Opinion
No. 09-07-561 CR
Submitted on February 29, 2008.
Opinion Delivered May 28, 2008. DO NOT PUBLISH.
On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Cause No. 98270.
Before GAULTNEY, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
Tracey Lavance Brannon appeals, complaining that the trial court failed to order a presentence investigation report ("PSI") and failed to conduct a punishment hearing before his sentencing. We affirm the trial court's judgment.
Proceedings in the Trial Court
Brannon originally pled guilty to the offense of felony escape. See Tex. Pen. Code. Ann. § 38.06 (Vernon Supp. 2007). After admonishing Brannon, the trial court inquired into the proposed plea bargain agreement, accepted Brannon's plea, and reset his case for sentencing. On July 9, 2007, the trial court deferred adjudication of Brannon's guilt, placed him on community supervision for ten years, and assessed a $1,000 fine. Subsequently, the State filed a motion to revoke, which it later amended. At the revocation hearing on October 18, 2007, Brannon entered pleas of "true" to three of the five allegations concerning his failure to comply with the terms and conditions of his community supervision. During the revocation hearing, Brannon, Brannon's counsel, the State, and Brannon's community supervision officer all addressed the trial court. Based on the three allegations to which Brannon pled "true," the trial court revoked Brannon's community supervision, adjudicated his guilt, and imposed a sentence of confinement for ten years in the Texas Department of Criminal Justice-Institutional Division. Brannon did not file a motion for new trial. Brannon's appeal raises two issues. First, Brannon asserts that the trial court erred when it proceeded to sentencing without first obtaining a PSI. Second, Brannon contends that the trial court deprived him of a punishment hearing.Presentence Investigation Report
Brannon contends that in felony cases, presentence investigation reports are mandatory. The Texas Code of Criminal Procedure provides as follows: Except as provided by Subsection (g) of this section, before the imposition of sentence by a judge in a felony case . . . the judge shall direct a supervision officer to report to the judge 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 judge. . . . Tex. Code Crim. Proc. Ann. art. 42.12 § 9(a) (Vernon Supp. 2007). Subsection (g) provides that[a] judge is not required to direct an officer to prepare a presentence report in a felony case under this section if: (1) punishment is to be assessed by a jury; (2) the defendant is convicted of or enters a plea of guilty or nolo contendere to capital murder; (3) the only available punishment is imprisonment; or (4) the judge is informed that a plea bargain agreement exists, under which the defendant agrees to a punishment of imprisonment, and the judge intends to follow the agreement.Id. art. 42.12 § 9(g) (Vernon Supp. 2007). Generally, absent a statutory exception, a trial court must order the preparation of a PSI in a felony case when the defendant requests one. Tex. Code Crim. Proc. Ann. art. 42.12 § 9(a), (g); see generally Whitelaw v. State, 29 S.W.3d 129, 132-33 (Tex.Crim.App. 2000). However, the State contends the trial court's error for failing to obtain the required PSI can be waived. Brannon did not object to the trial court's failure to order a PSI prior to his sentencing or bring it to the trial court's attention by filing a motion for new trial. We hold that Brannon waived his complaint regarding the trial court's failure to obtain a PSI before determining his sentence. See Tex. R. App. P. 33.1; Buchanan v. State, 68 S.W.3d 136, 140 (Tex.App.-Texarkana 2001, no pet.); see also Eddie v. State, 100 S.W.3d 437, 445 (Tex.App.-Texarkana 2003, pet. ref'd); Wright v. State, 873 S.W.2d 77, 83 (Tex.App.-Dallas 1994, pet. ref'd). Accordingly, we overrule Brannon's first issue.