No. 01-06-00677-CR
Opinion issued October 18, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 228th District Court Harris County, Texas, Trial Court Cause No. 1047515.
Panel consists of Justices TAFT, HANKS, and HIGLEY.
GEORGE C. HANKS, JR., Justice.
Appellant, Wainer Renteria, pleaded guilty to the offense of aggravated robbery and was sentenced to 25 years' confinement. Tex. Pen. Code Ann. § 19.02(b)(3) (Vernon 2005). In his first and second points of error, appellant contends that the trial court violated his federal and state due process rights when it considered his pre-sentence investigation ("PSI") report before entering a formal finding of guilt. In his third and fourth points of error, appellant contends that the trial court's assessment of punishment at 25 years' confinement violates his rights against cruel and unusual punishment under the federal and state constitutions. We affirm.
Background
Appellant was charged by indictment with aggravated robbery alleged to have occurred on or about November 17, 2005. Appellant pleaded guilty without an agreed recommendation by the state as to punishment. The trial court accepted appellant's guilty plea, but withheld a formal finding of guilt so that a PSI report could be prepared for the sentencing hearing. At the sentencing hearing, the trial court considered the PSI report before entering a formal finding of guilt. Appellantwas sentenced by the trial court to 25 years' confinement. Review of the PSI Report
In his first and second points of error, appellant contends that the trial court violated his federal right to due process and his state right to due course of law when it considered his PSI report before entering a formal finding of guilt. Appellant, however, has waived these contentions. To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a). It is well-established that, almost every right, constitutional and statutory, may be waived by failing to object. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996) (waiver of rights under the Texas Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex.Crim.App. 1995) (waiver of rights under the United States Constitution); Smith v. State, 721 S.W.2d 844, 855 (Tex.Crim.App. 1986); Solis v. State, 945 S.W.2d 300, 301 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (waiver of cruel and unusual punishment claim); Wissinger v. State, 702 S.W.2d 261, 265 (Tex.App.-Houston [1st Dist.] 1985, pet. ref'd) (waiver of due process claim). Absent fundamental error, we cannot reverse on grounds of which the trial court was not made aware. See Boler v. State, 177 S.W.3d 366, 373 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). Appellant made no objection in the trial court either to the order of proceedings or to the consideration of the PSI report prior to a formal finding of guilt. When a defendant has pleaded guilty, any alleged error in a trial court's considering a PSI report before formal sentencing is not fundamental error. See Hollin v. State, No. 01-05-00820-CR, 2006 WL 3030293, at *4 (Tex.App.-Houston [1st Dist.] Oct. 26, 2006, pet. ref'd) (designated for publication). The error complained of is not, as appellant argues, fundamental and, therefore, an objection was required in order to preserve these issues for appellate review. See Tex. R. App. P. 33.1(a); Wissinger, 702 S.W.2d at 265. Consequently, appellant's failure to object waived these complaints. Accordingly, we overrule appellant's first and second points of error. Cruel and Unusual Punishment
In his third and fourth points of error, appellant contends that his 25-year sentence amounts to cruel and unusual punishment under both the federal and state constitutions because it is not proportionate to the offense committed. The record indicates that appellant made no objection in the trial court raising the issue of cruel and unusual punishment. He has, therefore, also waived these issues on appeal. See Tex. R. App. P. 33.1(a); Solis, 945 S.W.2d at 301. Accordingly, we overrule appellant's third and fourth points of error. Conclusion
We affirm the judgment of the trial court.