Telvin Muigai Kihiu v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 10, 2023
• Docket: 02-22-00263-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-22-00263-CR ___________________________

TELVIN MUIGAI KIHIU, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. 1686584D

Before Bassel, Womack, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION

Appellant Telvin Muigai Kihiu entered a nonnegotiated guilty plea to the

offense of aggravated robbery. After a presentence investigation (PSI) was

completed, the trial court sentenced Kihiu to ten years’ confinement. In one issue on

appeal, Kihiu complains that the “PSI prepared in this case erroneously advised the

sentencing court that it could sentence [Kihiu] to ‘shock’ probation.” Because Kihiu

waived the issue, we will affirm.

I. BACKGROUND

After Kihiu’s nonnegotiated guilty plea, the trial court ordered the Tarrant

County Community Supervision and Corrections Department (CSCD) to complete a

PSI. A CSCD officer did so and submitted a written PSI report to the trial court.

The “Supervision Plan” portion of the PSI report recommended that Kihiu be placed

on shock probation. See Tex. Code Crim. Proc. Ann. art. 42A.202 (extending trial

court’s plenary power for 180 days after imposing a sentence of imprisonment in non-

state-jail-felony cases and allowing the trial court in that time to suspend the sentence

and place defendant on probation).

At Kihiu’s sentencing hearing, the trial court admitted a copy of the PSI report

into the record. Kihiu did not object to its admittance. When asked by the trial court

if she wanted to make an opening argument, Kihiu’s attorney responded, “We’re

going to rest on the PSI and just argue.” No further evidence was admitted by either

Kihiu or the State. After arguments from both parties, the trial court sentenced Kihiu

2 to ten years’ confinement, citing Kihiu’s past failure to comply with the conditions of

misdemeanor probation as of particular importance in coming to this sentence.

Kihiu’s appeal followed.

II. DISCUSSION

In his sole issue, Kihiu argues that it was reversible error for the CSCD officer

to recommend shock probation because Kihiu was not legally eligible for shock

probation. See Tex. Code Crim. Proc. arts. 42A.054(11) (prohibiting judge-ordered

probation for the offense of aggravated robbery), 42A.202(b)(2) (allowing shock

probation only if defendant is otherwise eligible for probation). He argues that, by

recommending an unavailable sentence, the report misled the trial court as to what

sentence was legally available, “failed to recommend a probation plan to the [trial

court],” and “effectively told the [trial] court not to probate [Kihiu’s] sentence.” The

State counters that Kihiu waived this issue by failing to timely object and that,

notwithstanding the waiver, there is no record evidence that the trial court was misled

by the improper recommendation. Kihiu concedes that he did not object to the PSI

report but, citing Marin v. State, contends that the failure to include a proper

recommendation “could constitute structural error that may be raised for the first

time on appeal.” 851 S.W.2d 275, 279–80 (Tex. Crim. App. 1993), overruled on other

grounds by Cain v. State, 947 S.W.2d, 264 (Tex. Crim. App. 1997). We agree that Kihiu

waived the issue.

3 To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion sufficiently stating the specific grounds, if

not apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1);

Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). Further, the party

must obtain an express or implicit adverse trial-court ruling or object to the trial

court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State, 595 S.W.3d 216, 223

(Tex. Crim. App. 2020).

There are some exceptions to this rule. In Marin, the Court of Criminal

Appeals outlined three error categories that may be raised for the first time on appeal:

those related to (1) systemic or structural requirements, (2) waivable-only rights, and

(3) rights implemented by request. Marin, 851 S.W.2d at 279. Systemic or structural

errors include those related to personal jurisdiction, subject matter jurisdiction,

statutory compliance with the separation of powers doctrine, prohibitions against ex

post facto laws, and constitutional restraints on certain trial court comments. Saldano

v. State, 70 S.W.3d 873, 888–89 (Tex. Crim. App. 2002); Herrera v. State, 599 S.W.3d 64,

68 (Tex. App.—Dallas 2020, no pet.). Waivable-only rights include the rights to

assistance of counsel, trial by jury, and ten-days’ notice to prepare for trial. Saldano,

70 S.W.3d at 888; see Aldrich v. State, 104 S.W.3d 890, 895–96 (Tex. Crim. App. 2003).

Kihiu cites no case, and we have found none, holding that a PSI report

submitted to a trial court that includes a probation recommendation not legally

allowable constitutes structural or waivable error that need not be preserved by

4 objection. To the contrary, this court and our sister courts have consistently held that

PSI-related errors—even when they may be constitutional violations—require specific

objections to preserve error. E.g., Collins v. State, 378 S.W.3d 629, 630 (Tex. App.—

Houston [14th Dist.] 2012, no pet.) (holding that alleged Fifth Amendment violations

related to PSI were not structural error and were waived for failure to object); Reyes v.

State, 361 S.W.3d 222, 229 (Tex. App.—Fort Worth 2012, pet. ref’d) (same); see

Herrera, 599 S.W.3d at 68 (collecting cases).

Thus, Kihiu’s alleged error does not constitute a structural or waivable error.

Because he did not object in any way to the PSI with the trial court, we hold that he

failed to preserve the issue, which leaves nothing for our review.

III. CONCLUSION

The trial court’s judgment is affirmed.

/s/ Brian Walker

Brian Walker Justice

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

Delivered: August 10, 2023