Corey Odell Pearson v. State ( 2004 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Corey Odell Pearson

Appellant

Vs.                   No. 11-03-00108-CR B Appeal from Dallas County

State of Texas

Appellee

Corey Odell Pearson pleaded no contest to the offense of aggravated sexual assault. The trial court convicted appellant and assessed his punishment at five years confinement.  We affirm.

 On December 20, 2002, appellant entered his plea of no contest.  Appellant indicated that he understood the charge against him and that he understood the punishment range for the charge. The State then presented its evidence.

The victim, who was twelve years old at the time of the offense, testified that she and appellant=s stepdaughter, Ashlie, were friends.  The victim said that one weekend she spent the night with Ashlie.  The following day, appellant took them to go swimming.  The victim testified that, while in the car, appellant Arubbed [her] leg and stuff.”  The victim stated that, later that day, she was preparing to take a shower when appellant came into the bathroom.  The victim said that appellant started Arubbing” her Achest and stuff.”  The victim took off her pants, and appellant started Alicking [her] vagina.”  Appellant then left the bathroom.

The victim testified that she agreed to spend another night with Ashlie because appellant promised to buy her a ACD.”  That night, the victim could not sleep so she got up to get a drink. When she returned to Ashlie=s room, appellant came to the room and told the victim to come with him.  The victim went with appellant to an unoccupied bedroom across the hall.  The victim said that appellant was Arubbing” on her chest.  The victim testified that she took off her shorts and panties and that appellant Arubbed” his penis on her vagina. 

Andrea Michelle Taylor, appellant=s wife, testified at trial that the victim never seemed uncomfortable while staying at their house.  Taylor said that the victim asked to stay another night at their house.  Taylor testified that appellant did not get out of bed during the night that the victim stayed with them.  Taylor stated that she would have woken up if appellant had gotten out of bed.  Ashlie testified at trial that she was a Alight sleeper” and that she did not hear the victim get up when she spent the night.

After hearing the evidence, the trial court stated:

So I do find that the evidence proves your guilt.  I=m not finding you guilty at this time.  I=m not sure what I=m going to do.  I want to have a pre-sentence report prepared to learn more about you.

So I=m going to release you today and continue you on bond.  I want you to report to the Probation Department where you will be interviewed. I will review that interview, together with any punishment witnesses you have, any punishment witnesses the State has.  Then I=ll make a decision. 

On January 17, 2003, the trial court held a hearing on punishment.  The trial court indicated that it had read the presentence investigation report and found that the evidence established appellant=s guilt.  The trial court then cautioned appellant about continuing to deny committing the offense.  The trial court stated that:

If you=re not guilty, I want you to maintain your innocence.  But if you have done this, I want you to think about it seriously, because your lawyer is going to be asking me for probation, and I don=t see that you=re a very good candidate for probation if you=re going to deny your offense because you=ll be sent to counseling. You=ll say you didn=t do it.

You=ll get kicked out of counseling.  You=ll be right back here before me and I=ll have no choice but to sentence you to prison if you=re not undergoing counseling.

So I want you to talk to your lawyer for just a couple of moments before we begin this hearing. So we=ll take a short recess. You talk with your lawyer.  Then we=ll proceed.

The State and appellant then presented evidence on punishment.  At the close of evidence, the trial court stated:  AI have not changed my mind....I still believe the evidence proves your guilt, so I do find you guilty as charged.”

In his first issue on appeal, appellant argues that the trial court erred in inspecting the presentence investigation report prior to a determination of guilt.  TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 9(c)(1) (Vernon Supp. 2004) provides:

The judge may not inspect a report and the contents of the report may not be disclosed to any person unless:

(1) the defendant pleads guilty or nolo contendere or is convicted of the offense.

The record shows that, after being admonished, appellant entered a plea of no contest.  The trial court heard evidence and then found that the evidence proved that appellant committed the offense.  See Baldridge v. State, 77 S.W.3d 890 (Tex.App. - Houston [14th Dist.] 2002, pet=n ref=d); Blalock v. State, 728 S.W.2d 135 (Tex.App. - Houston [14th Dist.] 1987, pet=n ref=d). The record does not indicate that appellant withdrew his plea of no contest.  Appellant has not shown that the trial court erred in reviewing the presentence investigation report before formally pronouncing his guilt. Appellant=s first issue on appeal is overruled.

In his second issue on appeal, appellant complains that the trial court did not consider the entire range of punishment and imposed a predetermined punishment. Appellant contends that the trial court=s comments at the beginning of the punishment hearing concerning whether appellant would admit his guilt and be successful in counseling show that the trial court did not consider community supervision as punishment.

A court denies due process and due course of law if it arbitrarily refuses to consider the entire range of punishment for an offense or refuses to consider the evidence and imposes a predetermined punishment.  Jaenicke v. State, 109 S.W.3d 793, 796 (Tex.App. - Houston [1st Dist.] 2003, pet=n ref=d).  In the absence of a clear showing to the contrary, a reviewing court will presume that the trial court was neutral and detached.  Jaenicke v. State, supra at 796; Steadman v. State, 31 S.W.3d 738, 741‑42 (Tex.App. ‑ Houston [1st Dist.] 2000, pet=n ref'd). 

The trial court cautioned appellant that he would not be a good candidate for community supervision if he continued to deny committing the offense.  The trial court explained that, while on community supervision, appellant would be sent to counseling and that, if he denied committing the offense in counseling, he would be removed from counseling.  The trial court further explained that, if appellant was not receiving counseling, he could have his community supervision revoked.  The record shows that, after making these comments, the trial court heard evidence on punishment.  The trial court then assessed the minimum prison term for the offense.^[1]  The trial court cautioned appellant on the requirements of community supervision. Appellant has not shown that the trial court refused to consider the entire range of punishment or that it imposed a predetermined punishment.   Moreover, appellant did not object to the trial court=s comments or to the trial court=s pronouncement of the sentence. Therefore, appellant has waived his complaint for appellate review.  See Hull v. State, 67 S.W.3d 215, 217‑18 (Tex.Cr.App.2002); Teixeira v. State, 89 S.W.3d 190 (Tex.App. ‑ Texarkana 2002, pet=n ref=d). Appellant=s second issue on appeal is overruled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

February 19, 2004

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

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]TEX. PENAL CODE ANN. ' 22.021(d) (Vernon Supp. 2004); TEX. PENAL CODE ANN. ' 12.32(a) (Vernon 2003).