AFFIRMED and Opinion Filed November 5, 2018




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00214-CR

                       DONALD CLARK CUNNINGHAM, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 265th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1775859-R

                             MEMORANDUM OPINION
                        Before Justices Stoddart, Whitehill, and Boatright
                                  Opinion by Justice Whitehill
       Appellant pled guilty to aggravated sexual assault of a child under six years of age. The

trial court combined the related sentencing hearing with a hearing on the State’s motion to

adjudicate guilt on a prior aggravated assault charge. When the hearing concluded, the trial court

granted the motion to adjudicate, found appellant guilty of the prior aggravated assault, and

assessed punishment at twenty years imprisonment. The trial court also assessed punishment at

life imprisonment for the aggravated sexual assault of a child offense.

       In four issues, appellant argues the trial court erred by: (i) using unreliable extraneous

conduct to impose the maximum sentence in the sexual assault case; (ii) refusing to consider less

than the maximum sentence in the aggravated assault case; (iii) refusing to consider less than the

maximum sentence in the sexual assault case; and (iv) imposing a constitutionally disproportionate
sentence in the sexual assault case. We affirm the trial court’s judgment because (i) the code of

criminal procedure does not prohibit consideration of extraneous misconduct in a pre-sentence

report and appellant did not raise any material inaccuracies in the report, (ii) appellant’s complaint

about his aggravated assault sentence was previously dismissed for want of jurisdiction and is not

cognizable in this appeal, (iii) there is no indication that the court failed to consider the full range

of punishment in the aggravated sexual assault case, and (iv) appellant did not preserve his

complaint that his sentence is constitutionally disproportionate.

                                          I. BACKGROUND

       In March 2017, appellant pled guilty to aggravated assault causing serious bodily injury.

Consistent with the plea agreement, the court deferred finding guilt and placed appellant on

community supervision.

       Approximately three months later, appellant was charged with sexually assaulting KR, who

was five years old at the time. Appellant judicially confessed and pled guilty without a negotiated

sentencing agreement.

       The State moved to revoke appellant’s community supervision in the prior aggravated

assault case, and appellant pled true to the allegations. