David Paez Gonzalez v. State of Texas

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-01-00010-CR ______________________________



DAVID PAEZ GONZALEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 183rd Judicial District Court Harris County, Texas Trial Court No. 739933

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Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Ross

O P I N I O N

David Paez Gonzalez appeals the revocation of his deferred adjudication community supervision. Gonzalez pled guilty, as part of a plea agreement, to burglary of a habitation with intent to commit theft. The trial court deferred a finding of guilt and placed Gonzalez on six years' community supervision. The State later filed a motion to adjudicate Gonzalez' guilt, alleging he violated four of the terms of his supervision. Gonzalez pled not true to each of the allegations. The trial court found the allegations true, found Gonzalez guilty, and sentenced him to eighteen years' imprisonment.

Gonzalez' attorney has filed an appellate brief in which she concludes that, after a review of the record and the related law, the appeal is frivolous and without merit. She has evaluated the record and has found no error that arguably supports an appeal. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Gonzalez did not file a response pro se.

In her Anders brief, counsel raises the arguable issues that Gonzalez' original guilty plea was not made knowingly and voluntarily, and that he did not receive effective assistance of counsel at his trial. However, except in certain narrowly defined circumstances, see Nix v. State, No. 793-00, 2001 WL 717453, at *1-2 (Tex. Crim. App. June 27, 2001), if Gonzalez wished to appeal issues arising from the original plea proceeding in an appeal taken from that proceeding, he must have done so at that time. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999).

Nix addresses the void judgment exception, which recognizes there are some rare situations in which a trial court's judgment is accorded no respect due to a complete lack of power to render the judgment in question. Nix, 2001 WL 717453, at *2. The judgment being a nullity, it can be attacked at any time. Id.

We discern nothing in the record indicating the trial court was without power to render judgment. Consequently, because Gonzalez waited until his community supervision had been revoked and his adjudication of guilt formally made, this Court is without jurisdiction to consider an appeal from the original plea proceedings. Manuel, 994 S.W.2d at 662. In addition, Gonzalez may not raise issues regarding the proceeding at which his adjudication of guilt was formally made. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Cooper v. State, 2 S.W.3d 500, 502 (Tex. App.Texarkana 1999, pet. ref'd).

Gonzalez can appeal issues related to his sentencing. ⁽¹⁾ Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2002). Gonzalez' eighteen-year sentence is within the statutory range prescribed for burglary of a habitation with intent to commit theft. Tex. Pen. Code Ann. § 12.33(a) (Vernon 1994), § 30.02(c)(2) (Vernon Supp. 2002). We therefore discern no basis for holding the sentence disproportionate to the offense.

The record also shows the trial court did not order preparation of a presentence investigation (PSI) report. Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a) (Vernon Supp. 2002) provides as follows:

Except as provided by Subsection (g) of this section, before the imposition of sentence by a judge in a felony case . . . the judge shall direct a supervision officer to report to the judge in writing on the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge. It is not necessary that the report contain a sentencing recommendation, but the report must contain a proposed client supervision plan describing programs and sanctions that the community supervision and corrections department would provide the defendant if the judge suspended the imposition of the sentence or granted deferred adjudication.

Tex. Code Crim. Proc. Ann. art. 42.12, § 9(g) (Vernon Supp. 2002) provides:

(g) Unless requested by the defendant, a judge is not required to direct an officer to prepare a presentence report in a felony case under this section if:

(1) punishment is to be assessed by a jury;

(2) the defendant is convicted of or enters a plea of guilty or nolo contendere to capital murder;

(3) the only available punishment is imprisonment; or

(4) the judge is informed that a plea bargain agreement exists, under which the defendant agrees to a punishment of imprisonment, and the judge intends to follow the agreement.

In Whitelaw v. State, 29 S.W.3d 129, 129 (Tex. Crim. App. 2000), the Texas Court of Criminal Appeals unanimously held the trial court must order preparation of a PSI report in a felony case when the defendant requests one. In so holding, the court disapproved of cases holding the trial court has discretion to order preparation of a PSI report. Id. at 134 (disapproving of Stancliff v. State, 852 S.W.2d 639, 640 (Tex. App.Houston [14th Dist.] 1993, pet. ref'd), and Turcio v. State, 791 S.W.2d 188, 191 (Tex. App.Houston [14th Dist.] 1990, pet. ref'd)).

As the language of Article 42.12, § 9 provides and Whitelaw makes clear, the general rule is the trial court must order a PSI report unless the exceptions in Section 9(g) apply. Even then, if the defendant requests a PSI report, the trial court must order one prepared. Whitelaw, 29 S.W.3d at 132.

In the present case, neither Subsections 1 or 2 of Article 42.12, § 9(g) applies to Gonzalez. He was not sentenced by a jury and he was not convicted of, nor did he plead guilty or no contest to, capital murder. Subsection 3 also does not apply, as Gonzalez remained eligible for "straight" community supervision after the trial court found him guilty. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3(a) (Vernon Supp. 2002). Subsection 4 does not apply because a plea agreement, "under which the defendant agrees to a punishment of imprisonment," did not exist. See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(g)(4). Thus, Article 42.12, § 9 required the trial court to order preparation of a PSI report.

However, error in failing to order a PSI report is waived if the defendant fails to object or bring the failure to the trial court's attention. Buchanan v. State, No. 06-00-00242-CR, 2001 WL 1568892, at *3 (Tex. App.-Texarkana Dec. 11, 2001, no pet.). Here, Gonzalez did not bring the error to the trial court's attention. Consequently, the error is waived. We have otherwise reviewed the record from the sentencing portion of the hearing and have found no arguable issues for appeal.

The judgment is affirmed.

Donald R. Ross

Justice

Date Submitted: February 27, 2002

Date Decided: February 28, 2002

Do Not Publish

1. The Texas Court of Criminal Appeals has recently made it clear that courts of appeals have jurisdiction to consider those appeals, notwithstanding the fact the defendant originally pled guilty as part of a plea agreement and does not have the trial court's permission, under Tex. R. App. P. 25.2(b)(3), to appeal issues related to his sentencing. Vidaurri v. State, 49 S.W.3d 880, 884-85 (Tex. Crim. App. 2001).