Kwamene Trent Xzavion Nichols v. State

  Opinion issued February 26, 2009

In The

Court of Appeals

For The

First District of Texas  

---

NO. 01-08-00512-CR

____________

KWAMENE TRENT XZAVION NICHOLS, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1135707

---

MEMORANDUM OPINION

Appellant, Kwamene Trent Xzavion Nichols, without an agreed punishment recommendation from the State, pleaded guilty to the offense of aggravated robbery, ⁽¹⁾ and the trial court assessed his punishment at confinement for 15 years. In one issue, appellant contends that the trial court erred in allowing an extraneous offense to be included in the pre-sentence investigation report used during his punishment hearing.

We affirm.

Factual and Procedural Background

After appellant pleaded guilty to committing the offense of aggravated robbery, he told the trial court that he had pointed a shotgun at the complainant, Jose Martinez, while two of his friends took the complainant's car keys. When the trial court asked appellant to explain whether he and his friends had planned to commit the robbery, appellant replied,

[Appellant:] No, ma'am. I was just getting into some stuff. I didn't know what I was getting into.

[The trial court:] What do you mean?

[Appellant:] Friends influence . . . and I was under alcohol and marihuana and I was riding around and they did it the first time but I was with them and we went to the next apartment complex and that's when they told me to do it and I just did it. It was a dumb decision.

After giving appellant the required admonishments, ⁽²⁾ the trial court concluded that there was sufficient evidence to find appellant guilty and reset the case for a sentencing hearing.

Before the sentencing hearing, a pre-sentence investigation report was prepared. The report contained information about the instant offense and a second aggravated robbery committed on the same day.

At the sentencing hearing, appellant's mother and pastor testified that appellant had "changed." Appellant testified that he had "confessed to several aggravated robberies" as stated in his pre-sentence investigation report. On cross-examination, he agreed that he had committed four other aggravated robberies on the same day as the instant offense. Appellant also conceded that after pleading guilty, but before the sentencing hearing, he had been arrested for the offense of possession of marijuana, ⁽³⁾ and he agreed that he had planned to sell the marijuana in order to "get some extra money." After hearing the evidence and counsels' arguments, the trial court found appellant guilty and assessed his punishment at confinement for 15 years, stating that appellant's "claim to have changed" seemed especially insincere in light of his recent arrest for the offense of possession of marijuana.

"Extraneous" Offense

Appellant argues that he was deprived due process of law because the pre-sentence investigation report included information about a second aggravated robbery which "was not shown to be connected to the appellant."

When a criminal defendant pleads guilty to a felony offense without a punishment recommendation from the State, the trial court "shall direct a supervision officer" to prepare a pre-sentence investigation report "before the imposition of sentence." Tex. Code Crim. Proc. Ann. art. 42.12 § 9(a), (g)(4) (Vernon Supp. 2008). The report should convey to the court "the circumstances of the offense with which the defendant is charged, . . . the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge." Id. § 9(a). If the information in the report is incorrect, the defendant may "introduce testimony or other information alleging a factual inaccuracy in the investigation or report." Id. § 9(e) (Vernon Supp. 2008).

Here, appellant did not object to the inclusion of the second aggravated robbery in the pre-sentence investigation report. In fact, during his direct examination, appellant agreed that he had committed the aggravated robberies discussed in the pre-sentence investigation report. Additionally, although the report included information about a second aggravated robbery, appellant testified that he had actually committed a total of five robberies on the same date. Because appellant did not object to the inclusion of the second aggravated robbery in the report, we hold that appellant waived this issue for our review. See Tex. R. App. P. 33.1(a); see also Tex. Code Crim. Proc. Ann. art. 42.12 § 9(e).

We overrule appellant's sole issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Keyes, and Higley.  

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

1. See Tex. Penal Code Ann. § 29.03 (Vernon 2003).

2.

See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2008).

3.

See Tex. Health & Safety Code Ann. § 481.121 (Vernon 2003).