Dick, Deanna Ellen v. State

Affirmed and Memorandum Opinion filed July 28, 2005

Affirmed and Memorandum Opinion filed July 28, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00279-CR

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DEANNA ELLEN DICK, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 943,562

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M E M O R A N D U M   O P I N I O N

Appellant Deanna Ellen Dick pleaded guilty to theft and the trial court sentenced her to seven years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In her sole issue, appellant argues the statutorily-mandated sentencing procedure used by the trial court violated her constitutional right to a jury trial.  We affirm.

I.  Factual and Procedural Background

Appellant was charged by indictment with the offense of aggregate theft of property valued between $100,000 and $200,000.  After a plea bargain was reached, appellant pleaded guilty to the offense of aggregate theft, but with a value range of $20,000 to $100,000.  In accordance with the plea agreement, the State sought punishment at five years= confinement and restitution.  For reasons not apparent from the record, the trial court rejected the plea bargain.  Nonetheless, appellant pleaded guilty to theft of property valued between $20,000 and $100,000 and, in preparation for the punishment hearing, requested a pre-sentence investigation report (PSI). 

Appellant filed written objections to extraneous offenses and unsworn statements contained in the PSI.  After a punishment hearing, the trial court assessed appellant=s punishment at seven years= confinement and restitution of $16,000.^[1]  This appeal ensued. 

II. Discussion

In her sole issue on appeal, appellant argues the sentencing procedure authorized by Article 42.12, section 9(a) of the Texas Code of Criminal Procedure violated her Sixth Amendment right to a jury trial because the trial judge=s examination of the PSI permitted the court to sentence her based on conduct not proved beyond a reasonable doubt.  See U.S. Const. amend. VI; see also United States v. Cotton, 535 U.S. 625, 634 (2002). 

In support of her argument, appellant cites Blakely v. Washington, in which the Supreme Court determined the State of Washington=s statutory scheme for sentencing allowed a trial judge to enhance a sentence due to conduct that was not proved beyond a reasonable doubt.  542 U.S. 296, __, 124 S. Ct. 2531, 2537B38 (2004).  Blakely involved a guilty plea, as does this case.  The Blakely Court noted that the trial judge could not have imposed the ninety-month sentence based solely on the defendant=s plea; the facts admitted to in Blakely=s plea subjected him to a maximum statutory sentence of only fifty-three months.  542 U.S. at __, 124 S. Ct. at 2537.  The trial court, however, sentenced Blakely to ninety months based on its determination that he acted with Adeliberate cruelty.@  Id. In finding this sentencing procedure violated Blakely=s Sixth Amendment right to trial by jury, the Court applied the following rule from Apprendi v. New Jersey:  AOther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.@  See Blakely, 542 U.S. at __, 124 S. Ct. at 2536 (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). 

Here, appellant argues Blakely governs because the Court=s discussion Aleads to the inevitable conclusion that judicial sentencing based on unsupported, unsworn, and unproven allegations, like the ones in the case at bar, violate the [C]onstitution even if the judge prescribes a sentence within the particular statutory range.@  Moreover, appellant argues the Blakely Court Arepeatedly made the point that a judge should not be able to inflict punishment based on any facts beyond those contained in a jury=s verdict.@  We reject appellant=s argument because we conclude the rule created in Blakely is inapplicable to the procedure used by the trial court.

Under Apprendi, a defendant=s sentence must be based on facts proved beyond a reasonable doubt.  530 U.S. at 490.  If the trial judge wishes to assess an enhanced sentence, one that goes beyond the statutory maximum and requires additional factfinding, Blakely requires that these additional facts be proved beyond a reasonable doubt. 542 U.S. at __, 124 S. Ct. at 2537. In that context, the Astatutory maximum@ is the Amaximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.@  Id. (emphasis in original).  Here, appellant=s sentence does not exceed the statutory maximum; her seven-year sentence is within the two-to-ten-year statutory range of punishment for theft of property valued between $20,000 and $100,000.  See Tex. Pen. Code Ann. '' 12.34(a), 31.03(e)(5), 31.09 (Vernon 2003). Thus, the rule in Blakely is inapposite.

