Opinion filed July 19, 2012




                                             In The


   Eleventh Court of Appeals
                                           __________

                                      No. 11-10-00381-CR
                                          __________

                              JESSE TREVISO DIAZ, Appellant

                                                V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 104th District Court

                                       Taylor County, Texas

                                   Trial Court Cause No. 17386B


                              MEMORANDUM OPINION
       Jesse Treviso Diaz appeals from his conviction for the offense of aggravated sexual
assault of a child, following his open plea of guilty before the court. The trial court assessed his
punishment at life imprisonment in the Texas Department of Criminal Justice, Institutional
Division. The trial court limited his right of appeal to punishment only. In two issues, Diaz
contends that the fact that the presentence investigation report was not included in the record
violates his due process rights under Article I, section 13 of the Texas Constitution and
Article 1.04 of the Texas Code of Criminal Procedure1 and also under the Due Process Clause
contained in the Fifth Amendment to the United States Constitution. We affirm.
       Following Diaz’s open plea to the offense of aggravated sexual assault of a child, the trial
court assessed his punishment at life imprisonment in the Texas Department of Criminal Justice.
After Diaz entered his plea, the trial court ordered a presentence investigation. The presentence
investigation report was subsequently completed. Counsel for Diaz acknowledged that he had
received a copy and had gone over it with his client. After hearing witnesses at the disposition
hearing, the trial court assessed Diaz’s punishment at life imprisonment in the Texas Department
of Criminal Justice, Institutional Division. The presentence investigation report was neither
offered nor admitted into evidence at trial, and it is not included in the record on appeal.
       Inclusion of the presentence investigation report in the record is not automatic. See
Taylor v. State, No. 11-10-00114-CR, 2011 WL 6811126 (Tex. App.—Eastland Dec. 22, 2011,
no pet.) (mem. op., not designated for publication); 43A GEORGE E. DIX & JOHN M.
SCHMOLESKY, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 46:123 (2011) (defense
counsel should include the PSI in the record if the material in the PSI is in dispute).
Furthermore, to be included in the record on appeal, it must be specified in a written designation
filed with the district clerk. TEX. R. APP. P. 34.5(b)(1), (c)(1). Counsel for Diaz could have
taken steps necessary to have the presentence investigation report included as part of the record.
Nothing in the record shows that the presentence investigation report was excluded from the
record despite a proper request that it be included, nor does Diaz make such a suggestion. We
hold that, if Diaz had a due process right to have the presentence investigation report included in
the record, he waived that right by not requesting that it be included. We overrule Issues One
and Two.
       The judgment of the trial court is affirmed.


July 19, 2012                                                                   PER CURIAM
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill.2

       1
           TEX. CODE CRIM. PROC. ANN. art. 1.04 (West 2005).
       2
           John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

                                                                2
