No. 14-06-00312-CR
Filed May 22, 2007. DO NOT PUBLISH TEX. R. APP. P. 47.2(b).
On Appeal from the 174th District Court Harris County, Texas, Trial Court Cause No. 1030175.
Panel consists of Justices ANDERSON, FROST, and MIRABAL (Senior Justice MIRABAL sitting by assignment).
KEM THOMPSON FROST Justice.
Appellant Richard Marrquin Recio appeals his conviction for murder asserting: (1)-(2) his conviction is void because the trial court viewed the pre-sentence investigation report prior to a finding of guilt, (3) the trial court reversibly erred by failing to sua sponte withdraw his plea of "no contest", and (4)-(5) his sentence violates his state and federal constitutional rights against cruel and unusual punishment. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged with the offense of murder. He waived his right to a trial by jury, and entered a plea of "no contest" without an agreed recommendation. The trial court found that the evidence supported appellant's guilt, deferred proceedings without entering an adjudication of guilt, and ordered a pre-sentence investigation("PSI"). Approximately three months later, the trial court found appellant guilty and sentenced him to twenty-five years' confinement in the Texas Department of Criminal Justice, Institutional Division. II. ISSUES AND ANALYSIS
A. Did appellant preserve error on his first two issues relating to the trial court's review of the PSI report prior to adjudicating guilt? In his first two issues, appellant contends his convictions are void because the trial judge reviewed the PSI report before finding him guilty, in violation of his federal and state constitutional rights to due process. Appellant contends the error in this case is fundamental and thus did not require an objection at the trial court level. To support this proposition, he cites State ex rel. Turner v. McDonald, 676 S.W.2d 375 (Tex.Crim.App. 1984) and State ex rel. Bryan v. McDonald, 662 S.W.2d 5 (Tex.Crim.App. 1983) (hereafter "the McDonald cases"). In the McDonald cases, the Court of Criminal Appeals held that the trial court's inspection of the PSI report prior to a determination of guilt violates federal and state rights to due process. Turner, 676 S.W.2d at 379; Bryan, 662 S.W.2d at 8. Appellant acknowledges that the Court of Criminal Appeals did not explicitly hold in the McDonald cases that the trial court's procedure constituted fundamental error. However, appellant argues that the high court implicitly so ruled in those cases based on its finding of fundamental error. Even if we accepted appellant's interpretation of the McDonald cases, we conclude that the facts of those cases are distinguishable from the facts in the instant case. In the McDonald cases, the trial judge viewed the PSI report before making an determination of the defendant's guilt. Turner, 676 S.W .2d at 379; Bryan, 662 S.W.2d at 7. The Court of Criminal Appeals was concerned about due process violations when a judge considers "[w]holesale evidence, almost always of a hearsay nature, not sworn to and not subject to the rigors of cross — examination. . .before a plea is even entered." Bryan, 662 S.W.2d at 7. That did not occur in the case under review. The trial court reviewed the report after appellant entered a plea of "no contest," signed a judicial confession, and stipulated to the evidence of his guilt. As a result, the judge could not have used the PSI report to influence a decision on guilt, but only to influence his punishment decision. Thus, appellant's constitutional rights were not violated. See Baldridge v. State, 77 S.W.3d 890, 892 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd); see also Wissinger v. State, 702 S.W.2d 261, 263 (Tex.App.-Houston [1st Dist.] 1985, pet. ref'd) (holding that when the judge considers the presentencing report after the defendant pleads "no contest," signs a judicial confession, and stipulates to the evidence, "the report could not have influenced the judge except in deciding the appropriate punishment"). Further, the Code of Criminal Procedure permits a judge to inspect a PSI report once "the defendant pleads guilty or nolo contendere or is convicted of the offense." TEX. CODE CRIM. PROC. ANN. Art. 42.12 § 9(c) (Vernon Supp. 2005). Because appellant failed to object to the trial court's review of his PSI report, and the trial court did not commit a fundamental error by violating his constitutional rights, we overrule appellant's first two issues. B. Did the trial court reversibly err in failing to sua sponte withdraw appellant's "no contest" plea? In his third issue, appellant contends the trial court erred in failing to sua sponte withdraw his plea of "no contest" because the record raised an issue of the voluntariness of his plea. To support his argument, appellant relies on Payne v. State, 790 S.W.2d 649, 651 (Tex.Crim.App. 1990), a case in which the defendant presented evidence indicating that he was guilty of a lesser offense during sentencing, after he had entered a guilty plea. Id. However, Payne involved a timely motion by the defendant to withdraw the guilty plea. Id. Therefore, Payne does not support appellant's position. Id. A trial court has no duty to withdraw a defendant's plea of guilty sua sponte after the defendant has waived a jury trial, even if the evidence fairly raises an issue as to the innocence of the defendant. See Thomas v. State, 599 S.W.2d 823, 824 (Tex.Crim.App. 1980); Moon v. State, 572 S.W.2d 681, 682 (Tex.Crim.App. 1978) (op. on reh'g). As the trier of fact, the trial court, without withdrawing the plea, may decide the issue, either finding the defendant not guilty or guilty as it believes the facts require. Thomas, 599 S.W.2d at 824. Thus, no valid purpose would be served by requiring a trial court to withdraw a guilty plea. See Moon, 572 S.W.2d at 682. The trial court was not required to sua sponte withdraw appellant's prior plea based on his testimony at the adjudication hearing. We overrule appellant's third issue. C. Did appellant preserve error on his last two issues relating to his complaint that his twenty-five year sentence constitutes cruel and unusual punishment?
In his fourth and fifth issues, appellant contends his twenty-five year sentence violates his federal and state constitutional rights against cruel and unusual punishment. See U.S. CONST. amends. VIII, XIV; Tex. Const. art. I, 13. Like many other rights, the constitutional rights to be free from cruel and unusual punishment may be waived. See Nicolas v. State, 56 S.W.3d 760, 768 (Tex. App — Houston [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.-Houston [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 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 his punishment in the trial court, he waived his 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). Accordingly, we overrule appellant's last two issues. Having overruled all of appellant's issues on appeal, we affirm the trial court's judgment. Judgment rendered and Memorandum Opinion filed May 22, 2007.