Brown, Aaron Henley v. State ( 2007 )

Affirmed and Memorandum Opinion filed February 1, 2007

Affirmed and Memorandum Opinion filed February 1, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-00503-CR

NO. 14-05-00504-CR

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AARON HENLEY BROWN, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause Nos. 964,842 & 1005800

M E M O R A N D U M   O P I N I O N

In this consolidated appeal, appellant, Aaron Henley Brown, challenges his convictions for (1) possession with intent to deliver cocaine; and (2) possession of cocaine.  Tex. Health & Safety Code Ann. '' 481.112 & 481.115 (Vernon 2003). We affirm.

Factual and Procedural Background

  In cause number 964842, appellant was charged with the unlawful possession of cocaine with the intent to deliver. Tex. Health & Safety Code Ann. '481.112(d). The charge was enhanced by a prior felony conviction for possession of a controlled substance. Tex. Penal Code Ann. ' 12.42(c)(1) (Vernon 2003). In cause number 1005800 appellant was charged with possession of cocaine. Tex. Health & Safety Code Ann. '481.115(b).  During a hearing at which no court reporter was present, appellant pled Aguilty@ in both cases without a recommendation as to punishment. The trial court accepted the plea and deferred the assessment of punishment until after the completion of a presentence investigation report (APSI report@). At the conclusion of the presentence investigation hearing, the trial court assessed punishment as follows: (1) confinement in prison for 20 years on the possession with intent to deliver charge; and (2) confinement in a state jail facility for 18 months on the possession charge. Appellant did not file a motion for new trial, but instead immediately appealed his conviction and sentence.

Discussion^[1]

A.      Did the Trial Court Violate Appellant=s State and Federal Constitutional Right to Due Process of Law?

In his first and second issues on appeal, appellant contends his conviction is void under the United States and Texas Constitutions because the trial court reviewed appellant=s PSI report prior to formally entering a finding of guilt. U.S. Const. amend. V, XIV; Tex. Const. art. I, ' 19. The State argues appellant waived these issues as he did not object to the trial court=s consideration of the PSI report. We agree with the State.

To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a). It is well-established 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); see also Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver of rights under Texas Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver of rights under United States Constitution); Wissinger v. State, 702 S.W.2d 261, 265 (Tex. App.CHouston [1st Dist.] 1985, pet. ref=d) (waiver of due process claim).

Appellant argues the trial court=s alleged error in reviewing the PSI report prior to a  formal finding of guilt cannot be waived as a result of implied holdings 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). The McDonald cases do not support appellant=s argument as they 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. As appellant cites no additional authority to support his argument he did not waive these issues, and the McDonald cases do not address this issue, we hold appellant waived issues one and two as he did not raise them before the trial court.

          Even if appellant had preserved these issues for appellate review, the result is the same as his complaints are without merit. Section 9 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 [PSI] report and the contents of the [PSI] 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) (Vernon Supp. 2006).

In addition, we have addressed this issue before. This Court previously held that a defendant=s constitutional rights were not violated where there was no evidence the judge considered the PSI report until after the defendant had pled guilty, signed a judicial confession, and stipulated to the evidence of his guilt. Baldridge v. State, 77 S.W.3d 890, 892 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). There is no evidence in the record before us the trial court prematurely considered the PSI report. Appellant=s constitutional rights were not violated, and his convictions are not void. See id. We overrule appellant=s first and second issues.

B.      Do Appellant=s Sentences Violate the Prohibition Against Cruel and Unusual Punishment?

In his third and fourth issues, appellant argues that the sentences of 18 months in a state jail and 20 years in prison constitute cruel and unusual punishment under both the United States and Texas Constitutions as they are disproportionate to the offenses committed. U.S. Const. amend. VIII; Tex. Code Crim. Proc. Ann. art. 1.09 (Vernon 2005); Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009, 77 L. Ed. 2d 637 (1983). The State again responds that appellant waived this issue as appellant never objected in the trial court to his sentence. Once again, we agree with the State.

