Avila, Nathaniel v. State

NUMBER 13-99-257-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ____________________________________________________________________ NATHANIEL AVILA, Appellant, v. THE STATE OF TEXAS, Appellee. ____________________________________________________________________ On appeal from the 208th District Court of Harris County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Dorsey, Yañez, and Seerden(1) Opinion by Justice Yañez Appellant, Nathaniel Avila, pleaded guilty without a plea agreement to a charge of murder, was found guilty by the trial court, and was sentenced to forty-five years in the Texas Department of Criminal Justice, Institutional Division. With four points of error, appellant now challenges his conviction. We affirm. With his first two points of error, appellant argues that the trial court erred by reviewing appellant's presentence report prior to determining appellant's guilt, and that error constitutes a violation of appellant's due process rights under article 1, section 19 of the Texas State Constitution and the Fourteenth Amendment to the United States Constitution. The inspection of a presentence report prior to a finding of guilt violates due process under both the Texas and Federal constitutions. State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 7 (Tex. Crim. App. 1983); Vela v. State, 915 S.W.2d 73, 75 (Tex. App.--Corpus Christi 1996, no pet.). However, when a defendant has already judicially confessed, the trial court's review of a presentence report would not reasonably affect the trial court's opinion regarding the defendant's guilt. Vela, 915 S.W.2d at 75; Wissinger v. State, 702 S.W.2d 261, 263 (Tex. App.--Houston [1st Dist] 1985, pet. ref'd). In the case now before this Court, appellant requested a presentence report at the same time he pleaded guilty. Because the appellant confessed prior to the preparation of the report, and the trial court's inspection of it, the report could not have had an effect on the trial court's opinion regarding appellant's guilt. See Vela, 915 S.W.2d at 75; Wissinger, 702 S.W.2d at 263. Appellant's first two points of error are overruled. Appellant argues, in his third and fourth points of error, that his sentence violates his state and federal constitutional rights against cruel and unusual punishment. See U. S. Const. amend. VIII; Tex. Const. art. I § 13. Punishment falling within the applicable range prescribed by the legislature is not excessive, cruel or unusual. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Morales v. State, 897 S.W.2d 424, 427 (Tex. App.--Corpus Christi 1995, pet. ref'd). Appellant was found guilty of murder, a first degree felony. See Tex. Pen. Code Ann. § 19.02(b)(c) (Vernon 1994). A defendant adjudged guilty of a first degree felony "shall be punished by imprisonment in the institutional division . . . for any term of not more than [ninety-nine] years or less than [five] years." Tex. Pen. Code Ann. § 12.32(a) (Vernon 1994). Because appellant was sentenced within the statutorily prescribed range of punishment, we do not find his sentence to be cruel or unusual. Appellant's third and fourth points of error are overruled. The judgment of the trial court is AFFIRMED. LINDA REYNA YAÑEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 15th day of March, 2001. 1. Retired Chief Justice Robert Seerden assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).