Ashley Nicole Topp v. State

Affirmed and Memorandum Opinion filed January 23, 2007

Affirmed and Memorandum Opinion filed January 23, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01008-CR

NO. 14-05-01009-CR

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ASHLEY NICOLE TOPP, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause Nos. 1025809, 1025110

M E M O R A N D U M   O P I N I O N

Appellant Ashley Nicole Topp challenges her two convictions for burglary of a habitation.  She contends that the convictions are void because the trial court reviewed her pre-sentence investigation report prior to a formal adjudication of guilt in the two cases, and that the fifteen-year sentences violate her constitutional rights against cruel and unusual punishment.  We affirm.

I.  Factual and Procedural Background

Appellant was charged with the felony of offense of burglary of a habitation in cause numbers 1025809 and 1025110.  She waived her right to a jury trial in both cases, and in each case entered a plea of guilty without an agreed recommendation for a pre-sentence investigation.  The trial court found that in each of the cases the evidence supported appellant=s guilt, but deferred the proceedings without entering any adjudication of guilt.  The trial court ordered a pre-sentence investigation (APSI@) report and, on September 15, 2005,  conducted a pre-sentencing and sentencing hearing.  After stating she had read the PSI report, the trial judge asked appellant and the State if they had any objections.  Neither side voiced any objections. Appellant testified at the hearing and admitted to her involvement in the charged offenses.  At the conclusion of the hearing, the trial court made a formal finding of guilt in each case and sentenced appellant to fifteen years= confinement in the Institutional Division of the Texas Department of Criminal Justice for each of the convictions.

II. Issues and Analysis

A.      Did appellant preserve error on her first two issues relating to the trial court=s review of the PSI report prior to adjudicating guilt?

In her first two issues, appellant contends that her convictions are void because the trial judge reviewed the PSI report before finding her guilty, in violation of her federal and state constitutional rights to due process.   However, appellant failed to preserve this complaint by objecting in the trial court, either when the trial court announced it would defer a finding pending preparation of a PSI report or later at the hearing.  See Tex. R. App. P. 33.1(a)(1); Ybarra v. State, Nos. 14‑02‑00667‑CR, 14‑02‑00668‑CR, 2003 WL 21191746, at * 1 (Tex. App.CHouston [14 Dist.] May 22, 2003, pet. ref=d) (holding that no error was preserved when defendant failed to object when the trial court stated that he would review the pre-sentence report prior to the formal finding of guilt) (not designated for publication);  Vela v. State, 915 S.W.2d 73, 75 (Tex. App.CCorpus Christi 1996, no pet.) (same).

In addition, there is no due process violation when a trial judge inspects a PSI report after a defendant has pled guilty.  Ybarra, 2003 WL 21191746, at *1; Vela, 915 S.W.2d at 75; Blalock v. State, 728 S.W.2d 135, 138 (Tex. App.CHouston [14th Dist.] 1987, pet. ref=d).  Nor is there any statutory violation in doing so.  See Tex. Code Crim. Pro. Ann. art. 42.12, ' 9(c) (Vernon Supp. 2003). Moreover, following a guilty plea, deferring the proceeding without an adjudication of guilt, pending the preparation of a PSI report, is necessary to enable a trial court to consider placing a defendant on deferred adjudication community supervision, when it is applicable.  See Ybarra, 2003 WL 21191746, at *1 n.4 (citing  Tex. Code Crim. Proc. Ann. art. 42.12 ' 5(a) (Vernon Supp. 2003)). For these reasons, we overrule appellant=s first two issues.

B.      Did appellant preserve error on her last two issues relating to her complaint that her fifteen-year sentences constitute cruel and unusual punishment?

In her third and fourth issues, appellant contends that her sentences of confinement for fifteen years violates her state and federal constitutional rights against cruel and unusual punishment.  See U.S. Const. amends. VIII, XIV; Tex. Const. art. I, ' 13.  The constitutional right to be free from cruel and unusual punishment may be waived.  See Nicolas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (concluding that defendant waived claim that one concurrent and five consecutive sentences imposed for three counts of aggravated sexual assault of child and three counts of indecency with a child were cruel and unusual under both federal and state constitutions, when he did not raise them in trial court); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d) (finding waiver where defendant failed to object at punishment hearing that sentence was cruel and unusual); see also Stewart v. LaGrand, 526 U.S. 115, 119, 119 S. Ct. 1018, 143 L. Ed. 2d 196 (1999) (concluding the defendant waived his right to complain the gas chamber was cruel and unusual when he elected that method over Arizona=s default election of death by lethal injection).  Because appellant failed to voice this objection to her punishment in the trial court, she waived her complaint for appellate review.  See Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996).

In any event, appellant=s punishment in each case was assessed within the statutory range, and she has not demonstrated that either of her fifteen-year sentences was grossly disproportionate to the felony offense of burglary of a habitation.  Each of appellant=s offenses was punishable by imprisonment in the Texas Department of Criminal Justice, Institutional Division, for any term of not more than twenty years or less than two years, and a fine not to exceed $10,000. Tex. Penal Code Ann. ''12.33, 30.02 (Vernon 2003).   Therefore, even if appellant had not failed to preserve error on her complaint, we could not conclude that appellant=s fifteen-year sentences constitute cruel and unusual punishment.  See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Benjamin v. State, 874 S.W.2d 132, 134B35 (Tex. App.CHouston [14th Dist.] 1994, no pet.). We overrule her third and fourth issues.

Having overruled all of appellant=s issues, we affirm the trial court=s judgments.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed January 23, 2007.

Panel consists of Justices Fowler, Edelman, and Frost.

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