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holding that error was not preserved where the defendant did not object to the trial court's consideration of the PSI
Summary of this case from Jenkins v. StateOpinion
No. 05-07-01352-CR
Opinion issued August 27, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 416-80024-07.
Before Justices MOSELEY, FRANCIS, and LANG.
Charles Reagan Karnes waived a jury and pleaded guilty to aggravated assault involving family violence. The trial court assessed punishment at imprisonment for twenty years and a $10,000 fine. In two points of error, appellant contends the sentence is grossly disproportionate to the offense and the trial court erred in considering the presentence investigation report (PSI). We affirm the trial court's judgment as modified. In his first point of error, appellant argues the sentence is grossly disproportionate to the offense given the fact that a psychiatrist testified appellant's anger issues were treatable, and appellant detailed his voluntary psychiatric care. Appellant asserts that because he apologized for his actions and vowed to do whatever he was ordered to do to help better himself, he should have received a lesser sentence. The State responds appellant has failed to preserve his complaint for appellate review and, alternatively, appellant failed to establish that the sentence was excessive. Appellant did not complain about the sentence either at the time it was imposed or in a motion for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.); see also Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996). Moreover, the sentence is within the statutory punishment range for the offense. See Tex. Pen. Code Ann. § 12.33 (Vernon 2003); Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd). We overrule appellant's first point of error. In his second point of error, appellant argues the trial court erred in considering the PSI because it was not admitted into evidence, no party requested the trial court take judicial notice of the PSI, and it is not included in the record. The State responds the trial court did not err in considering the PSI, and appellant did not designate the PSI's inclusion in the record. A trial court is expressly authorized to consider a PSI when assessing punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(d) (Vernon Supp. 2007). A PSI report is not designated as part of the mandatory appellate record that the trial court is required to provide in every criminal appeal. See Tex. R. App. P. 34.5(a)(2). But, any party may direct the clerk of the court or the court reporter to prepare and file in the appellate court a supplement containing any omitted portion of the record. See Tex. R. App. P. 34.5(c)(1). Here, appellant did not object to the trial court's consideration of the PSI because it had not been admitted into evidence. See Tex. R. App. P. 33.1(a)(1); see also Bell v. State, 155 S.W.3d 635, 639 (Tex.App.-Texarkana 2005, no pet.). Moreover, appellant could have requested a supplement to the record but did not do so. We conclude the trial court did not err in considering the PSI. We overrule appellant's second point of error. We note the record shows appellant had no plea bargain agreement as to punishment, and the trial judge orally pronounced a $10,000 fine when it imposed the sentence. The trial court's judgment, however, recites the terms of a plea bargain and does not include the fine. Thus, the judgment is incorrect. We modify the trial court's judgment to show there was no plea bargain agreement as to punishment, and the fine is $10,000. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, the trial court's judgment is affirmed.