









Affirmed and Opinion filed April 29, 2004








Affirmed and Opinion filed April 29, 2004.
 
 
 
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-03-00176-CR
____________
 
DARRELL GRIFFITH, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 

 
On Appeal from the 339th
District Court
Harris County, Texas
Trial Court Cause No. 876,569
 

 
O P I N I O N




Appellant pleaded guilty to the felony
offense of possessing a weapon on a premise licensed to sell alcohol.  At the plea proceeding, appellant waived his
right to the preparation of a presentence investigation (PSI) report.  The trial court deferred adjudication and
placed appellant on three years= community
supervision.  The State later moved to
adjudicate appellant=s guilt. 
At the adjudication hearing, appellant requested the preparation of a
PSI report, which the court denied.  The
court found appellant guilty and sentenced him to four years= confinement in
the Texas Department of Justice, Institutional Division.  In one point of error, appellant contends the
trial court erred when it denied his request for a PSI report.  We affirm.
ANALYSIS
As appellant acknowledges, we have
previously held that the waiver of a PSI report at a plea proceeding also
applies to the punishment hearing.  See
McClendon v. State, 784 S.W.2d 711, 713 (Tex. App.CHouston [14th
Dist.] 1990, pet. ref=d); see also Daniel v. State,
877 S.W.2d 75, 77 (Tex. App.CHouston [1st
Dist.] 1994, pet. ref=d). 
However, he claims that we should reverse our holding in McClendon
in light of the more recent Court of Criminal Appeals= opinion, Whitelaw
v. State, 29 S.W.3d 129 (Tex. Crim. App. 2000).
In Whitelaw, the Court of Criminal
Appeals examined an apparent conflict between articles 37.07 and 42.12 of the
Texas Code of Criminal Procedure.  Id.
at 130B34.  Article 37.07 appears to give the trial court
discretion to order a PSI report, while article 42.12 makes a PSI report
mandatory, absent certain exceptions.  Id.
at 132.  The Court resolved the conflict
by holding that article 42.12 would control because it was both more recent and
more specific.[1]  Id. at 134.  Because article 42.12 controls, the Court
held that Aupon a defendant=s timely request,
in felony cases, a trial court must order preparation of a PSI [report].@  Id. 
However, the Court did not consider the situation present in McClendon
or Daniel, and its opinion did not mention, much less overrule, either
opinion.




As the Court noted, article 42.12 provides
that a PSI report is mandatory in felony cases when it is requested by a
defendant, id., and sometimes even when it is not requested, id.
at 132 n.13.  See also Tex. Code Crim. Proc. art. 42.12, ' 9(a), (g).  Although article 42.12 provides for express
waiver of a PSI report in misdemeanor cases, it makes no mention of express
waiver of a PSI report in felony cases.  Compare
Tex. Code Crim. Proc. art.
42.12(b), (g).  However, article 1.14
provides that Athe defendant in a criminal prosecution
for any offense may waive any rights secured him by law . . . .@  Tex.
Code Crim. Proc. art. 1.14(a).  We
therefore hold that a defendant is capable of expressly waiving his right to a
PSI report.  Cf. Buchanan v.
State, 68 S.W.3d 136, 140 (Tex. App.CTexarkana 2001, no
pet.) (holding that a defendant who did not object to the failure to order a
PSI report in a felony case waived any complaint by inaction).
Having determined that the right to a PSI
report may be expressly waived, we must determine whether a waiver at a plea
proceeding continues to be valid at an adjudication hearing.  Because Whitelaw did not address this
issue, we see no reason to retreat from our reasoning in McClendon that
the waiver continues to be valid.  See
McClendon, 784 S.W.2d at 713 (ABecause the
accused has never been found guilty of having committed the initial offense,
the adjudication of guilt is part and parcel of the original plea proceeding,
regardless of the amount of time intervening.@); see also
Daniel, 877 S.W.2d at 77 (ABecause a plea
proceeding and a later adjudication of guilt are essentially the same
proceeding, it is as if the intervening time between the two proceedings had
never passed.@).




Finally, we must determine whether
appellant effectively reasserted his right to a PSI report by requesting one
after it had been waived.  Some rights
may be reasserted after waiver, such as the right to a jury trial, the right to
remain silent during custodial interrogation, and the right to counsel at
trial.  Marquez v. State, 921
S.W.2d 217, 221B22 & n.4 (Tex. Crim. App. 1996).  However, not every right may be reasserted;
for example, the right to an appeal cannot be reasserted after it is waived.[2]  See Monreal v. State, 99 S.W.3d
615, 621 (Tex. Crim. App. 2003).  We
believe the right to a PSI report falls within the category of rights which
cannot be reasserted.  As the Court noted
in Monreal, the right to a jury trial, the right to remain silent, and
the right to counsel are all constitutional rights.  Id. at 621.  The right to a PSI report, like the right to
an appeal, is not a constitutional right.[3]  Because the right to a PSI report is more
similar to the right to an appeal than the aforementioned constitutional
rights, we hold that it cannot be reasserted after being waived.
We therefore determine that our opinion in
McClendon is still valid.  Because
McClendon is dispositive, we overrule appellant=s only point of
error.[4]

We affirm the judgment of the trial court.
 
 
 
 
/s/      Wanda McKee Fowler
Justice
 
 
 
Judgment
rendered and Opinion filed April 29, 2004.
Panel
consists of Justices Fowler, Edelman, and Seymore.
Publish
C Tex. R. App. P. 47.2(b).
 




[1]  We note that a
material amendment to article 42.12 was also more recent than our decision in McClendon.  See Daniel, 877 S.W.2d at 76B77.  However,
the Daniel court reached the same decision when considering the amended
article 42.12.  Id. at 77.


[2]  A distinction
exists between challenging the validity of a waiver of the right to an appeal
and reasserting the right to an appeal after a valid waiver; the former is
permissible while the latter is not. 
There is therefore no conflict between our decision here and our recent
decision in Tufele v. State, ___ S.W.3d ___, No. 14-02-01271-CR, 2004 WL
210482 (Tex. App.CHouston [14th Dist.] Feb. 5, 2004, no pet.). 


[3]  The Court of
Criminal Appeals has not stated that whether a right is constitutional in
nature determines whether it can be reasserted after being waived.  See Marquez, 921 S.W.2d at 222
n.4.  The Court stated that even some
constitutional rights cannot be reasserted after being waived.  Id. 
However, constitutionality is some indication as to whether a right may
be waived.  Monreal, 99 S.W.3d at
621.


[4]  We also do not
see a conflict between McClendon and this opinion and the statement in Whitelaw
that a trial court is required to order a PSI report even if the defendant does
not request one.  See Whitelaw,
29 S.W.3d at 132 n.13.  If the defendant
is simply silent, saying nothing about a PSI report, a court must follow the
mandate of article 42.12 and order a PSI report.  Under article 42.12, silence is not equal to
an affirmative waiver as we have here.


