Delbert Ray Hicks v. State

                             NO. 12-04-00295-CR

                     IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                TYLER, TEXAS

DELBERT RAY HICKS,                                 §                 APPEAL FROM THE 349TH

APPELLANT

V.                                                                         §                 JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                       §                 HOUSTON COUNTY, TEXAS

                                                     MEMORANDUM OPINION

Delbert Ray Hicks appeals his conviction for injury to a child.  He entered a guilty plea and the trial court sentenced him to ten years of imprisonment. In a single issue, Appellant asserts that the trial court erred by sentencing him in the absence of a presentence investigation (PSI) report.  We affirm.

Background

On July 17, 2003, Appellant pleaded guilty to the offense of injury to a child.  He waived reading of the charging instrument, time to file motions for new trial and in arrest of judgment, appeal, preparation of a presentence report, and his right to a jury trial.  The trial court found that the evidence supported a finding of guilt and placed Appellant on deferred adjudication probation.

On August 19, 2004, a hearing was held on the State’s motion to proceed with adjudication.  The court heard evidence on the motion, adjudicated Appellant’s guilt, and immediately began the sentencing phase.  Appellant responded affirmatively when the trial court asked if he was ready for the punishment phase.  When the court asked the parties if they had additional testimony they would like to offer, the State offered all testimony from the first phase of the trial but Appellant said he had nothing to offer.  Each side presented argument.  Then the State asked to present photographs of the victim’s injuries or, alternatively, requested a PSI that would include the photos.  Appellant objected to the use of the photos, noted that the court had taken judicial notice of the contents of the file, and asked the court “to go ahead and proceed with sentencing.”  The court sentenced Appellant without receiving the photos or ordering a PSI.

Presentence Investigation

In his sole issue, Appellant asserts that the trial court erred in not ordering a PSI.  He argues that he did not waive his right to a PSI at the sentencing hearing, the State requested a PSI, the trial court did not make a finding of a waiver, and the court conducted the sentencing hearing without a PSI.

With certain exceptions that are not applicable here, the Texas Code of Criminal Procedure requires the trial court to direct a supervision officer to prepare a PSI before the imposition of sentence.  Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a) (Vernon Supp. 2004-05).  This right can be waived by the defendant.  Griffith v. State, 166 S.W.3d 261, 263 (Tex. Crim. App. 2005).  A waiver of a PSI signed at the original plea hearing is still valid at the subsequent adjudication of guilt and assessment of punishment.  Id. at 265.

Appellant signed a written waiver of his right to a PSI report at the time he pleaded guilty.  That waiver was still effective at the time the trial court adjudicated guilt and assessed punishment.  Id.  Therefore, the trial court did not err in assessing punishment in the absence of a PSI. We overrule Appellant’s sole issue.

Disposition

We affirm the trial court’s judgment.

    SAM GRIFFITH   

   Justice

Opinion delivered October 12, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

                                                           (DO NOT PUBLISH)