Nos. 05-03-01198-CR, 05-03-01199-CR, 05-03-01200-CR, 05-03-01201-CR
Opinion Filed June 21, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F02-53326-IJ, F02-53328-IJ, F02-53329-IJ, F02-72926-KJ. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
Appellant Jose Guadalupe Soria pleaded guilty and was convicted of four offenses of aggravated sexual assault of a child under fourteen years of age. On July 24, 2003, he was sentenced to concurrent sentences of life imprisonment for three offenses and a consecutive sentence of life imprisonment for the fourth offense. Appellant brings his appeal on two issues. First, he claims that the trial court applied an incorrect arrest date and that appellant is entitled to additional credit for time already served in jail. Second, he claims that the trial court should have ordered an alcohol and drug evaluation prior to appellant's sentencing. We affirm the trial court's judgments.
Background
Appellant sexually assaulted his girlfriend's two young daughters while he was living with the family. Both daughters testified that appellant raped them more than once and had sex with their mother in front of them. The victims' mother, Karen Dawn Lee, testified that she allowed the sexual assaults to continue over a period of years, and pleaded guilty to a charge of aggravated sexual assault of a child. The trial court accepted appellant's guilty pleas and ordered a pre-sentence investigation (PSI). After submission of the PSI to the trial court, appellant was sentenced to life in prison on all four counts. Additional Credit for Jail Time
A criminal defendant is entitled to credit on his sentence for time served in jail from the time of his arrest until the trial court sentences him. Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (Vernon Supp. 2004); Ex parte Kuban, 763 S.W.2d 426, 426 (Tex.Crim.App. 1989) (en banc). The trial court calculated credit for appellant's incarceration from July 25, 2002 to July 24, 2003. Appellant contends that he was first arrested on July 21, 2002 and therefore should receive four additional days of credit on his sentence. The PSI report, which was completed with information provided by the appellant, showed an arrest date of July 21, 2002. The trial court's written judgments, however, allocated credit for time served beginning with an arrest date of July 25, 2002. Appellant argues that this court should reform the trial court's judgments to reflect the July 21, 2002 arrest date because we can get the information necessary to make the correction from the PSI report found in the record. The State argues that there is a presumption that the trial court's written judgment is accurate absent contrary evidence, and that a PSI report with the arrest date provided by the defendant is not sufficient evidence for reformation of the judgment. While appellant did not preserve this issue for appeal at the trial court level, an appellate court may reform a trial court judgment by an affirmative finding when necessary to "make the record speak the truth," even absent objection or request by a party. Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.-Dallas 1991, pet. ref'd) (en banc); French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992) (en banc) (citing Asberry, 813 S.W.2d at 531); Joseph v. State, 3 S.W.3d 627, 643 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (citing Asberry, 813 S.W.2d at 529-30); see Tex.R.App.P. 43.2(b). Consequently, where an appellate court has the "necessary data and evidence before it" in order to reform a judgment, it may do so. Banks v. State, 708 S.W.2d 460, 462 (Tex.Crim.App. 1986) (en banc); Haight v. State, 772 S.W.2d 159, 161 n. 3 (Tex. App.-Dallas 1989, pet. ref'd); See Asberry, 813 S.W.2d at 529. In this case, the only item in the record containing evidence of an arrest date that conflicts with the judgments is the PSI report. The fact that appellant himself provided the arrest date information in that report may make it unreliable. See Ex parte Lemay, 525 S.W.2d 1, 3 (Tex.Crim.App. 1975) (the use of petitioner's testimony alone was not enough to overcome the presumption found in the trial court's judgment that petitioner had proper assistance of counsel); Egger v. State, 62 S.W.3d 221, 225 (Tex. App.-San Antonio 2001, no pet.) (defendant's testimony alone that he did not knowingly waive a jury trial was insufficient to counter the judgment's recitation that a jury trial had been waived). There is no official record of the arrest date available for review by this court and no other direct proof of the correct arrest date in the record. A trial court judgment should not be reformed without "direct proof of its falsity." Johnson v. State, 72 S.W.3d 346, 349 (Tex.Crim.App. 2002) (quoting Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim. App. 1984) (op. on reh'g)). There is a presumption of regularity and truthfulness of a trial court's written judgment in the absence of an affirmative showing otherwise. Breazeale, 683 S.W.2d at 450; cf. Hanie v. State, 820 S.W.2d 7, 9 (Tex.App.-Dallas 1991, pet. dism'd) (the record directly contradicted language in the trial court's judgment that defendant executed written jury waivers in open court, so the corresponding presumption of regularity of the judgment was overcome). There is no affirmative showing in the record sufficient to defeat the presumption of regularity and truthfulness of the judgments in this case because there is no official arrest record available for appellate review. See Steinocher v. State, 127 S.W.3d 160, 163 (Tex. App.-Houston [1st Dist.] 2003, pet. dism'd) (appellant argued for additional credit for time served but the record was unclear about time served and the trial court's judgment was upheld). Appellant's first point of error is overruled. Alcohol and Drug Evaluation
Under Texas law, if the trial judge determines that "alcohol or drug abuse may have contributed to the commission of the offense," the judge shall order an evaluation before sentencing to determine whether alcohol or drug rehabilitation is appropriate. Tex. Code Crim. Proc. Ann. art. 42.12 § 9(h) (Vernon Supp. 2004). Appellant indicated in the PSI report that he was under the influence of drugs or alcohol at the time he committed these offenses, and that he used alcohol daily. Appellant's girlfriend, Karen Dawn Lee, also testified in court that he "drank a lot" and "would sit in the backyard drinking and crying." Appellant argues that because of these types of statements in the report and the testimony, the trial court should have determined that alcohol or drugs may have played a role in these offenses and it should have ordered a rehabilitation evaluation of him prior to his sentencing. The State argues, inter alia, that appellant did not timely preserve this issue for appeal. We conclude that appellant failed to preserve this issue for appellate review because he did not present a "timely request, objection, or motion" to the trial court. Tex.R.App.P. 33.1(a); see Smith v. State, 91 S.W.3d 407, 410 (Tex. App.-Texarkana 2002, no pet.) (defendant was not given a substance abuse evaluation before his sentencing, but the issue was not preserved for appellate review because counsel did not object at trial); Caster v. State, 87 S.W.3d 751, 752 (Tex. App.-Texarkana 2002, no pet.) (appellate review of sentencing by the trial court before defendant completed a substance abuse evaluation not allowed because issue was not preserved for appeal). Appellant's second point of error is overruled. We affirm the trial court's judgments.