No. 01-02-01038-CR
Opinion issued November 18, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.4.
On Appeal from the 179th District Court, Harris County, Texas, Trial Court Cause No. 875674.
Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
EVELYN V. KEYES, Justice.
Appellant, Vincent Jerome Lee, pleaded guilty to the felony offense of forgery of a commercial instrument. The trial court assessed his punishment at 270 days' confinement in state jail. In five points of error, appellant argues that (1) the State violated a plea bargain agreement by arguing that appellant should not receive community supervision; (2) the trial court violated appellant's federal and state constitutional rights to due process of law by reviewing the pre-sentencing investigation report (PSI) prior to finding appellant guilty; and (3) the 270 days' confinement constituted cruel and unusual punishment under the federal and state constitutions. We affirm.
Background
In April 2001, appellant attempted to pass a forged check through a Chase Bank drive through. The bank teller notified the security guard, an off-duty police officer. The security guard approached appellant and asked him to come into the bank, where he directed appellant to a conference room. At this point, appellant became upset and attempted to run from the bank. The security guard wrestled with appellant, but appellant was able to get away. The security guard and other police officers searched for appellant nearby, but did not find him. However, appellant had left an identification card at the bank, which the police later used to find and arrest him. Appellant pleaded guilty to forgery of a commercial instrument, without a recommendation as to punishment. He signed plea papers, made a judicial confession, waived his right to a jury trial, and stipulated to the evidence against him. He also signed and initialed admonishments acknowledging his understanding of the consequences of his plea. The court found that appellant's plea was free and voluntary. Appellant requested community supervision, and the trial court ordered a PSI. At the punishment hearing, the trial judge found appellant guilty and allowed him to make a statement. The court had before it the PSI, which showed that appellant had prior convictions dating back to 1980 for theft, robbery with bodily injury, and possession of a weapon. Appellant stated that he was trying to put his life back together; he had gotten married, enrolled in a GED course, and changed his conduct. He asked the court to grant him community supervision. The State responded that "[W]e feel this defendant has already had two bites or three bites at the apple. He was unsuccessful in his prior probation. He messed up the life of the complaining witness in this case. We feel he is not eligible for probation and should not be put back out." The person whose check was forged stated that he was forced to obtain new checking and routing numbers. The trial court sentenced appellant to 270 days' confinement. Discussion
Plea Bargain Violation In his first point of error, appellant contends he had a plea bargain agreement with the State, which the State violated by arguing against community supervision to the trial judge. The record demonstrates that appellant pleaded "guilty" to the charge against him, "w/o agreed rec; PSI ordered," i.e., without an agreed recommendation as to punishment. Appellant urges this Court to interpret the notation on the docket sheet to mean there was an agreement that the State would not make a recommendation during the punishment phase. The State argues, correctly, that the notation should be understood to mean that the parties did not have an agreed punishment recommendation and that punishment would be determined by the court following preparation of a PSI and a hearing. See Tex. Code Crim. Proc. Ann. arts. 37.07, 42.12(a) (Vernon 2003). Appellant's argument is without merit. We overrule appellant's first point of error. PSI In his second and third points of error, appellant argues that his conviction is fundamentally defective because the trial court violated his federal and state constitutional rights to due process of law by reading the PSI prior to finding him guilty. A defendant's rights are not violated where the evidence shows that the judge did not consider the PSI until after the defendant had pled guilty or nolo contendere, signed a stipulation of evidence, and made a judicial confession. See Tex. Code Crim. Proc. Ann. art. 42.12 § 9(c) (Vernon Supp. 2004-2005); Wissinger v. State, 702 S.W.2d 261, 263 (Tex.App.-Houston [1st Dist.] 1985, pet. ref'd). Here, the trial judge did not order a PSI until after appellant pleaded guilty and it was not created until after appellant stipulated to the evidence and made a judicial confession. The trial judge did not violate appellant's state or federal constitutional due process rights. We overrule appellant's second and third point of error. Cruel and Unusual Punishment In his fourth and fifth points of error, appellant argues that his sentence violates his state and federal constitutional rights against cruel and unusual punishment because, in light of the unique facts in his case, 270 days' confinement is disproportionate to the offense. Most constitutional and statutory rights, including the right to be free from cruel and unusual punishment, can be waived by failing to preserve the error. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Solis v. State, 945 S.W.2d 300, 301 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). Here, appellant did not make a request, object, or file a motion asserting that his punishment was cruel and unusual as required by the Rules of Appellate Procedure. Tex.R.App.P. 33.1(a)(1). Thus, appellant did not preserve error for appellate review. See Curry v. State, 910 S.W.2d 490, 497 (Tex.Crim.App. 1995); Steadman v. State, 31 S.W.3d 738, 742 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). We overrule appellant's fourth and fifth points of error. We affirm the trial court's judgment.