JAMIE MARCUS PINSON JANEY MARCUS PINSON APPELLANT v. THE STATE OF TEXAS STATE (2016)

MEMORANDUM OPINION 1

Appellant Jamie Marcus Pinson a.k.a. Janey Marcus Pinson appeals his conviction for possession of a controlled substance of four grams or more, but less than 200 grams, namely: methamphetamine. In his sole issue, Pinson argues that the trial court reversibly erred in determining his sentence by relying on an incomplete presentence investigation (PSI) report, which lacked information on Pinson's military history. Because Pinson did not object to the incompleteness of the PSI report in the trial court and because the failure to include military history in a PSI report is not fundamental error, we will affirm.

Pinson signed written plea admonishments and entered an open plea of guilty to the possession charge. The trial court deferred a finding of guilt pending the preparation of a PSI report. At the outset of the sentencing hearing, the trial court stated on the record that Pinson and his attorney had been given the opportunity to review the PSI report. No objections were made to the PSI report. The trial court found Pinson guilty and sentenced him to nine years' imprisonment. Pinson then perfected this appeal.

In his sole issue, Pinson argues that the trial court reversibly erred by relying on an incomplete presentence investigation report in setting his sentence. Specifically, Pinson argues that the PSI report was incomplete because it did not provide the information required by Texas Code of Criminal Procedure article 42.12, section 9(l) regarding whether he was a current or former member of the state military forces or whether he was currently serving or had previously served in the armed forces of the United States in an active-duty status. See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(l) (West Supp. 2016).

An appellant's allegation that information contained in his PSI report is inaccurate does not render the PSI report inadmissible. Harris v. State, 416 S.W.3d 50, 52 (Tex. App.—Houston [1st Dist.] 2013, no pet.). “A defendant bears the burden of pointing out any material inaccuracy in the PSI report to the trial court at the time of the sentencing hearing.” Id.; see also Tex. Code Crim. Proc. Ann. art. 42.12, § 9(e). Moreover, to preserve for appeal an issue regarding an omission from a PSI report, a defendant is required to make a timely, specific objection and obtain a ruling on his objection from the trial court. See Tex. R. App. P. 33.1(a); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016); Everitt v. State, 407 S.W.3d 259, 263 (Tex. Crim. App. 2013); Welch v. State, 335 S.W.3d 376, 382 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd). Absent fundamental error, we cannot reverse on grounds of which the trial court was not made aware. See Boler v. State, 177 S.W.3d 366, 373 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd).

Here, Pinson did not object to the PSI report's omission of information regarding whether he was currently serving or had previously served in the military. Because Pinson did not object to the absence of this information from the PSI report, Pinson failed to preserve his complaint for appellate review. See Tex. R. App. P. 33.1(a); Harris, 416 S.W.3d at 52; Jefferson v. State, No. 14-12-00854-CR, 2013 WL 5969707, at *2 (Tex. App.—Houston [14th Dist.] Nov. 7, 2013) (mem. op., not designated for publication) (holding appellant waived error by not objecting to the PSI report based on the absence of information about his military service), rev'd on other grounds by Jefferson v. State, No. PD-1631-13, 2014 WL 1512963 (Tex. Crim. App. Apr. 16, 2014) (not designated for publication). Pinson argues, without citing any authority, that he was not required to object because the failure to provide a defendant with a complete PSI report “should be considered fundamental error because it is explicitly required by law.” A defendant, however, may waive any right secured to him by law, including the right to a PSI report. See Tex. Code Crim. Proc. Ann. art. 1.14(a) (West 2005); Summers v. State, 942 S.W.2d 695, 696–97 (Tex. App.—Houston [14th Dist.] 1997, no pet.). Moreover, when a defendant has pleaded guilty, as Pinson did here, any alleged error in a trial court's considering a PSI report before formal sentencing is not fundamental error and must be preserved with an objection. See Hollin v. State, 227 S.W.3d 117, 123 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd).

Because Pinson did not object to the incompleteness of the PSI report in the trial court and because the failure to include military history in a PSI report is not fundamental error, we overrule his sole issue and affirm the trial court's judgment.

FOOTNOTES

1.   See Tex. R. App. P. 47.4.

PER CURIAM