Andrew Wilson McDonald v. State

Affirmed and Memorandum Opinion filed December 9, 2008 Affirmed and Memorandum Opinion filed December 9, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00999-CR ____________ ANDREW WILSON MCDONALD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 209th District Court Harris County, Texas Trial Court Cause No. 1089994 M E M O R A N D U M   O P I N I O N Appellant Andrew Wilson McDonald pleaded guilty and received life imprisonment for aggravated sexual assault, enhanced with two prior felony convictions. On appeal, appellant contends that the trial judge violated his constitutional rights to due process and due course of law by reviewing his presentence investigation (PSI) report before finding appellant guilty. Appellant also challenges his punishment as unconstitutionally cruel and unusual. We affirm. I. Background Appellant pleaded guilty to aggravated sexual assault on an elderly individual after receiving admonishments from the trial court, including an admonishment that the punishment for a habitual offender was imprisonment either for life or for a term ranging from twenty-five to ninety-nine years. The trial court waived a formal finding of guilt and recessed the proceedings pending a PSI report. Appellant did not object to the trial court reviewing the PSI report at that time, nor did he object at punishment after the trial judge stated he had read the report. After the trial judge reviewed the PSI report, a punishment hearing was conducted. The elderly victim testified that she feared for her life during the assault, which took place in her home. She also stated she still experiences feelings of fear and would feel safer if the judge imposed a lengthy prison sentence. After closing arguments, the trial court made a formal finding of guilt and sentenced appellant to life imprisonment. Appellant did not object to the punishment at that time. In four issues, appellant now contends the trial court=s review of the report after appellant=s guilty plea but before making a formal finding of guilt violated his rights to due process and due course of law and the sentence imposed constituted cruel and unusual punishment under the Federal and Texas Constitutions. II. Analysis In his first two issues, appellant asserts the trial court=s review of the PSI report prior to formally finding him guilty violated his due process and due course of law rights under the Federal and Texas Constitutions. U.S. Const. amends. V, XIV; Tex. Const. art. I, ' 19; see Baldridge v. State, 77 S.W.3d 890, 892 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (trial court=s review of PSI report prior to guilt determination generally violates due process and due course of law rights). Appellant admits he failed to object to the trial court=s review of the PSI report, but contends that no objection was required because the error was fundamental and unwaivable. As authority for this proposition appellant cites two cases from the Court of Criminal Appeals, State ex rel. Turner v. McDonald, 676 S.W.2d 375 (Tex. Crim. App. 1984), and State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 7 (Tex. Crim. App. 1983). However, while the Court of Criminal Appeals did not address whether preservation of these complaints was required in the McDonald cases, it has since made clear that due process and due course of law violations are waived when a defendant fails to assert them in the trial court. See Cockrell v. State, 933 S.W.2d 73, 88B89 (Tex. Crim. App. 1996) (preservation requires timely objection); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (en banc) (finding due process and due course of law complaints were not preserved for review absent timely, specific objection). Accordingly, we conclude that appellant waived his first two issues by not making a specific, timely objections in the trial court. Even if appellant had preserved these complaints for our review, they are without merit. We have previously held that where (as here) the defendant has pleaded guilty, signed a judicial confession, and stipulated to evidence of guilt, the trial judge may review a PSI report before entering a finding of guilt. Baldridge, 77 S.W.3d at 892. We therefore overrule appellant=s first two issues. In his third and fourth issues, appellant contends that the life sentence assessed by the trial court violated his freedom from cruel and unusual punishment under the Federal and Texas Constitutions. U.S. Const. amend. VIII; Tex. Const. art. I, ' 13. Complaints regarding violation of these constitutional rights are waivable. See Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (en banc) (appellant could not assert error regarding sentencing without raising that error in the trial court); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (freedom from cruel and unusual punishment under both the Texas and Federal Constitutions waived by non-preservation in the trial court). Prior to sentencing, appellant requested leniency and argued that the minimum sentence under the punishment range would be tantamount to a life sentence. However, appellant never objected to the sentence as violating his constitutional rights at the time it was announced, nor did he do so in a post-trial motion. Therefore, we conclude that appellant waived his third and fourth issues by failing to preserve error. As with the first two issues, had appellant preserved these complaints for review, he still would not prevail. A sentence assessed by a trial 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 893B94. As appellant acknowledged when he pleaded guilty, the statutory range for the charged offense was imprisonment for life or for any term between twenty-five and ninety-nine years. The life sentence imposed by the trial judge was within this range. Moreover, appellant=s challenge under the Federal Constitution fails because the punishment imposed is not disproportionate to the crime committed. See id. at 893. A punishment is grossly disproportionate in violation of the federal constitutional protection against cruel and unusual punishment when the sentence is shown to be extreme based on an objective comparison of the gravity of the offense with the severity of the sentence. Id. Here, appellant (a habitual offender) sexually assaulted an elderly victim in her home, putting her in fear for her life and causing her lasting uneasiness. Under these circumstances, we cannot say that life imprisonment is grossly disproportionate to appellant=s crime. Because the sentence is not grossly disproportionate, further analysis of this issue is unnecessary. See id. For these reasons, we overrule appellant=s third and fourth issues. Having overruled all of appellant=s issues, we affirm the trial court=s judgment. /s/ Leslie B. Yates Justice Judgment rendered and Memorandum Opinion filed December 9, 2008. Panel consists of Justices Yates, Seymore, and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b).