Affirmed and Opinion filed November 18, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00915-CR

                     TOMMIE LEE JACKSON, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                    On Appeal from the 174th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1366858

                                OPINION

      We must decide whether a presentence investigation (PSI) report, admitted
into evidence as an exhibit during the sentencing hearing, provides sufficient
evidence of appellant’s prior convictions for purposes of proving enhancement
allegations.   Because we hold that appellant’s PSI report provided sufficient
evidence to link him to two prior convictions alleged in the indictment for
enhancement, we affirm the trial court’s judgment.
                                       BACKGROUND

       Appellant Tommie Lee Jackson pleaded guilty to first-degree felony theft
without an agreed recommendation as to punishment. The indictment contained
two enhancement paragraphs, which elevated the punishment range to twenty-five
to ninety-nine years or life. See Tex. Penal Code Ann. § 12.42(d). Because the
trial court was to assess punishment, the Harris County Community Supervision
and Corrections Department prepared a PSI report, which stated that appellant had
been convicted of the two offenses contained in the indictment’s enhancement
paragraphs.     The State introduced the report into evidence at the sentencing
hearing, and appellant’s counsel had “[n]o objections to State’s Exhibit 1.”1 The
trial court admitted the PSI report, and it is part of the record on appeal.

       After appellant and the State finished closing argument, the trial court found
appellant guilty and assessed punishment at twelve years’ confinement. But the
State informed the trial court, “When he pled guilty, he pled true to both
enhancement paragraphs.” Appellant’s trial counsel agreed, “He pled true to both.
That’s why I said 25 minimum and 25 max.” Ultimately, the trial court sentenced
appellant to twenty-five years’ confinement and certified his right to appeal.

                                        ARGUMENTS

       On appeal, appellant contends that the State failed to prove the enhancement
allegations beyond a reasonable doubt, and the evidence is therefore insufficient.
In particular, he argues that “(1) the record is unclear about whether [appellant]
pled ‘true’ to the enhancement paragraph(s); and (2) the State failed to produce
sufficient evidence to link [appellant] to the enhancement paragraph(s).”

       1
         Appellant did not contest the factual accuracy of the report. See Tex. Code Crim. Proc.
Ann. art. 42.12, § 9(e) (defendant may comment on report and request approval to introduce
testimony or other information alleging a factual inaccuracy).

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       Appellant suggests, and the State does not dispute, that appellant’s personal
verbal or written plea of “true” to the enhancement allegations is not contained in
the record.     The State contends appellant is “estopped from arguing that the
available record fails to prove that he did not enter pleas of true to the enhancement
paragraph because appellant failed to provide the record of his plea by waiving his
right to a court reporter.” The State contends further that the PSI report supports a
finding of “true” to the enhancement paragraphs.

                                            ANALYSIS

       We need not decide whether this record indicates that appellant pleaded
“true” to the enhancement paragraphs 2 because we conclude the PSI report
provides sufficient evidence to support the trial court’s implied finding that both
enhancement paragraphs were true.

       “To establish that a defendant has been convicted of a prior offense, the
State must prove beyond a reasonable doubt that (1) a prior conviction exists, and
(2) the defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919,
921 (Tex. Crim. App. 2007). No specific document or mode of proof is required.
Id. Regarding enhancement allegations in particular, “Chapter 12 of the Penal
Code deals with enhanced penalties for repeat or habitual offenders, but it does not
require that the fact of a prior conviction be established in any particular manner or
with any specific document.” Id. at 922.

       A trial court may consider a defendant’s criminal history identified in a PSI
report when assessing punishment. See Bell v. State, 155 S.W.3d 635, 638–39
(Tex. App.—Texarkana 2005, no pet.) (citing Nicolopulos v. State, 838 S.W.2d
       2
        See Cameron v. State, No. PD-1427-13, — S.W.3d —, 2014 WL 4996290, at *4 (Tex.
Crim. App. Oct. 8, 2014) (“It is well established that ‘this Court accepts as true factual assertions
made by counsel which are not disputed by opposing counsel.’” (quoting Thieleman v. State, 187
S.W.3d 455, 457 (Tex. Crim. App. 2005)).

