Karl Lee Bunselmeyer v. State ( 2013 )

Opinion filed June 6, 2013
In The
Eleventh Court of Appeals
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No. 11-11-00195-CR
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KARL LEE BUNSELMEYER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 17658B
MEMORANDUM OPINION
Appellant, Karl Lee Bunselmeyer, signed a stipulation of evidence and
entered an open plea of guilty to the offense of aggravated sexual assault of a child.
The trial court convicted Appellant of the offense and assessed his punishment at
confinement for thirty-five years. We affirm.
In his sole issue on appeal, Appellant contends that the trial court abused its
discretion at the punishment phase of trial when it considered a presentence report
that was not made part of the record in this case in violation of Appellant’s right to
due process under TEX. CONST. art. I, § 13 and TEX. CODE CRIM. PROC. ANN.
art. 1.04 (West 2005). The record from the hearing on Appellant’s guilty plea
reflects that Appellant requested a “presentence report” and that the trial court
ordered the preparation of a presentence investigation report (PSI). See TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 9 (West Supp. 2012). The trial court subsequently
held a disposition hearing. At the beginning of that hearing, the trial court ensured
that Appellant and the State had each received a copy of the PSI. The trial court
gave Appellant’s counsel an opportunity to make corrections to the PSI. The
witnesses were then sworn, and both sides were permitted to call witnesses and
present evidence. At the end of the hearing, the trial court pronounced Appellant’s
sentence after stating on the record that the trial court had “carefully consider[ed]
the PSI, evidence, argument of Counsel and the applicable law.”
The record shows that Appellant did not request that the PSI be admitted
into evidence, did not object that it was not admitted into evidence or included in
the record, and did not object to the trial court’s taking the PSI into consideration.
Thus, Appellant failed to preserve for review any contention that the omission of
the PSI from the record constitutes error. See TEX. R. APP. P. 33.1(a); Bell v. State,
155 S.W.3d 635, 639 (Tex. App.—Texarkana 2005, no pet.). The inclusion of the
PSI in the record is not automatic, and defense counsel should include the PSI in
the record if the material in the PSI is in dispute. Diaz v. State, No. 11-10-00381-
CR, 2012 WL 2978786 (Tex. App.—Eastland July 19, 2012, no pet.) (mem. op.,
not designated for publication). A trial court is not prohibited from considering a
PSI that has not been admitted into evidence. As noted by the court in Bell, based
on Article 42.12, section 9’s “restriction of access to the information contained in
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the PSI, we feel the better practice is to not admit the PSI into evidence. Such
practice, in and of itself, should not restrict the parties’ access to that information
or the judge’s consideration of that information in assessing punishment.” 155
S.W.3d at 639 n.3. We hold that Appellant’s due process rights were not violated
by the trial court’s consideration of the PSI in this case. Appellant’s sole issue is
overruled.
We affirm the judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
June 6, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
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