Roberts, Wendy Marie v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Opinion filed July 18, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01033-CR

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WENDY MARIE ROBERTS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 870,908

O P I N I O N

Appellant entered a plea of guilty without an agreed recommendation to the offense of aggravated robbery. She was convicted and the trial court assessed punishment at confinement for five years in the Texas Department of Criminal JusticeCInstitutional Division. In two points of error, appellant claims the trial court violated her federal and state constitutional rights by sentencing her without affording her an opportunity to present evidence in mitigation of punishment. We affirm.

After accepting appellant s guilty plea, the trial court granted appellant s request for a pre-sentence investigation (PSI). Following preparation of the PSI report, the trial court began appellant s sentencing hearing as follows, All right. Wendy Roberts. PSI it s not in front of me at the moment, on my desk in the back. Do you have anything to add or subtract to it? Appellant s trial counsel then pointed out that appellant s plea had been reduced to robbery from aggravated robbery. The court noted the reduction, then asked if there were anything else to add. The prosecutor stated he did not see anything else. Defense counsel did not respond. The trial court then asked the lawyers for argument. Defense counsel and the prosecutor presented argument, after which the trial court found appellant guilty and pronounced sentence. Following pronouncement of sentence, the court asked appellant if she had anything to say in bar of sentence. Appellant stated that she understood what she did was wrong and requested probation, which was denied.

In two points of error, appellant complains of the trial court=s failure to allow her to present evidence at the sentencing hearing. A defendant is entitled to present evidence as to any matter the court deems relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07 ' 3 (Vernon Supp. 2001). A trial court is required to afford a defendant an opportunity to present evidence regarding punishment after the defendant has been found guilty. Borders v. State, 846 S.W.2d 834, 835-36 (Tex. Crim. App. 1992). If a PSI is ordered, the trial court will consider the PSI and the evidence adduced at the punishment hearing before assessing punishment. Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(d) (Vernon 1995).

Although the trial court conducted a punishment hearing, appellant complains she was not allowed to present testimony or other evidence in mitigation of punishment. Appellant, however, failed to object to the trial court s failure to allow evidence. Further, appellant did not complain about the lack of opportunity to present evidence concerning punishment in a motion for new trial. Therefore, appellant has failed to preserve this issue for appellate review. See Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999); Salinas v. State, 980 S.W.2d 520, 521 (Tex. App.CHouston [14th Dist.] 1998, pet. ref d).

Moreover, it appears from the record before us the trial court afforded appellant the opportunity to present evidence. The trial court asked twice whether the parties had anything to add or subtract to the PSI report. Appellant responded with changes to the first request, but did not respond to the second request. Therefore, appellant was afforded the opportunity to object or present evidence, but failed to do so. Appellant s two points of error are overruled.

The judgment of the trial court is affirmed.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Opinion filed July 18, 2002.

Panel consists of Justices Hudson, Fowler, and Edelman.

Do Not Publish C Tex. R. App. P. 47.3(b).