Ybarra, Pedro v. The State of Texas--Appeal from 174th District Court of Harris County

Affirmed and Memorandum Opinion filed May 22, 2003.

In The

Fourteenth Court of Appeals

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NOS. 14-02-00667-CR and

14-02-00668-CR

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PEDRO YBARRA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause Nos. 877,098 and 877,097

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M E M O R A N D U M O P I N I O N

Pedro Ybarra appeals two convictions and sentences for intoxication manslaughter[1] (in causing the deaths of two individuals by driving while intoxicated) on the grounds that: (1) the trial court reviewed appellant s presentence investigation report ( PSI ) before finding him guilty; and (2) his 20-year sentence in each case constituted cruel and unusual punishment. We affirm.

 Presentence Investigation Report

Appellant s first two points of error for each offense contend that the conviction is void because the trial judge reviewed the PSI before finding him guilty, in violation of his federal and state constitutional rights to due process.[2] However, appellant failed to preserve this complaint by objecting in the trial court, either when the trial court announced it would defer a finding pending a PSI, or later at the PSI proceeding.[3] In addition, there is no due process violation where a trial judge inspects a PSI after a defendant has pled guilty.[4] Therefore, appellant s first and second points of error in both cases are overruled.

Cruel and Unusual Punishment

Appellant s third and fourth points of error for each offense argue that his 20-year sentence constitutes cruel and unusual punishment, in violation of the United States and Texas Constitutions. See U.S. Const. amends. VIII, XIV; Tex. Const. art. I, 13. Again, however, because appellant failed to object to his punishment in the trial court, this complaint presents nothing for our review. See Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996).

In addition, appellant s punishment does not fall outside the statutory range,[5] and appellant has not demonstrated that two concurrent 20-year sentences were not proportionate to the offenses of causing two deaths by driving while intoxicated.[6] Accordingly, appellant s third and fourth points of error are overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed May 22, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

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

[1] See Tex. Pen. Code Ann. 49.08 (Vernon 2003). Appellant pled guilty to each offense without an agreed punishment recommendation, and the trial court accepted the pleas and sentenced appellant to 20 years confinement for each offense, to run concurrently.

[2] See U.S. Const. amends. V, XIV; Tex. Const. art. I, 19; State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 7 (Tex. Crim. App. 1983).

[3] See Tex. R. App. P. 33.1(a); Vela v. State, 915 S.W.2d 73, 75 (Tex. App. Corpus Christi 1996, no pet.).

[4] See Vela, 915 S.W.2d at 75; Blalock v. State, 728 S.W.2d 135, 138 (Tex. App.--Houston [14th Dist.] 1987, pet. ref d); Wissinger v. State, 702 S.W.2d 261, 263 (Tex. App.--Houston [1st Dist.] 1985, pet. ref d). Nor is there any statutory violation for doing so. See Tex. Code Crim. Pro. Ann. art. 42.12, 9(c) (Vernon Supp. 2003). Moreover, following a guilty plea, deferring the proceeding without an adjudication of guilt, pending a PSI, is necessary to enable a trial court to consider placing a defendant on deferred adjudication community supervision, where it is applicable. See Tex. Code Crim. Proc. Ann. art. 42.12 5(a) (Vernon Supp. 2003).

[5] See Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972).

[6] See Solem v. Helm, 463 U.S. 277, 290 (1983) ( [A] criminal sentence must [also] be proportionate to the crime for which the defendant has been convicted. ).