Jonte Lamar Horton v. State

AFFIRM; and Opinion Filed October 18, 2018.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-18-00372-CR No. 05-18-00373-CR No. 05-18-00374-CR

JONTE LAMAR HORTON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 363rd Judicial District Court Dallas County, Texas

Trial Court Cause Nos. F17-24398-W, F17-24399-W & F17-24400-W

MEMORANDUM OPINION

Before Justices Lang, Fillmore, and Schenck Opinion by Justice Fillmore

Jonte Lamar Horton was convicted of aggravated assault, aggravated robbery, and aggravated kidnapping and sentenced to twelve years’ imprisonment in each case. In two points of error, Horton argues the trial court erred by neither reviewing the presentence investigation (PSI) report nor allowing the defense a chance to respond to the report. We affirm the trial court’s judgments.

On two successive evenings, Horton unsuccessfully attempted to rob Huan Pham and Jawad Ali. Horton was charged with aggravated assault with respect to his attempt to rob Pham and with aggravated robbery and aggravated kidnapping with respect to his attempt to rob Ali. Without the benefit of a plea bargain, Horton pleaded guilty to all three charges, and the trial court “passed” the cases for sentencing. While awaiting the sentencing hearing, Horton was interviewed by the “probation department” and a PSI report was evidently prepared.1

At a subsequent hearing, Horton informed the trial court that he was not guilty of the aggravated kidnapping of Ali, and the trial court granted Horton a new trial on the aggravated kidnapping charge. In a combined bench trial in all three cases, the trial court heard evidence relating to the kidnapping of Ali and relevant to punishment in all three cases, including mitigating evidence offered by Horton. The trial court found Horton guilty of all three charges and sentenced him to twelve years’ imprisonment in each case.

Horton argues the trial court erred by not reviewing the PSI report and not allowing the defense to comment on the report. Unless certain exceptions apply, the trial court is required to direct a supervision officer to prepare a PSI report in a felony case. TEX. CODE CRIM. PROC. ANN. art. 42A.252(a), (c);2 Griffith v. State, 166 S.W.3d 261, 262 (Tex. Crim. App. 2005). Unless waived by the defendant, at least forty-eight hours prior to the imposition of sentence, the trial court must permit the defendant or his counsel to read the PSI report. TEX. CODE CRIM. PROC. ANN. art. 42A.255(a). The trial court must also allow the defendant or his counsel to comment on the PSI report and, with the approval of the court, introduce testimony or other information alleging a factual inaccuracy in the report. Id. art. 42A.255(b). However, a complaint regarding the trial court’s failure to comply with its statutory duties pertaining to a PSI report may be forfeited by inaction. Wright v. State, 873 S.W.2d 77, 83 (Tex. App.—Dallas 1994, pet. ref’d) (concluding complaints regarding trial court’s failure to comply with statute requiring preparation and review of PSI report were subject to procedural default and could be forfeited by inaction); see also Griffith, 166 S.W.3d at 263 (concluding defendant may waive right to preparation of PSI report required by article 41A.252).3

Horton did not object at trial that the trial court did not consider the PSI report or did not allow the defense to comment on the report. Horton, therefore, failed to preserve his complaints relating to the PSI report for appellate review. See Wright, 873 S.W.2d at 82–83; see also TEX. R. APP. P. 33.1(a) (before party can raise complaint on appeal, he must have objected in trial court and obtained ruling on objection).4

However, even if Horton had preserved his complaints, we would conclude he failed to identify any error by the trial court. “Where procedural requirements do not affirmatively appear in the record to have been violated, a presumption of regularity of the trial judge’s ruling must prevail.” Jones v. State, 646 S.W.2d 449, 449 (Tex. Crim. App. 1983) (per curiam); see also Frame v. State, 615 S.W.2d 766, 770 (Tex. Crim. App. [Panel Op.] 1981) (noting that, when record is silent, appellate court must presume compliance with procedural rules).5 The burden is on the appellant to overcome the presumption. Wright, 873 S.W.2d at 80. In this case, there is no indication in the appellate record that the trial court did not review the contents of the PSI report or did not allow the defense to comment on the report. Rather, the record is simply silent on the matter. Accordingly, we must presume the trial court complied with the procedural requirements relating to the PSI report. See id.

We resolve Horton’s two points of error against him and affirm the trial court’s judgments.

/Robert M. Fillmore/ ROBERT M. FILLMORE JUSTICE

Do Not Publish TEX. R. APP. P. 47 180372F.U05 No. 05-18-00372-CR V. Trial Court Cause No. F17-24398-W.

Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Lang and Schenck participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. No. 05-18-00373-CR V. Trial Court Cause No. F17-24399-W.

Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Lang and Schenck participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. No. 05-18-00374-CR V. Trial Court Cause No. F17-24400-W.

Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Lang and Schenck participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.