      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-14-00107-CR



                                 Javier M. Lozano, Sr., Appellant

                                                   v.

                                    The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
     NO. 12-1802-K277, THE HONORABLE RICK J. KENNON, JUDGE PRESIDING



                                              ORDER


PER CURIAM

                Appellant Javier M. Lozano, Sr. has requested by letter that this Court direct the court

reporter to supplement the reporter’s record with a copy of the presentence investigation (PSI) report

prepared in connection with appellant’s sentencing by the trial court after appellant entered open

pleas of guilty to ten counts of sexual assault of a child. See Tex. Crim. Code Proc. art. 42.12, § 9(a).

We deny the request.

                In making his request, appellant relies on Rule 34.6(d) of the Texas Rules of

Appellate Procedure which allows for the filing of a supplemental reporter’s record containing

relevant items omitted from the record. See Tex. R App. P. 34.6(d). However, the reporter’s record

on appeal consists of the court reporter’s transcription of the proceedings (if the proceedings were

stenographically recorded as they were here), and any of the exhibits, that the parties to the appeal
designate. See Tex. R App. P. 34.6(a). While designated by appellant for inclusion in the reporter’s

record, the PSI report appellant now seeks to have added to the record was not admitted into

evidence as an exhibit at the punishment hearing. Appellant’s trial counsel did not request that the

PSI report be admitted into evidence nor did he object that it was not admitted into evidence or

included in the record. Having not been made part of the record, it has not been “omitted” from the

reporter’s record. Thus, Rule 34.6(d) does not apply. See Amador v. State, 221 S.W.3d 666, 676–77

(Tex. Crim. App. 2007) (“The record may be supplemented under the appellate rules if something

has been omitted, [but] the supplementation rules cannot be used to create new evidence.”) (quoting

Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004)).

               The dissent maintains that we should abate this appeal to allow the trial court to

decide whether the PSI report should be included in the record because “there appears to be a dispute

as to the accuracy and completeness of the reporter’s record with regard to the PSI report.” See Tex.

R. App. P. 34.6(e)(3). However, in his request appellant does not dispute the accuracy of the

reporter’s record (which demonstrates that the PSI report was not offered or admitted into evidence

at the punishment hearing). Nor does he contest the court reporter’s statements (contained in an

email communication to him that he attached to his letter request to this Court) indicating that the

PSI report is neither in her possession nor the clerk’s possession. Nor does appellant refute the court

reporter’s position that appellant is seeking a “supplementation that was not an exhibit at the trial.”

(emphasis added). Appellant simply asserts that the trial court requested and considered the PSI

during sentencing. This bare assertion does not demonstrate a dispute about the accuracy of the

reporter’s record or the exhibits included therein.



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                The dissent also complains that we have refused appellant the opportunity “to have

the trial court determine whether the PSI report, in whole or in part, was ‘seen by, used by, or

considered by the trial judge’ and thus should be included in the appellate record[.]” These are two

distinct issues. We readily acknowledge that the trial court, pursuant to the statute authorizing and

mandating a presentence investigation, looked at and possibly considered the PSI report, or portions

thereof, in assessing appellant’s punishment. However, that is a separate question from what is

appropriately included in the appellate record for our review. The trial court is authorized to

consider the information gathered in the PSI when assessing punishment.                   That does not

automatically render the report containing that information part of the record. In this case, the PSI

was not filed with the clerk or admitted as an exhibit at trial. Thus, it is not part of either the clerk’s

record or the reporter’s record. Accordingly, the absence of the report in the appellate record does

not render the record inaccurate or incomplete (as the dissent suggests)—the premise underlying the

supplementation rules of the Rules of Appellate Procedure. See Tex. R. App. P. 34.5(c) (providing

for supplementation of clerk’s record with omitted items), 34.6(d) (providing for supplementation

of reporter’s record with omitted items).

                We also disagree with the dissent’s assertion that the PSI report is relevant to this

appeal because “the contents of the report appear to be the basis for the trial court’s decision to stack

[appellant’s] sentences.”1 When assessing appellant’s sentence, the trial court referenced only one




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         We are in the unique position in this case of knowing the points of error appellant raises
on appeal because appellant’s brief was filed approximately three weeks after his letter request
regarding supplementation of the reporter’s record with the PSI report. Appellant did not seek an
extension of time to file the brief until his request had been addressed by this Court.

