Lee, Randy Clyde v. State

Affirmed and Memorandum Opinion filed May 12, 2005 Affirmed and Memorandum Opinion filed May 12, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00397-CR ____________ RANDY CLYDE LEE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 964,237 M E M O R A N D U M   O P I N I O N Appellant pleaded “no contest” and was convicted of the aggravated kidnapping of his own son. The trial judge sentenced appellant to ten years’ imprisonment. On appeal, appellant contends his constitutional rights to due process and due course of law were violated when the trial judge reviewed appellant’s presentence investigation report before finding appellant guilty. Appellant also contends his punishment is cruel and unusual in violation of the United States and Texas constitutions. We affirm. Factual and Procedural Background In October of 2003, appellant had a serious argument with his wife. Appellant’s wife left their Houston home, leaving appellant with their son, who was only three years old. Appellant absconded with the young child to Plano, Texas, without his wife’s knowledge, and once there, telephoned his wife many times. In the course of these telephone calls, appellant threatened to kill himself and his three-year-old son. The police were able to determine appellant’s location by tracing appellant’s repeated threatening phone calls to his wife. Appellant was arrested in a hotel room near Plano, Texas, where he was staying with his son. The appellant also had firearms in the hotel room. Appellant was charged with the first-degree felony offense of aggravated kidnapping. After being admonished by the trial court, appellant waived his constitutional right to a jury trial and entered a plea of “no contest.” At his arraignment hearing, appellant requested that a presentence investigation (“PSI”) report be completed and that a sentencing hearing be held once the report was complete. The trial judge then set appellant’s case for a sentencing hearing. At the sentencing hearing, the trial judge reiterated that appellant had been admonished about the punishment range and had entered a plea of “no contest” before the judge announced his intention to consider the PSI report. Appellant’s attorney did not object to the trial court’s failure to formally enter a finding of guilt before the trial judge read the PSI report. After reading the PSI report and hearing the arguments of counsel, the trial court found appellant guilty and assessed punishment at ten years’ confinement. Appellant did not object at that time, nor did he file a motion for new trial raising any complaint about the length of his sentence. Analysis On appeal, appellant raises four points of error. All of appellant’s complaints concern purported violations of appellant’s constitutional rights, under either the United States or Texas Constitution, or both. In his first two points, appellant contends the trial court erred by reviewing the PSI report before finding him guilty and that this error violated his due process rights accorded by the United States Constitution and his due course of law rights accorded by the Texas Constitution. In his final two points, appellant contends his ten-year sentence constitutes a cruel and unusual punishment in violation of both the United States and Texas constitutions. Appellant’s Due Process and Due Course of Law Challenges Appellant’s first two complaints involve his due process and due course of law constitutional rights. U.S. Const. amends. V, XIV; Tex. Const. art. I, § 19. Specifically, appellant contends the trial judge violated appellant’s constitutional rights to due process and due course of law by reviewing the PSI report prior to finding appellant’s guilt. See Baldridge v. State, 77 S.W.3d 890, 892 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (“The general rule is that it is violative of the United States and Texas Constitutions for the trial court to review a presentence investigation report prior to a determination of guilt.”) (citing State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 7 (Tex. Crim. App. 1983)). We begin by noting that “even constitutional errors may be waived.” Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (en banc) (citing Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990)). The rights to due process and due course of law are among the constitutional errors that can be waived by failure to assert them in the trial court. See Curry, 910 S.W.2d at 496 (finding due process and due course of law complaints were not preserved for review in the absence of a timely, specific objection) (citing Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994)). Appellant never raised his objections at the trial court level. Accordingly, we find he has waived them. Even if appellant had preserved these complaints for our review, he still would not prevail. When the defendant has entered a plea of “no contest” as appellant did, courts in this state have held that a judge may review a PSI report before entering a finding of guilt. See, e.g., Wissinger v. State, 702 S.W.2d 261, 263 (Tex. App.—Houston [1st Dist.] 1985, pet. ref’d) (stating that this procedure did not violate appellant’s rights and did not risk any due process violations); accord Baldridge, 77 S.W.3d at 892 (following Wissinger when trial judge reviewed PSI report after appellant’s guilty plea but before entering a finding of guilt). We overrule appellant’s first two issues. Appellant’s Challenges to his Sentence as Cruel and Unusual Appellant’s second two complaints involve his constitutional right, under the United States and Texas constitutions, to be free from cruel and unusual punishment. U.S. Const. amend VIII; Tex. Const. art. I, § 13. These are also constitutional rights that can be waived. Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (en banc) (holding appellant could not assert error pertaining to his sentence without raising that error in the trial court); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (holding appellant waived right to be free from cruel and unusual punishments under both state and federal constitution by failing to raise them in the trial court). Again, appellant never complained about the length of his sentence in the trial court. Thus, appellant has waived these complaints as well.[1] See id. We overrule appellant’s final two issues. Conclusion Appellant did not preserve his constitutional challenges for appellate review, and, even had he preserved them, the challenges would not require reversal. We affirm his conviction. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed May 12, 2005. Panel consists of Chief Justice Hedges and Justices Fowler and Frost. Do Not Publish — Tex. R. App. P. 47.2(b). [1] As with the first two points, had appellant preserved these complaints for review, he still would not prevail. A punishment assessed by a judge is not cruel and unusual under the Texas constitution when, as in this case, it is within the statutory range. Baldridge, 77 S.W.3d at 890; Cooks v. State, 5 S.W.3d 292, 298 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (citing McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. [Panel Op.] 1978)). The statutory range for aggravated kidnapping, a first-degree felony, is from five to ninety-nine years. Tex. Code Crim. Proc. art. 12.32(a), 20.04(c). The ten-year sentence appellant received is at the low end of this range. Similarly, under the United States Constitution, appellant’s challenge would fail because it is not disproportionate to the crime appellant committed. See Baldridge, 77 S.W.3d at 893 (“[U]nder the United States Constitution, a state criminal sentence must be proportionate to the crime for which the defendant has been convicted.”) (citing Solem v. Helm, 463 U.S. 277, 290 (1983)). A punishment is grossly disproportionate in violation of the United States Constitution when “an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme.” Baldridge, 77 S.W.3d at 893 (citing Harmelin v. Michigan, 501 U.S. 957, 1004–06 (1991) (Kennedy, J., plurality op.)). In this case, appellant kidnapped his own son, took him to another city, kept him in a room where appellant had access to firearms, and threatened to kill the three-year-old boy. Under these circumstances, we cannot say that ten years’ imprisonment is grossly disproportionate to appellant’s crime. Because the sentence is not grossly disproportionate, we need not consider the remaining Solem factors and compare sentences for similar crimes in this jurisdiction and sentences for this crime in other jurisdictions. See Baldridge, 77 S.W.3d at 893 (stating other Solem factors would only be considered if the court infers the sentence is “grossly disproportionate to the offense”) (citing Harmelin, 501 U.S. at 1005).