Corey Rodee Whitting v. The State of Texas--Appeal from 349th District Court of County

NO. 12-02-00200-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

COREY RODEE WHITTING,

 
APPEAL FROM THE 349TH

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

 
HOUSTON COUNTY, TEXASMEMORANDUM OPINION

Corey Rodee Whitting ("Appellant") pleaded guilty to injury to a child. After revoking his community supervision, the court assessed punishment at ten years of imprisonment. In his sole issue, Appellant argues that the trial court erred by reviewing information from the presentence investigation prior to revoking his community supervision. We affirm.

 

Background

Appellant was charged by indictment with two counts of intentionally and knowingly causing bodily injury to a child younger than fifteen years of age on June 7, 1997. These offenses were third degree felonies. (1) On July 16, 1998, Appellant pleaded guilty to two counts of injury to a child as charged in the indictment, signed a judicial confession, waived a presentence report, and stipulated to evidence of guilt. Appellant was placed on deferred adjudication community supervision for ten years. On May 1, 2000, Appellant judicially confessed and stipulated to evidence that he violated community supervision. Accordingly, the judge revoked Appellant's community supervision, adjudicated Appellant guilty as charged in the indictment, and assessed punishment at ten years of imprisonment. Further, the court ordered Appellant to serve the first one hundred twenty days of his sentence in the State's boot camp. On October 30, 2000, the court ordered "shock probation," suspended further execution of the sentence, and placed Appellant on community supervision for ten years. However, on June 14, 2001, the State filed a motion to revoke Appellant's community supervision. On the same date, the court ordered preparation of a presentence investigation to "aid the Court in determining the appropriate punishment, if any, to assess in this case."

On June 14, 2002, the court held a hearing on the State's motion to revoke probation. Appellant pleaded "not true" to allegations in the motion to revoke. The court took judicial notice of the entire file in the cause. During the hearing, the district attorney referred to the presentence investigation in response to Appellant's request for new counsel, in eliciting testimony from a witness, and in closing arguments. Further, Appellant objected to testimony from a witness and, as grounds, stated that the information requested was included in the presentence investigation previously read by the judge. The court overruled Appellant's objection. After hearing the evidence and arguments of counsel, the court revoked Appellant's community supervision and assessed punishment at ten years of imprisonment. This appeal followed.

 

Presentence Investigation

Appellant contends that the trial court erred by reviewing information from the presentence investigation before revoking his community supervision and without his written authorization. The State argues that the trial court did not err because the presentence investigation was ordered after the adjudication of guilt and was only used to determine Appellant's punishment.

Applicable Law

Before imposition of a sentence by a judge in a felony case, the judge is required to order preparation of a written presentence investigation by the supervision officer. Tex. Code Crim. Proc. Ann. art. 42.12, 9(a) (Vernon Supp. 2003). This report must 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." Id. Further, the presentence investigation must contain a proposed client supervision plan. Id. However, the judge is not allowed to review the presentence investigation unless the defendant pleads guilty or nolo contendere or is convicted of the offense or authorizes, in writing, the judge to inspect the report. Tex. Code Crim. Proc. Ann. art. 42.12, 9(c) (Vernon Supp. 2003).

If a trial court reviews a presentence investigation report before a determination of guilt, it is a violation of the defendant's federal and state constitutional rights. Baldridge v. State, 77 S.W.3d 890, 892 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd) (citing State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 7 (Tex. Crim. App. 1983)). However, if there is no evidence a trial court analyzed the presentence investigation report until the defendant pleaded guilty or nolo contendere, signed a judicial confession, and stipulated to evidence of guilt, then a defendant's constitutional rights are not violated. Baldridge, 77 S.W.3d at 892; Blalock v. State, 728 S.W.2d 135, 138-39 (Tex. App.-Houston [14th Dist.] 1987, pet. ref'd); Wissinger v. State, 702 S.W.2d 261, 263 (Tex. App.-Houston [1st Dist.] 1985, pet. ref'd). Thus, in this instance, the report influences a trial court solely in its determination of a suitable punishment. Blalock, 728 S.W.2d at 138 (citing Wissinger, 702 S.W.2d at 263).

Analysis

Appellant pleaded guilty, signed a judicial confession, and stipulated to evidence of guilt. After an earlier violation of community supervision, Appellant was adjudicated guilty as charged in the indictment, punishment was assessed by the court, and sentence was imposed. Before the court granted "shock probation," Appellant had served part of his sentence The court ordered the presentence investigation eight months after "shock probation" was granted and more than a year after Appellant was adjudicated guilty. Thus, contrary to Appellant's argument, the presentence investigation was not examined by the court before a finding of guilt. Further, a revocation hearing on "shock probation" is not similar to an adjudication of guilt. Revocation of "shock probation" merely reinstates the execution of an imposed sentence. Armado v. State, 983 S.W.2d 330, 332 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd). Because the presentence report was not examined by the court prior to Appellant's adjudication of guilt or plea, the report could not have influenced the court except in determining punishment. Blalock, 728 S.W.2d at 138 (citing Wissinger, 702 S.W.2d at 263). Consequently, the trial court did not err by considering the presentence investigation before revoking community supervision. Accordingly, Appellant's sole issue is overruled.

 

Conclusion

Based upon our review of the record, we conclude that Appellant failed to show the trial court erred by reviewing information from the presentence investigation prior to revoking community supervision. Therefore, the judgment of the trial court is affirmed.

 

SAM GRIFFITH

Justice

 

Opinion delivered April 9, 2003.

Panel consisted of Worthen, C.J., and Griffith, J.

 
(DO NOT PUBLISH)

1. A person commits a third degree felony if he intentionally or knowingly causes bodily injury to a child. Tex. Pen. Code Ann. 22.04 (a), (f) (Vernon Supp. 2003). A "child" is defined as a person fourteen years of age or younger. Tex. Pen. Code Ann. 22.04 (c). The punishment range for a third degree felony is a term of not more than ten years or less than two years of imprisonment and, in addition, a fine not exceeding $10,000. Tex. Pen. Code Ann. 12.34 (Vernon 1994).