Mitchell, Patrick v. The State of Texas--Appeal from 228th District Court of Harris County

Affirmed and Opinion filed October 16, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00896-CR

NO. 14-02-00897-CR

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PATRICK MITCHELL, Appellant

V.

THE STATE OF  TEXAS, Appellee

On Appeal from the 228th Judicial District Court

Harris  County,  Texas

Trial Court Cause Nos. 903,103 & 903,104

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

Appellant pleaded guilty to two indictments for aggravated robbery and the judge assessed punishment at 35 years= confinement in the Texas Department of Criminal Justice, Institutional Division. On appeal, he contends that (1) the trial judge=s review of a presentence report prior to a formal finding of guilt violated his state and federal rights to due process, and (2) the sentence violated his state and federal rights against cruel and unusual punishment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 24, 2002, appellant pleaded guilty to two indictments for armed robbery. The trial court made no finding of guilt at the time and deferred sentencing pending a presentence investigation.

A presentence report was prepared and presented to the trial court on August 19, 2002. At the sentencing hearing on February 19, 2002, the trial court made a formal finding of guilt and assessed punishment at confinement for thirty-five years.

DISCUSSION

In four points of error, appellant contends that (1) the trial judge=s review of a presentence report prior to a formal finding of guilt violated his state and federal rights to due process, and (2) the sentence violated his state and federal rights against cruel and unusual punishment.

In his first and second points of error, appellant contends that the trial court erred in reviewing his presentence report prior to a formal finding of guilt. Appellant cites State ex rel. Turner v. McDonald, 676 S.W.2d 375, 379 (Tex. Crim. App. 1984), and State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 7B8 (Tex. Crim. App. 1983), for the proposition that a conviction is void when the trial judge reviews a defendant=s presentence report prior to a finding of guilt. However, the facts of this case are more analogous to those in Wissinger v. State, in which the court stated:

The facts in the present case differ from the McDonald cases. In the instant case, there is no evidence that the judge considered the pre sentence investigation report or ordered it until the defendant had pleaded no contest, signed a judicial confession, and stipulated to the evidence of her guilt. Therefore, the report could not have influenced the judge except in deciding the appropriate punishment.

Wissinger v. State, 702 S.W.2d 261, 263 (Tex. App.CHouston [1st Dist.] 1985, pet. ref=d); see also Blalock v. State, 728 S.W.2d 135, 138 (Tex. App.CHouston [14th Dist.] 1987, pet.

ref=d). Because appellant had already pleaded guilty to the offenses, the presentence report could not have influenced the judge in determining guilt. See Wissinger, 702 S.W.2d at 263; Blalock, 728 S.W.2d at 138. Further, as appellant acknowledges, the procedure the trial court followed was potentially beneficial to him. By waiting until the presentence report was prepared instead of finding appellant guilty at the time of his plea, the trial court did not foreclose the possibility of deferred adjudication. The procedure thus did not violate appellant=s constitutional rights to due process. See Wissinger, 702 S.W.2d at 263; Blalock, 728 S.W.2d at 138B39. We overrule appellant=s first and second points of error.

In his third and fourth points of error, appellant contends that his sentence was not proportional to the offense committed and violates his state and federal rights against cruel and unusual punishment. Appellant did not raise these complaints in the trial court and has thus failed to preserve them for review. See Tex. R. App. P. 33.1(a); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (AThe constitutional right to be free from cruel and unusual punishment may be waived.@).

We also note that the sentence was within the statutory guidelines. AWhen punishment assessed by a judge or jury is within the statutory limits, it is not cruel and unusual within the constitutional prohibitions.@ Benjamin v. State, 874 S.W.2d 132, 135 (Tex. App.CHouston [14th Dist.] 1994, no pet.). The penalty prescribed for aggravated robbery is confinement for five to ninety-nine years or life, and a possible fine not to exceed $10,000. Tex. Penal Code Ann. ' 12.32. Appellant=s sentence of thirty-five years= confinement was within those limits. We overrule appellant=s third and fourth points of error. The judgment of the trial court is affirmed.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed October 16, 2003.

Panel consists of Justices Yates, Hudson, and Fowler.

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