Gerardo Gerry Ruiz v. State ( 2005 )

Opinion issued May 19, 2005

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-04-00164-CR

          01-04-00165-CR

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GERARDO GERRY RUIZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause Nos. 947624 & 947851

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MEMORANDUM OPINION

          In two cases, appellant, Gerardo Gerry Ruiz, pleaded guilty, without an agreed punishment recommendation, to two separate offenses of aggravated robbery. The trial court accepted the pleas, found the evidence substantiated appellant’s guilt in each case, and reset the cases for sentencing after the return of a presentence investigation report. After the presentence investigation reports were prepared, the trial court conducted a hearing, found appellant guilty of both charges, and assessed punishment at 25 years’ confinement and a $10,000 fine in each case. In four points of error, appellant contends that (1) the trial judge’s review of the presentence investigation report before making a formal finding of guilt violated his state and federal rights to due process, and (2) the 25-year sentences violated his state and federal rights against cruel and unusual punishment.

Review of Presentence Investigation Report

          In his first and second points of error, appellant contends that the trial court erred by reviewing the presentence investigation reports before making a formal finding of guilt. Appellant cites State ex rel. Turner v. McDonald, 676 S.W.2d 375, 379 (Tex. Crim. App. 1984), and State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 7-8 (Tex. Crim. App. 1983), for the proposition that a conviction is void when the trial judge reviews a defendant’s presentence investigation report before making a finding of guilt. However, in Wissinger v. State, this Court distinguished Turner and Bryan by stating as follows:

The facts in the present case differ from the McDonald cases. In the instant case, there is no evidence that the judge considered the pre-sentence investigation report or ordered it until the defendant had pleaded no contest, signed a judicial confession, and stipulated to the evidence of her guilt. Therefore, the report could not have influenced the judge except in deciding the appropriate punishment.

702 S.W.2d 261, 263 (Tex. App.—Houston [1st Dist.] 1985, pet. ref’d); see also Blalock v. State, 728 S.W.2d 135, 138 (Tex. App.— Houston [14th Dist.] 1987, pet. ref’d). Because appellant had already pleaded guilty to the offenses, signed a judicial confession, and stipulated to the evidence of his guilt, the presentence investigation report could not have influenced the judge in determining guilt. See Wissinger, 702 S.W.2d at 263; Blalock, 728 S.W.2d at 138.

          Accordingly, we overrule appellant’s first and second points of error.

Cruel and Unusual PunishmentIn his third and fourth points of error, appellant contends that his sentences were not proportional to the offenses committed and violate his state and federal rights against cruel and unusual punishment. Appellant did not raise these complaints in the trial court and, thus, has failed to preserve them for appellate review. See Tex.R.App. P. 33.1(a); Curry v. State, 910 S.W .2d 490, 497 (Tex. Crim. App. 1995) (cruel and unusual punishment complaint not preserved); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (“The constitutional right to be free from cruel and unusual punishment may be waived.”).

          We overrule appellant’s third and fourth points of error.

          We affirm the judgments of the trial court.

                                                             Sherry Radack

                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Hanks.

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