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specific portion of the PSI report: appellant’s admission that he engaged in sexual conduct with the

child victim far more often than the ten times that formed the basis of the ten counts to which he pled

guilty. Thus, we already know the contents of the PSI report that possibly formed, in part, the basis

of the trial court’s decision to cumulate appellant’s sentences, and adding the report to the appellate

record is not warranted in this situation. More importantly, appellant’s counsel did not, at any time,

object to the contents of the PSI report or attempt to correct any purported errors in it. Prior to

sentencing, appellant did not allege a factual inaccuracy in the investigation or report as allowed for

by the statute. See Tex. Code Crim. Proc. art. 42.12 , § 9(e). At the punishment hearing, prior to

assessing appellant’s sentence, the trial court asked if both sides had an opportunity to review the

PSI report. Appellant’s counsel responded that both he and appellant had viewed the report. The

trial court then asked, “Any comments or issues that we need to discuss about that?” to which

appellant’s counsel responded, “Not from the defense, Your Honor.” When the trial court referenced

the admission that appellant made in the PSI, appellant did not object. Appellant’s failure to object

(despite multiple opportunities to do so) means that the contents of PSI report are not relevant to this

appeal. Furthermore, the PSI report was only one of several considerations contributing to the trial

court’s sentencing decision. The trial court explicitly discussed “[o]ther things that . . . brought [the

judge] to [his sentencing] decision in this case,” including portions of appellant’s recorded interview

with the detective and the fact that appellant, the stepfather of the child victim (who had previously

been sexually assaulted), violated the child’s trust and betrayed their father-daughter relationship by

taking advantage of her vulnerability as both a child and a sexual assault victim.




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                Simply because the Rules of Evidence do not apply to the contents of a PSI, see Fryer

v. State, 68 S.W.3d 628, 631 (Tex. Crim. App. 2002), does not mean the Rules of Evidence (or Rules

of Appellate Procedure) do not otherwise apply at a punishment hearing when a PSI is used. It was

incumbent upon appellant to ensure the inclusion of the PSI report in the record at the punishment

hearing if he wanted this Court to review its contents on appeal.2 See Guajardo v. State, 109 S.W.3d

456, 469 n.17 (Tex. Crim. App. 2003) (“It is, however, the appealing party’s burden to ensure that

the record on appeal is sufficient to resolve the issue he presents.”); see also Bunselmeyer v. State,

No. 11-11-00195-CR, 2013 WL 2642141, at *1 (Tex. App.—Eastland June 6, 2013, no pet.) (“The




        2
           We disagree with the dissent’s suggestion that the PSI report should be included in the
record simply because the trial court considered it in assessing appellant’s punishment. A PSI is a
statutorily created collection of information that the trial court is not only authorized but mandated
to have done. Under the Texas Code of Criminal Procedure, when a judge is assessing punishment
for an offense, a PSI is required to be submitted for consideration by the judge in nearly all
non-capital felony cases where community supervision is a punishment option. See Tex. Code Crim.
Proc. art. 42.12, § 9(a); Stringer v. State, 309 S.W.3d 42, 45 (Tex. Crim. App. 2010). However, the
PSI report need not be formally introduced into evidence in order to be considered by the court. See
Brewer v. State, No. 1270-03, 2004 WL 3093224, at *4 (Tex. Crim. App. May 19, 2004). In fact,
the PSI report itself is “confidential” and may be released only as specified under the statute. See
Tex. Code Crim. Proc. art. 42.12, § 9(j). The trial judge cannot even inspect it (and the contents may
not be disclosed to any person) unless the defendant pleads guilty (or is convicted) or the defendant
authorizes, in writing, the trial judge to look at it. Id. art. 42.12, § 9(c). Further, the statute allows
only very limited access to the report—the defendant or defense counsel can read it and the State
merely has “access” to any information made available to the defendant. Id. art. 42.12, § 9(d),(f).
Because the PSI report is deemed “confidential” by law, it is not required to be made part of the
appellate record and thus is not normally included in that record. Brewer, 2004 WL 3093224, at *4;
see Taylor v. State, No. 11-10-00114-CR, 2011 WL 6811126, at *1 (Tex. App.—Eastland Dec. 22,
2011, no pet.) (mem. op., not designated for publication) (“Inclusion of the presentence investigation
report in the record is not automatic.”); see also Bell v. State, 155 S.W.3d 635, 639 n.3 (Tex.
App.—Texarkana 2005, no pet.) (“Based on [the statute’s] restriction of access to the information
contained in the PSI, we feel the better practice is to not admit the PSI into evidence. Such practice,
in and of itself, should not restrict the parties’ access to that information or the judge’s consideration
of that information in assessing punishment.”).

                                                    5
inclusion of the PSI in the record is not automatic, and defense counsel should include the PSI in the

record if the material in the PSI is in dispute.”). The statutory scheme governing a PSI does not

relieve appellant of this burden. Having failed to ensure the inclusion of the PSI report in the record

at trial, appellant cannot now utilize Rule 34.6(d) to expand the record for appeal. Accordingly, we

deny appellant’s request to direct the court reporter to supplement the record with the PSI report and

file it with this Court.



Before Justices Puryear, Goodwin, and Field;
        Dissenting Opinion by Justice Field

Filed: July 22, 2014

Do Not Publish




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