Opinion
No. 05-02-01030-CR No. 05-02-01031-CR
Opinion Filed May 28, 2003 Do Not Publish
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F01-56363-ML, F02-47528-TL Affirmed
Before Justices MORRIS, WRIGHT, and MOSELEY.
OPINION
Betty Mae Zachery appeals her convictions, on her nonnegotiated guilty pleas, for two offenses of theft of property valued at less than $1500, with two prior theft convictions. In her sole point of error, appellant contends the trial court erred in considering eleven alleged prior arrests that were not entered into evidence. We affirm. During the plea hearing, appellant entered pleas of guilty to the offenses and true to an enhancement paragraph for an aggravated robbery conviction. The State introduced into evidence appellant's judicial confessions. Appellant testified briefly and asked the trial court to place her on community supervision with drug treatment. After appellant testified, the State asked the trial court to take judicial notice of the trial court's file and the trial court affirmed to the prosecutor that it had received the presentence investigation report (PSI). After a brief pause in the proceedings while the trial court reviewed the file, the trial court asked appellant why she was seeking drug treatment now when she had been "in the system since 1978." When the trial court brought up the possibility of treatment at a substance abuse felony punishment facility (SAFPF), appellant explained she did not want to pursue that route because it would require a long confinement in a prison-like setting. The trial court then described appellant's eleven prior arrests and asked her whether it made sense for her to receive community supervision. After a short dialogue between the trial court and appellant about one of the offenses and appellant's pleas for community supervision and drug treatment, the trial court accepted appellant's pleas of guilty and true and assessed punishment in each case at ten years confinement and a $1000 fine. On appeal, the State contends appellant has waived her complaint by failing to object to the trial court's comments regarding her prior arrests and the trial court's consideration of the arrests in assessing punishment. We agree. By failing to object in the trial court, appellant has waived error. See Tex.R.App.P. 33.1(a). See also Rogers v. State, 640 S.W.2d 248, 264-65 (Tex.Crim.App. 1982) (op. on second reh'g) (en banc) (explaining generally the rationale for requiring objection to preserve error); Duvall v. State, 59 S.W.3d 773, 779 (Tex.App.-Austin 2001, pet. ref'd) (finding complaint about trial court's consideration of victim impact punishment evidence not preserved in absence of objection). Moreover, even if appellant had objected, her complaint lacks merit. Appellant contends the trial court's consideration of the arrests was improper because the trial court was relying on its personal knowledge of arrests that were not admitted into evidence and proven beyond a reasonable doubt. The record, however, does not show the trial court possessed any knowledge about appellant beyond what appeared in its file. The trial court judge expressly stated he did not know appellant. We conclude, as the State suggests, that the trial court must have obtained its information about appellant's arrests from the PSI. The trial court acknowledged it had received a copy of the PSI. A PSI may contain information about a defendant's criminal history including unadjudicated arrests. See Tex. Code Crim. Proc. Ann. art. 42.12, § 9 (Vernon Supp. 2003); Fryer v. State, 68 S.W.3d 628, 631-32 (Tex.Crim.App. 2002). Apparently, the PSI in this case did contain arrest information because appellant testified she had discussed her criminal history with the community supervision officer who was preparing the PSI. The trial court did not act improperly in considering criminal history information in the PSI in evaluating appellant's request for community supervision and in determining the appropriate punishments. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(d) (Vernon Supp. 2003); Fryer, 68 S.W.3d at 631-32; Garcia v. State, 930 S.W.2d 621, 623 (Tex.App.-Tyler 1996, no pet.); see also McNeese v. State, 468 S.W.2d 800, 801 (Tex.Crim.App. 1971). Therefore, we overrule appellant's sole point of error. We affirm the trial court's judgments.