Treston Loggins v. State of Texas ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-01-030 CR ____________________

TRESTON LOGGINS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 356th District Court Hardin County, Texas Trial Cause No. 14171

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O P I N I O N

Treston Loggins pleaded no contest pursuant to a plea agreement to aggravated sexual assault of a child. The trial court deferred adjudication of guilt and placed Loggins under community supervision for ten years. Subsequently, the State moved to adjudicate guilt. Loggins pleaded true to three counts of the State's motion. The trial court proceeded to find Loggins guilty and sentenced him to twenty years' imprisonment in the Texas Department of Criminal Justice, Institutional Division. Loggins filed a motion for new trial which the trial court denied. Loggins appeals raising two points of error.

Loggins first contends the trial court's failure to have a pre-sentence investigation report (PSI) prepared prior to placing appellant under community supervision is reversible error. Next, Loggins claims the trial court abused its discretion in failing to hold an evidentiary hearing on his motion for new trial alleging his original plea of nolo contendere was involuntary.

A defendant placed on deferred adjudication is required to raise issues relating to the original plea proceeding in an appeal taken when the deferred adjudication community supervision is first imposed. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). Such issues can not be raised following revocation of the deferred adjudication. Id. An exception to the general rule is a void judgment, which may be attacked at any time. See Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001). Further, voluntariness of a plea subject to Tex. R. App. P. 25.2(b)(3) may not be raised on appeal. See Cooper v. State, 45 S.W.3d 77, 83 (Tex. Crim. App.2001).

Loggins argues the failure to have a PSI prepared is an illegal act which renders the judgment void. We disagree. The right to a PSI report does not rise to the level of importance of the court's jurisdictional authority and therefore it is not an absolute requirement. See Wright v. State, 873 S.W.2d 77, 82 (Tex. App.--Dallas 1994, pet. ref'd). Furthermore, the trial court cannot violate Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a) (Vernon Supp. 2002), by failing to order the preparation of a PSI report as long as the defendant has not breached the terms of his community supervision. Id. at 81. Moreover, any right to have a PSI prepared prior to sentencing in a felony case is a right forfeitable by inaction. See Holloman v. State, 942 S.W.2d 773, 776 (Tex. App.-- Beaumont 1997, no pet.). Loggins does not assert he ever objected to the trial court's failure to have a PSI prepared or ever brought it to the trial court's attention. Accordingly, the error, if any, was waived. See Tex. R. App. P. 33.1.

For all of the above reasons, we dismiss the appeal for want of jurisdiction.

APPEAL DISMISSED.

PER CURIAM

  Submitted on May 16, 2002

Opinion Delivered May 22, 2002

Do not publish

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