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Gonzales v. State4/7/1999
ellant's seventh issue.
Failure to Admonish
In his sixth issue, Gonzales contends that the trial court erred and violated his right to a fair trial because it failed to properly admonish him. Specifically, Gonzales disagrees with the process undertaken by the court in which he was admonished with other defendants. Gonzales asserts that he was admonished as if he had pled guilty pursuant to a plea bargain. Gonzales fails to cite any authority to support his contention that the trial court erred in its admonishment.
The requisite admonishments for a defendant who enters an open plea of guilty are outlined under article 26.13 of the Texas Code of Criminal Procedure. The record reflects that Gonzales was properly admonished pursuant to article 26.13. The trial court read the charge and stated the correct range of punishment. The trial court also admonished Gonzales as to the possibility of deportation. In addition, he was questioned as to his competency and the voluntariness of his plea. Moreover, written admonishments were administered which Gonzales subsequently signed. Given these facts, there is nothing in the record to show that Gonzales was unaware of the consequences of his plea and that he was misled or harmed by the admonishments of the court. See Tex. Code Crim. Proc. Ann. art. 26.13(4) (Vernon 1989). Pre-Sentence Investigation Report and Alcohol Evaluation
In his fourth and fifth issues, Gonzales contends that the trial court erred and denied Gonzales the right to a fair trial by failing to provide him with a pre-sentence investigation report ("PSI")and alcohol evaluation prior to sentencing. The code of criminal procedure provides that in felony cases, "before the imposition of sentence by a Judge[,] . . . the Judge shall direct a supervision officer to report to the Judge in writing on the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information related to the defendant or the offense requested by the Judge." Tex. Code Crim. Proc. Ann. art. 42.12 § 9(a) (Vernon Supp. 1999). Article 42.12 § 9(h) further provides that where a Judge determines that alcohol or drugs may have contributed to the commission of the offense, the Judge "shall direct a supervision officer . . . to conduct an evaluation to determine the appropriateness of and course of conduct necessary for alcohol or drug rehabilitation for a defendant and to report that evaluation to the Judge." Tex. Code Crim. Proc. Ann art. 42.12 §9(h) (Vernon Supp. 1999).
A written pre-sentence investigation report is mandatory to the extent that it requires the court to direct a probation officer to prepare and provide a PSI report before the court sentences the defendant. Wright v. State, 873 S.W.2d 77, 81 (Tex. App.-Dallas 1994, pet. ref'd). In Wright, the court of appeals was called upon to construe the language of § 9(a) under article 47.12. The appeals court held that a trial court must order the report before it issued its judgment ordering the imposition of punishment be carried out. See id (explaining the difference between "before . . . punishment" as argued by defendant on appeal and "before . . . sentence" as used in the statute). Where the trial court assesses punishment, its decision to order a PSI report is discretionary. Summers v. State, 942 S.W.2d 695, 696 (Tex. App.-Austin 1997, no pet.). The right to such a report can be waived by the defendant where he or she fails to call the trial court's attention to the lack of a PSI report after punishment is assessed, but before sentence is imposed. Id. at 83.
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