Roy Gallardo v. State

IN THE

TENTH COURT OF APPEALS

 

No. 10-10-00160-CR

Roy Gallardo,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the County Court at Law

Hill County, Texas

Trial Court No. M0126-10

MEMORANDUM  Opinion

            Roy Gallardo was convicted of Driving While License Suspended, enhanced.  Tex. Transp. Code Ann. § 521.457(a)(2), (f) (Vernon Supp. 2009).  He was sentenced to 6 months in jail and a $500 fine.  By letter, the Clerk of this Court notified Gallardo that his appeal was subject to dismissal because the trial court indicated on the certification of defendant’s right of appeal that Gallardo had no right of appeal.  See Tex. R. App. P. 25.2(d).  The Clerk also warned Gallardo that the Court would dismiss his appeal unless, within 21 days of the date of this letter, a response was filed showing grounds for continuing the appeal.

            No response has been filed. Accordingly, this appeal is dismissed.  See id.; 44.3.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Dismissed

Opinion delivered and filed June 2, 2010

Do not publish

[CR25]

's judgment.

      Article 42.12 § 9(a) in its pertinent parts requires that before the imposition of sentence, the Court shall direct a probation officer to report to the court 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 court.

      Article 42.09 § 8(a)(11), Texas Code of Criminal Procedure, provides:

"A county that transfers a defendant to the Department of Corrections under this Article shall deliver to the director of the department:

. . .

"(11) a copy of a presentence investigation report prepared under Section 9, Article 42.12 of this code."

      As stated, Appellant entered a plea of guilty to the information, and prior to being sentenced by the court, Appellant filed a written waiver of a presentence investigation report and specifically objected to any such report being prepared or compiled. The trial court accepted Appellant's waiver of presentence investigation report and forthwith sentenced him as hereinabove stated.

      Appellant argues that the trial court should have ordered a presentence investigation, and that in the absence of such presentence investigation, the trial court should not have pronounced sentence against him.

      Article 42.12 § 9(b) of the Texas Code of Criminal Procedure provides for an exception to the mandatory requirement of the presentence investigation report; however, this exception is specifically limited to misdemeanor cases. Appellant contends, therefore, that despite his specific written objection to the preparation of a presentence investigation report, and notwithstanding his written waiver thereof, the trial court erred in its decision to sentence him without the benefit of a presentence investigation report.

      Article 1.14(a) provides:

"The defendant in a criminal prosecution for any offense may waive any rights secured him by law except that a defendant in a capital felony case may waive the right of trial by jury only in the manner permitted by Article 1.13(b) of this code."

      It is well established in our jurisprudence that "an accused cannot invite error and then complain thereof." Capistran v. State, (Tex. Crim. App. 1982) 759 S.W.2d 121 and the authorities cited therein at page 124; Cadd v. State, (Tex. Crim. App. 1979) 587 S.W.2d 736 and the authorities cited therein at page 741.

      Appellant cannot assert a right which he waived; moreover, he has failed to show how he was harmed by the trial court's decision to honor his request to proceed without a presentence investigation report. Appellant's sole point of error is overruled.

      Judgment of the trial court is affirmed.

                                                                                     JOHN A. JAMES, JR.

                                                                                     Justice (Retired)

Before Justice Cummings,

      Justice Vance, and

      Justice James (Retired)

Affirmed

Opinion delivered and filed April 14, 1993

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