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327, 328 (Tex. App.—Texarkana 1992, no pet.)); Williams v. State, 958 S.W.2d
844, 845 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d); Garcia v. State, 930
S.W.2d 621, 624 (Tex. App.—Tyler 1996, no pet.). Prohibiting the trial court from
considering information in the PSI, even if it is hearsay, would “‘deny the obvious
purpose of the statute.’” Fryer v. State, 68 S.W.3d 628, 631 (Tex. Crim. App.
2002) (quoting Brown v. State, 478 S.W.2d 550, 551 (Tex. Crim. App. 1972)).
The Austin Court of Appeals held that a PSI report provided sufficient evidence
that a defendant was previously convicted of a crime for purposes of cumulation,
noting that the “Court of Criminal Appeals has recognized a variety of ways to
prove a previous conviction for the purpose of enhancing punishment for a repeat
or habitual offender.” Montgomery v. State, 876 S.W.2d 414, 416 (Tex. App.—
Austin 1994, pet. ref’d). Importantly, a defendant has an opportunity to review a
PSI report and dispute its accuracy. See, e.g., id.; see also Tex. Code Crim. Proc.
Ann. art. 42.12, § 9(e).

      In an unpublished opinion, the Court of Criminal Appeals concluded that a
trial court could take judicial notice of facts asserted in a PSI report for the purpose
of finding enhancement allegations true based on prior convictions. See Brewer v.
State, No. 1270-03, 2004 WL 3093224, at *2–3 (Tex. Crim. App. May 19, 2004).
This opinion is not precedent, and we do not cite it as authority, see Tex. R. App.
P. 77.3, but the court’s reasoning is illustrative and persuasive. In particular, the
court reasoned:

      The purpose of compiling a PSI is to fully inform the trial court of the
      circumstances of the offense, the defendant’s background, education,
      prior offenses, and prospects for rehabilitation, and the harm, if any,
      caused to the victim of a crime. There would be little purpose in
      compiling this report if the trial judge cannot rely upon the
      information contained within it. Because the Texas Legislature gave
      the defendant an explicit statutory right and opportunity to object to
      the factual accuracy of its contents and to correct any mistakes or
                                           4
      misstatements, it surely intended that the trial judge would rely upon
      unobjected-to facts contained within that PSI when assessing an
      appropriate punishment.
Brewer, 2004 WL 3093224, at *3 (citing, inter alia, Fryer, 68 S.W.3d at 631;
Montgomery, 876 S.W.2d at 416; Nicolopulos, 838 S.W.2d at 328).

      Because a PSI report is intended to acquaint the sentencing trial judge with
the defendant’s criminal history, and the defendant has a full opportunity to object
to the accuracy of the PSI report, a trial court may consider unobjected-to criminal
convictions listed in the PSI report when assessing an appropriate sentence. See
Bell, 155 S.W.3d at 638–39; Williams, 958 S.W.2d at 845; Garcia, 930 S.W.2d at
624; Montgomery, 876 S.W.2d at 416.

      Here, unlike in many cases,3 the State introduced the PSI report into
evidence, and it is part of the record on appeal. Consistent with the indictment, the
PSI report states:

      Before the commission of the alleged offense, on November 26, 1991,
      in Cause Number 0610850, in the 174th District Court of Harris
      County, Texas, the defendant was convicted of the felony offense of
      Unauthorized Use of a Motor Vehicle.
      Before the commission of the primary offense and after the conviction
      in Cause Number 0610850 was final, the defendant committed the
      felony of Unauthorized Use of a Motor Vehicle and was finally
      convicted of that offense on March 18, 1993, in Cause Number
      0643050, in the 351st District Court of Harris County, Texas.

The PSI report establishes that the two prior convictions exist and that appellant
was linked to those convictions. Accordingly, the PSI report is evidence from
which the trial court could find beyond a reasonable doubt that the enhancement
allegations were true.
      3
          See Brewer, 2004 WL 3093224, at *4 (PSI report is “not normally included” in the
appellate record).

                                            5
      Appellant’s sole issue on appeal is overruled. We affirm the trial court’s
judgment.


                                     /s/       Sharon McCally
                                               Justice

Panel consists of Justices McCally, Brown, and Wise.
Publish — Tex. R. App. P. 47.2(b).




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