William Charles Steele v. The State of Texas--Appeal from 1st District Court of Jasper County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-02-183 CR
____________________
WILLIAM CHARLES STEELE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 1st District Court
Jasper County, Texas
Trial Court No. 9233JD
MEMORANDUM OPINION

Appellant William Charles Steele was indicted for aggravated sexual assault. The State and Steele agreed to proceed on the lesser-included offense, and Steele pleaded guilty to sexual assault. The trial court sentenced Steele to twenty years confinement in the Institutional Division of the Texas Department of Criminal Justice and imposed a $10,000 fine. Steele appeals with two issues related to the sentencing hearing. The State concedes error on the second issue.

In issue one, Steele says the trial court erred by admitting the victim's statement into evidence during the punishment phase. A typed statement of the victim's recounting of the events during the offense is contained in the pre-sentence investigation report ("PSI") ordered by the trial court at the conclusion of the guilty plea hearing. Steele claims the victim's statement was hearsay and should not have been admitted. Steele claims the trial court's admission of the hearsay statement resulted in a violation of his Sixth Amendment right to confront the witness.

Pursuant to statute, the PSI report may include the "circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge." Tex. Code Crim. Proc. Ann. art. 42.12, 9(a) (Vernon Supp. 2003). Article 37.07 expressly authorizes, for general punishment assessment purposes, the trial judge's consideration of a PSI report before sentencing. See Tex. Code Crim. Proc. Ann. art. 37.07, 3(d) (Vernon Supp. 2003). The information from the victim falls within the categories of "circumstances of the offense" and "any other information relating to the defendant or the offense" and is properly included in the report. A trial court may consider hearsay information in a PSI report. See Fryer v. State, 68 S.W.3d 628, 631 (Tex. Crim. App. 2002)(citing Brown v. State, 478 S.W.2d 550, 551 (Tex. Crim. App. 1972)). The information from the victim was properly included in the PSI report, and by law the trial judge may consider its contents. Appellant objected to the contents of the PSI report only on hearsay grounds. No objection on constitutional grounds was made; the objection is waived. See Tex. R. App. P. 33.1(a); Judd v. State, 923 S.W.2d 135, 138-39 (Tex. App.--Fort Worth 1996, pet. ref'd) (Trial objection of hearsay is not same ground as appellate claim of denial of right to confront witness; error is not preserved.). Issue one is overruled.

In issue two, Steele claims the trial court erred in entering a judgment finding him guilty of aggravated sexual assault when the trial court accepted his plea of guilty to the lesser-included offense of sexual assault, a second degree felony. See Tex. Pen. Code Ann. 12.33, 22.011(f) (Vernon 1994 & Supp. 2003). Steele asks us to reform the judgment. The State concedes error.

An appellate court may reform a judgment resulting from a clerical error. See Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Nicholas v. State, 56 S.W.3d 760, 767 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd). At the sentencing hearing, the trial judge stated the offense was sexual assault, a second degree felony, and sentenced Steele within the range for that offense. The written judgment correctly recites the punishment meted out, but incorrectly recites the offense as being aggravated sexual assault. We sustain Steele's second issue and reform the judgment to reflect a conviction for sexual assault. See Tex. R. App. P. 43.2(b); Nicholas, 56 S.W.3d at 767.

AFFIRMED AS REFORMED.

PER CURIAM

 

Submitted on January 8, 2003

Opinion Delivered January 15, 2003

Do Not Publish

 

Before McKeithen, C.J., Burgess, and Gaultney, JJ.