Opinion
No. 04-03-00872-CR
Delivered and Filed: July 7, 2004. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-7105W, Honorable Mary Román, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice and Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Cornelius Marshall ("Marshall") pled guilty to possession of cocaine without the benefit of a plea bargain agreement. The trial court sentenced Marshall to two years in a state jail facility. Marshall's sole issue on appeal is that trial counsel was ineffective in failing to object to the absence of a pre-sentence investigation report at the sentencing hearing. We affirm the trial court's judgment. Marshall concedes that the pre-sentence investigation report was ordered; however, Marshall asserts that the record does not indicate that the report was filed. The State counters that the record appears to demonstrate that the report was considered based on a reference made by defense counsel to Marshall's record being before the judge and a reference made by the trial judge that she had Marshall's criminal history before her. The judgment in this case contains the following recital, "It is therefore ORDERED, ADJUDGED AND DECREED by the Court that the defendant is guilty of the offense stated above, and, the Court having reviewed the presentence investigation report, the punishment is fixed as determined by the Court. . . ." Recitations in a judgment are binding unless the record otherwise affirmatively contains proof of their falsity. Robinson v. State, 739 S.W.2d 795, 799 (Tex.Crim.App. 1987); Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App. 1984). Because the record does not contain any proof that the pre-sentence investigation report was not reviewed by the trial court, we are bound by the recitation that the trial court reviewed the report. Accordingly, defense counsel was not ineffective in failing to object to its absence. The judgment of the trial court is affirmed.