Appellant failed to preserve these complaints for review by not raising them in the trial court. Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court. Id. citing Tex. R. App. P. 33.1(a). Appellant did not object to the sentences as violating his constitutional rights to be free from cruel and unusual punishment at the time they were announced nor did he raise these arguments in a post-trial motion. The constitutional right to be free from cruel and unusual punishment may be waived. Id. citing Solis v. State, 945 S.W.2d 300, 301 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d).

Even if appellant had preserved these issues for appellate review, the sentences imposed do not constitute cruel and unusual punishment. The legislature has the power to define crimes and assess punishment. Sompract v. State, No. 14-02-00271-CR, 2003 WL 297716, at *2 (Tex. App.CHouston [14th Dist.] Feb. 13, 2003, pet. ref=d) (mem. op., not designated for publication) citing Jacobs v. State, 80 S.W.3d 631, 633 (Tex. App.CTyler 2002, no pet.). Punishment that falls within the statutory guidelines is not excessive. Id. As  long as the punishment assessed by the judge or jury is within the limits prescribed by statute, the punishment is not cruel and unusual within the constitutional prohibition. Id. citing Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972).

Appellant was convicted of possession of less than one gram of cocaine, a state jail felony, making the range of punishment 180 days to two years in a state jail with a fine not to exceed $10,000. Tex. Penal Code Ann. ' 12.35; Tex. Health & Safety Code Ann. '481.115. Appellant was also convicted of possession with intent to deliver less than 200 grams of cocaine, a first-degree felony with a prior felony enhancement, making the range of punishment 15 to 99 years in prison with a fine not to exceed $10,000. Tex. Penal Code Ann. ' 12.42(c)(1); Tex. Health & Safety Code Ann. '481.112. The trial court assessed punishment at 18 months in a state jail and 20 years in prison with no fine in either case. The sentences were within the statutory limits, and therefore were not cruel and unusual punishment. Sompract, No. 14-02-00271-CR, 2003 WL 297716, at *2. We overrule appellant=s third and fourth issues.

C.      Did the Trial Court Err When It Refused to Sua Sponte Withdraw Appellant=s Guilty Plea?

In his fifth issue in appellate cause number 14-05-00503-CR, appellant argues the trial court erred in failing to sua sponte withdraw his guilty plea. We disagree.

A trial court is not required to withdraw a guilty plea sua sponte and enter a plea of not guilty when the defendant enters a plea of guilty before the court, after waiving a jury, even if evidence is thereafter adduced that either makes his innocence evident or reasonably and fairly raises an issue as to guilt. Chowdhury v. State, 2003 WL 1738414, at *1 (Tex. App.CHouston [14th Dist.] April 3, 2003, pet. ref=d) (mem. op., not designated for publication) citing Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978). It is the trial court=s duty to consider the evidence submitted and, as the trier of fact, the court may find the defendant guilty of a lesser offense and assess the appropriate punishment, or it may find the defendant not guilty. Id. Therefore, it would serve no valid purpose for the trial court to withdraw the guilty plea and enter a not guilty plea when the defendant enters a plea of guilty before the trial court after waiving a jury. Id. citing Solis v. State, 945 S.W.2d at 303. Here, appellant waived his right to a jury trial and pled guilty, therefore the trial court was not required to sua sponte withdraw the appellant=s guilty plea.  We overrule appellant=s fifth issue on appeal.

Conclusion

Having overruled all of appellant=s issues, we affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed February 1, 2007.

Panel consists of Justices Anderson, Hudson, and Guzman.

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

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^[1]  Appellant filed separate briefs in each cause, however, the first four issues are virtually identical in both briefs. In appellate cause number 14-05-00503-CR, trial court cause number 964842, appellant raised a fifth issue that is not found in his other brief. However, because the issues raised are so similar, we address the common issues in both cause numbers together.