Dana Marie Maschino v. State ( 2005 )

Opinion filed December 8, 2005

Opinion filed December 8, 2005

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00118-CR

                                                    __________

                                DANA MARIE MASCHINO, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 35th District Court

                                                          Brown County, Texas

                                                Trial Court Cause No. CR 16,032

                                                                   O P I N I O N

This is an appeal from a judgment adjudicating guilt.  We affirm.

                                                      Proceedings in the Trial Court

Dana Marie Maschino originally entered a plea of guilty to the offense of delivery of marihuana. On February 11, 2002, the trial court admonished appellant, heard testimony and the arguments of counsel, and reviewed the presentence investigation report.  The trial court then deferred the adjudication of guilt, placed appellant on community supervision for 5 years, and assessed a $1,000 fine. On September 3, 2003, the State filed its motion to adjudicate guilt.  At the hearing on the State=s motion to adjudicate, appellant entered pleas of true to two of the allegations that she had violated the terms and conditions of her community supervision and pleas of not true to the remaining ten allegations.  The trial court found seven of the allegations to be true.  The trial court then revoked appellant=s community supervision, adjudicated appellant=s guilt, and imposed a sentence of confinement for one year in a state jail facility.  Appellant filed a motion for new trial on the grounds that a separate punishment hearing was not conducted.  In January 2004, the trial court granted a motion for new trial as to punishment only and set the case for a hearing.  At the subsequent March 4, 2004 punishment hearing, the trial court assessed her punishment at confinement for 12 months in a state jail facility.

                                                                  Issue on Appeal

In her sole issue on appeal, appellant contends that the trial court erred in assessing her punishment without a new presentence investigation report. Appellant argues that, under the case of Whitelaw v. State, 29 S.W.3d 129 (Tex.Cr.App.2000), reversible error occurred when the trial court did not order a new presentence investigation report after revoking community supervision and adjudicating guilt in 2003. We disagree.

                                                                Whitelaw v. State

In Whitelaw, the defendant was on trial for theft.  While the jury was deliberating guilt/innocence, the defendant requested that the trial court order a presentence investigation report.  The trial court denied the request.  The Court of Criminal Appeals held that, Aupon a defendant=s timely request, in felony cases, a trial court must order the preparation of a PSI.@ Whitelaw v. State, supra at 134.

                                                             Appellant=s Argument

Appellant asks this court to extend the holding in Whitelaw to the facts of this case. We decline to do so. 

A presentence investigation report was prepared in 2002 and considered by the trial court when it deferred the adjudication of appellant=s guilt.  The same trial court that heard appellant=s original plea and decided to defer the adjudication of guilt was the same trial court that considered the motion to adjudicate, presided over the hearing on the motion for new trial, and conducted the second punishment hearing. The trial court was familiar with the facts of this case and appellant=s contentions that her marihuana use was for medicinal purposes.  See Buchanan v. State, 68 S.W.3d 136, 140 (Tex.App. - Texarkana 2001, no pet=n).

Under the holding in Whitelaw, the trial court did not err by failing to order a second presentence investigation report.  The issue is overruled.

                                                               This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

December 8, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.