Juan Pablo Loera v. State ( 2005 )

Opinion issued September 22, 2005

In The

Court of Appeals

For The

First District of Texas

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NO. 01-04-00734-CR

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JUAN PABLO LOERA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 962180

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MEMORANDUM OPINION

            Appellant, Juan Pablo Loera, waived his right to a trial by jury and pleaded guilty to the felony offense of aggravated robbery without an agreed recommendation from the State. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). Following the preparation of a presentence report, the trial court assessed punishment at confinement in prison for eight years. In his sole issue, appellant contends that the presentence-investigation procedure authorized by article 42.12, section 9(a) of the Code of Criminal Procedure violates the Sixth Amendment of the United States Constitution and appellant’s Apprendi rights by permitting a judge to sentence appellant based on unsworn statements and allegations that have not been proven before a jury. We affirm.

Background

          When the complainant, a pizza-delivery man, delivered a pizza to a residence, appellant placed the barrel of a rifle on the pizza box held by the complainant, and stole the pizza from him, along with $18.00 dollars. Appellant pleaded guilty to the offense, and the trial court sentenced him after a presentence investigation report was prepared. Appellant’s signed, written plea admonishments include a waiver of his “right to have a court reporter make a record of the court proceedings” in his case.

Presentence-Investigation Report  

          Appellant contends that the trial court violated his Sixth Amendment rights by considering information contained in a presentence report prepared pursuant to article 42.12, section 9(a) of the Code of Criminal Procedure because the information contained in the report violated Apprendi v. New Jersey. 530 U.S. 466, 120 S. Ct. 2348 (2000). In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S. Ct. at 2362–2363. Appellant argues that the presentencing report contained allegations of unlawful conduct to which he did not confess and which were not presented to a jury. Specifically, the report stated that appellant (1) was expelled from high school for fighting, (2) dropped out of an alternative campus, (3) first consumed alcohol at the age of 17, and (4) had experimented with marijuana, cocaine, and Xanax.   

          To preserve error for appeal, the defendant must object, state the grounds with sufficient specificity, and obtain an adverse ruling. Tex. R. App. P. 33.1. Failure to preserve error generally waives error. Id.; see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (holding that appellant did not preserve error because of failure to make timely objection at trial and failure to make objection on appeal consistent with any made at trial). The defendant’s failure to object at trial can also result in a waiver of any appellate complaint about constitutional error. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995). Additionally, the defendant’s failure to request a court reporter results in a waiver of complaints on appeal because it is the defendant’s burden to see that a sufficient record is presented on appeal to show any error. Emery v. State, 800 S.W.2d 530, 535 (Tex. Crim. App. 1990); Montoya v. State, 872 S.W.2d 24, 25 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

          The record before us does not contain any objection by appellant to the trial court on the grounds he asserts in this appeal. Accordingly, appellant has waived the right to complain about the trial court’s actions. See id. Moreover, because he waived the right to have a court reporter transcribe the court proceedings and therefore cannot establish whether he objected at trial, appellant has waived any right to complain about the trial court’s actions. We hold that appellant has waived his complaint presented in this appeal.

          We overrule appellant’s issue.  

Conclusion

          We affirm the judgment of the trial court.

                                                             Elsa Alcala

                                                             Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).