Victor Lee Suarez v. State

Affirmed and Memorandum Opinion filed May 15, 2007 Affirmed and Memorandum Opinion filed May 15, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00604-CR ____________ VICTOR LEE SUAREZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 1050684 M E M O R A N D U M   O P I N I O N Appellant, Victor Lee Suarez, appeals from his conviction for assault-family violence-second offense. After appellant pleaded guilty, the trial court ordered a presentence investigation (PSI) report and subsequently found appellant guilty and sentenced him to fourteen years in prison. On appeal, appellant contends that the trial court violated his federal and state constitutional rights by (1) reviewing the PSI report prior to finding him guilty, and (2) sentencing him to a punishment that was grossly-disproportionate to the offense. We affirm. Review of PSI Report In his first two issues, appellant contends that the trial court violated his United States and Texas constitutional rights to due process by reviewing the PSI report prior to finding him guilty. See U.S. Const. amend. V, XIV; Tex. Const. art. I, ' 19. On March 28, 2006, appellant pleaded guilty and signed a stipulation of evidence and judicial confession. The trial judge then ordered a PSI. On May 31, 2006, after acknowledging that she had reviewed the PSI report, the judge found appellant guilty and sentenced him. Generally, it is considered a violation of the United States and Texas constitutions for a trial court to review a PSI report prior to determining a defendant=s guilt. E.g., Baldridge v. State, 77 S.W.3d 890, 892 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (citing State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 7 (Tex. Crim. App. 1983)). However, we have previously held that a defendant=s constitutional rights are not violated when there was no evidence the judge considered the report until after the defendant had pleaded no contest, signed a judicial confession, and stipulated to the evidence of his guilt. Id. (citing Blalock v. State, 728 S.W.2d 135, 138‑39 (Tex. App.CHouston [14th Dist.] 1987, pet. ref=d)); see also Wissinger v. State, 702 S.W.2d 261, 263 (Tex. App.CHouston [1st Dist.] 1985, pet. ref=d). This is exactly what occurred in the present case. Accordingly, for the reasons stated in these prior opinions, we find that the trial court did not violate appellant=s constitutional rights by reviewing the PSI report prior to finding appellant guilty. We overrule appellant=s first two issues. Punishment In his third and fourth issues, appellant contends that the sentence imposed by the trial court violates the United States and Texas constitutional prohibitions against cruel and unusual punishment. See U.S. Const. amend. VIII, XIV; Tex. Const. art. I, ' 13. ASubject only to a very limited, exceedingly rare, and somewhat amorphous Eighth Amendment gross‑disproportionality review a punishment that falls within the legislatively prescribed range, and that is based upon the sentencer=s informed normative judgment, is unassailable on appeal.@ Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006) (internal quotations omitted). Appellant acknowledges that his punishment was within the legislatively prescribed range but urges that Aunder the unique facts of this case,@ the sentence was constitutionally excessive. However, the only Afacts@ identified by appellant are that (1) he was involved in an altercation with his common law wife, (2) he did not take full responsibility for his actions, and (3) he had previously been arrested for numerous assaults and other crimes. Clearly, each of these items supports a stiffer penalty for appellant, not a more lenient one. Accordingly, we find that the trial court=s assessment of punishment within the statutory range did not constitute cruel and unusual punishment. Cf. Baldridge, 77 S.W.3d at 893-94 (holding that Athe unique facts of this case@ identified by the defendant were not compelling and did not warrant a finding that the sentence was grossly disproportionate). We overrule appellant=s third and fourth issues. We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed May 15, 2007. Panel consists of Chief Justice Hedges and Justices Hudson and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b).