Eddie Lee McRoy, Jr. v. The State of Texas--Appeal from 124th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00146-CR
______________________________
EDDIE LEE MCROY, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 32977-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

On May 22, 2006, Eddie Lee McRoy, Jr., waived his right to a jury trial and pled guilty to possessing more than five, but less than fifty, pounds of marihuana. See Tex. Health & Safety Code Ann. 481.121(b)(4) (Vernon 2003). The trial court then ordered the preparation of a presentence investigation (PSI) report and rescheduled the case for trial on a later date. Apparently, during his interview with the community supervision officer who prepared the PSI report, McRoy admitted he had recently used marihuana. This admission was noted in the PSI report.

McRoy subsequently waived his right to have a jury assess punishment and instead submitted the issue to the trial court without the benefit of a negotiated plea agreement. The trial court assessed McRoy's punishment at four years' imprisonment.

McRoy now appeals, raising a single point of error. He contends the trial court erred by considering an admission contained in the PSI report that he had used marihuana during the pendency of the underlying charge.

During the punishment hearing, McRoy did not object to the contents of the PSI report. McRoy did, however, acknowledge that the PSI report was being considered by the trial court in determining an appropriate sentence. In fact, McRoy's counsel stated, "Your Honor, I know the pre-sentence report is before the Court as well as all other documents. We have nothing to add beyond what's already before the Court." In his closing argument, McRoy's counsel made several references to the PSI report, including pointing out that McRoy had a stable job as a mechanic and that he is supporting a wife and three children.

In pronouncing sentence, the trial court revealed its rationale for not granting probation:

Yes, he [McRoy] has a job in Mississippi. That's good. He's got children, young children. That's good. But what's bad? The bad is the Mississippi matter. Two years of unsupervised probation. What's worse? The crime that he committed, serious crime. Trying to bring dope through your county and my county.

 

But what dictates even more strongly against granting probation, and I considered probation, I'm going to reject it, because what I saw on that pre-sentence, it has to do with using marijuana.

 

On the 14th day of May, 2006, some two weeks before he was scheduled to come and be tried on this indictment, did he learn his lesson about the consequences that flow from illegal conduct? No. Because he committed a new crime. I'm sure wherever that marijuana was consumed it was a crime. That's not the type of person that ought to be placed on probation and I'm not going to do it; that's pure and simple.

 

McRoy did not object to the trial court's comment about McRoy's using marihuana eight days before this hearing. Nor did McRoy object to either the PSI report's contents or the trial court's consideration of the same during the sentencing hearing. See Tex. Code Crim. Proc. Ann. art. 42.12, 9(e) (Vernon Supp. 2006) ("judge shall allow the defendant or his attorney to comment on a presentence investigation report and, with the approval of the judge, introduce testimony or other information alleging a factual inaccuracy in the investigation or report").

It is well settled that an appellant can waive error if he or she does not object to the trial court's failure to order a PSI before imposing sentence. See Eddie v. State, 100 S.W.3d 437 (Tex. App.--Texarkana 2003, pet. ref'd); Buchanan v. State, 68 S.W.3d 136 (Tex. App.--Texarkana 2001, no pet.). It only stands to reason that, if an appellant can waive error by not objecting when a trial court does not order a PSI, an appellant can also waive error by not objecting to the trial court's consideration of a PSI report's contents. Here, McRoy did not object, despite being given several opportunities to raise such a challenge. Accordingly, we conclude McRoy has not preserved this issue for appellate review.

We affirm the trial court's judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: March 19, 2007

Date Decided: April 12, 2007

 

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