Moreover, our Code of Criminal Procedure expressly permits the trial court to consider information contained in a PSI when assessing punishment.  See Tex. Code Crim. Proc. Ann. art. 42.12 ' 9(a) (Vernon Supp. 2005).  Blakely does not render this procedural provision unconstitutional.  See id.; see also Griffith v. State, __, S.W.3d __, __, No. PD-1121-04, 2005 WL 1523877, at *1B2 (Tex. Crim. App. June 29, 2005) (analyzing whether the trial court properly interpreted Article 42.12, section 9 without declaring it unconstitutional).  Indeed, our court=s sentencing procedure accounts for the requirement that sentencing be based on facts proved beyond a reasonable doubt.  See Blakely, 542 U.S. at __, 124 S. Ct. 2537B38.  When the trial court assesses punishment, the judge acts as factfinder and may determine that extraneous offense evidence is relevant to punishment and admit the evidence. Williams v. State, 958 S.W.2d 844, 845 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d).  But, the trial court may only consider extraneous offense evidence in its sentencing decision if it finds the extraneous offense is proved beyond a reasonable doubt.  Id.; see also Bell v. State, 155 S.W.3d 635, 637B38 (Tex. App.CTexarkana 2005, no pet. h.).  Extraneous offenses in a PSI are not, therefore, considered uncontroverted truths; the defendant has the opportunity to object to the information in the PSI, but bears the burden of proving the information is inaccurate or incorrect.  Garcia v. State, 930 S.W.2d 621, 623 (Tex. App.CTyler 1996, no pet.).^[2]  Appellant was afforded such an opportunity in this case.  There is no indication the trial judge considered any improper evidence in determining appellant=s sentence.^[3]  See Williams, 958 S.W.2d at 845.  

Further, under Apprendi, a trial court may consider prior convictions in arriving at a sentence.  530 U.S. at 490.  Although the PSI in this case contains several extraneous offenses in which appellant was implicated but never charged, it also contains information concerning appellant=s three prior convictions for theft, including one conviction for theft of more than $20,000.  Thus, while it may be true that review of the PSI allowed the trial court to examine evidence of extraneous offenses, it was nonetheless permissible for the trial court to consider the prior convictions also contained in the PSI.

Because the PSI contained prior convictions in addition to the extraneous offenses and there is no evidence in the record that the trial court considered any conduct not proved beyond a reasonable doubt in arriving at appellant=s sentence, we cannot conclude the trial court=s sentencing procedure violated appellant=s Sixth Amendment rights.  See Tex. Code Crim. Proc. Ann. art. 42.12 ' 9(a); Apprendi, 530 U.S. at 490; Williams, 958 S.W.2d at 845. Accordingly, appellant=s sole issue is overruled, and we affirm the trial court=s judgment.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed July 28, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The offense of aggregated theft of property valued between $20,000 and $100,000 carries a sentencing minimum of two years= and maximum of ten years= confinement.  See Tex. Pen. Code Ann. '' 12.34(a), 31.03(e)(5), & 31.09 (Vernon 2003).

^[2]  Appellant does not complain on appeal that any of the information contained in the PSI is inaccurate, only that the extraneous offenses were not proved before a jury.

^[3]  Appellant further argues that the PSI=s extraneous offenses harmed her position before the trial judge by making it Aappear that she constantly and flagrantly breaks the law in a way similar to the method alleged in the indictment.@ Appellant apparently infers this from the fact the original plea bargain reached, before the judge viewed the PSI, assessed a punishment of five years, but after viewing the PSI, the trial judge assessed a punishment of seven years.  This argument, however, ignores the fact that the judge=s final sentence requires $20,000 less in restitution than did the original plea bargain.