Charles Edward Guidroz v. The State of Texas--Appeal from Criminal District Court of Jefferson County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00239-CR

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CHARLES EDWARD GUIDROZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 252nd Judicial District Court

Jefferson County, Texas

Trial Court No. 88493

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Charles Edward Guidroz complains the trial court violated his Fifth Amendment protection against self-incrimination. We find Guidroz failed to preserve this issue for review and affirm the trial court's judgment.

On August 14, 2003, Guidroz was charged by two indictments with aggravated sexual assault of a child and aggravated kidnapping. Pursuant to a negotiated plea agreement, which did not address punishment, Guidroz pled guilty to the lesser-included offense of sexual assault of a child, // and the State dismissed the aggravated kidnapping charge. The trial court accepted Guidroz' guilty plea and scheduled sentencing for October 3, 2003, to allow a presentence investigation (PSI) report to be prepared. See Tex. Code Crim. Proc. Ann. art. 42.12, 9(g) (Vernon Supp. 2004).

Rebecca Isles prepared the PSI report in this case. Her report included information gathered from reviewing various police reports, witness statements, and the district attorney's file. At the punishment hearing, Guidroz objected to several portions of the PSI report. As it relates to his appeal, Guidroz objected to the report's inclusion of results from a "Static 99" test. // The results from the Static 99 test suggested Guidroz posed a "high risk" for committing another sexual offense in the future.

The trial court overruled Guidroz' objections to the Static 99 test, and presumably considered it when sentencing Guidroz. On appeal, Guidroz contends the trial court violated his Fifth Amendment right against self-incrimination by admitting the results of the Static 99 test during the punishment phase of the trial. See U.S. Const. amend. V.

To preserve a complaint for appellate review,

the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context . . . .

Tex. R. App. P. 33.1(a). For example, objecting to a witness' testimony on the basis of hearsay will not preserve for appeal a Confrontation Clause objection. Paredes v. State, No. 74,293, 2004 WL 57432 (Tex. Crim App. Jan. 14, 2004).

In his objection to the trial court, Guidroz did not assert the Static 99 test violated his Fifth Amendment protection against self-incrimination. And from the context of the ensuing testimony from Isles, it is clear Guidroz' attack on the Static 99 test being admitted into evidence was not based on a Fifth Amendment violation, but instead based on Isles' reliance on the police report in determining the proper answers that would ultimately contribute to Guidroz' "high risk" score. Thus, Guidroz' generalized objection in the trial court was insufficient to preserve his appellate claim of constitutional error.

Moreover, Article 42.12, Section 9A of the Texas Code of Criminal Procedure requires the trial court to order a report that evaluates a proposed course of conduct or rehabilitation.

If the defendant is a sex offender, the judge shall direct a supervision officer approved by the community supervision . . . department . . . to evaluate the appropriateness of, and a course of conduct necessary for, treatment, specialized supervision, or rehabilitation of the defendant and to report the results of the evaluation to the judge. The judge may require the evaluation use offense-specific standards of practice adopted by the counsel and may require the report to reflect those standards. The evaluation shall be made after conviction and before entry of the final judgment, or, if requested by the defendant, after arrest and before conviction.

Tex. Code Crim. Proc. Ann. art. 42.12, 9A(c) (Vernon Supp. 2004) (emphasis added).

In this case, Isles used the Static 99 test as one component of her multifaceted case evaluation in making a rehabilitation recommendation to the trial court. An offender's likelihood of recidivism is relevant when considering an appropriate course of rehabilitation. As such, the trial court did not err by adhering to the statutory requirements of Article 42.12, Section 9A and considering the results of the Static 99 test.

For the reasons stated, we affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: March 31, 2004

Date Decided: April 1, 2004

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