Opinion
No. 06-05-00181-CR
Submitted: February 2, 2006.
Decided: March 21, 2006. DO NOT PUBLISH.
On Appeal from the 188th Judicial District Court, Gregg County, Texas, Trial Court No. 31864-A.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
After Harold Bernard Johnson pled guilty and was convicted of two bail-jumping offenses, the trial court consulted a presentence investigation (PSI) report containing unadjudicated offenses, before sentencing Johnson to serve seven years' confinement for each offense, to run concurrently. Johnson complains on appeal, in each case, only that it was error for the trial court to consider the unadjudicated offenses in sentencing him. We disagree and affirm the judgment. Basing his argument on a line of United States Supreme Court cases beginning with Apprendi v. New Jersey, Johnson argues that the trial court's consideration of these unadjudicated offenses in the PSI report effectively allowed the court to consider prior criminal acts without requiring the State to prove beyond a reasonable doubt that he had committed those crimes. See Shepard v. United States, 544 U.S. 13, 161 L.Ed.2d 205 (2005); United States v. Booker, 543 U.S. 220 (2005); Apprendi v. New Jersey, 530 U.S. 466 (2000). The Apprendi line of cases holds that any fact, other than a prior conviction which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Booker, 543 U.S. 220 (emphasis added). Johnson asks us to extend that reasoning. He argues that the cases hold, at their core, that a defendant has the right not to have his or her punishment increased by findings or factors either not proven beyond a reasonable doubt or admitted by the defendant. That position would require us to go beyond the holding of those cases. Apprendi reviewed a state penalty scheme that allowed a jury to convict a defendant of a second-degree offense based on a finding that he possessed a prohibited weapon. If the trial court found that his purpose for possessing the weapon was "to intimidate" his victim on the basis of a particular characteristic the victim possessed, the trial court could then impose punishment for a first-degree offense. The Court found the practice unconstitutional, ultimately holding that it was an unacceptable departure from the jury system. The Court reiterated that judges could certainly "exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute." Apprendi, 530 U.S. at 481. The Court then found the New Jersey scheme invalid because it violated the concept that "any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490 (emphasis added). Booker restated Apprendi in slightly different language:
Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.Booker, 544 U.S. 220 (emphasis added).
Shepard described the constitutional underpinnings as guaranteeing a jury standing between the defendant and the power of the state, and they guarantee a jury's finding of any disputed fact essential to increase the ceiling of a potential sentence.Shepard, 544 U.S. at 24 (emphasis added). Each of these holdings assumes that the additional fact being considered moves the maximum proper punishment to a higher level. That is not the situation posed by this appeal. Because the unadjudicated offenses in the PSI report did not increase Johnson's sentence beyond the statutory maximum for the offense, the Apprendi line of cases does not apply. Even if we are wrong on that point, Johnson did not object to this portion of the PSI report, nor did he object to the trial court's consideration of these matters during sentencing. See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(e) (Vernon Supp. 2005) (trial court to allow defense to comment on, and, with court's approval, contest facts stated in, PSI report). His contention that his constitutional rights were violated was not preserved for review. See Tex.R.App.P. 33.1; Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990) (alleged denial of confrontation was not fundamental, thus waived by failure to object); Duvall v. State, 59 S.W.3d 773, 779 (Tex.App.-Austin 2001, pet. ref'd); Gerhardt v. State, 935 S.W.2d 192, 196 (Tex.App.-Beaumont 1996, no pet.). We affirm the judgment.
See Tex. Pen. Code Ann. § 38.10 (Vernon 2003).
The PSI report contained Johnson's "criminal history," including several felony arrests and thirteen misdemeanor arrests that had not resulted in convictions.