided by the apartment manager working for the complex at the time.

Appellant was asked during the interview how she felt about her previous offenses.  Appellant responded that she thought her actions were necessary to get the things she wanted.  For the current offense, appellant admitted that she had only been concerned for herself and had not thought about how her actions would affect anyone else.  Appellant did state, though, that she was now remorseful for her actions.

The presentence investigation report concludes that appellant’s “risk factors for re-offending were high.”  The factors considered in assessing risk included numerous address changes within the previous year, numerous job changes within the previous year, and her prior adjudications of guilt.

The complainant testified that her credit rating had been affected when the collection agency reported the rental default.  She also testified that she and her husband had plans to buy a house, which required a good credit rating.  The complainant testified that she had to spend over a month trying to get the fraud corrected and that she remains afraid that appellant will misuse her information again or provide it to someone else who will misuse it.

Based on the foregoing, we hold that the trial court’s assessment of the maximum confinement of two years is not grossly-disproportionate to the offense.  We overrule appellant’s second point of error.

                                                                                                                                                                    Conclusion

We affirm the judgment of the trial court.

                                                                   Laura Carter Higley

                                                                   Justice

Panel consists of Justices Jennings, Higley, and Brown.

Do not publish.   Tex. R. App. P. 47.2(b).

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[1]           See Tex. Penal Code Ann. § 32.51(b) (Vernon Supp. 2010).

[2]           See Tex. Penal Code Ann. § 12.35(a) (Vernon Supp. 2010) (setting confinement range for state jail felony between 180 days and two years), § 32.51(c) (setting offense as state jail felony if number of items used is less than five).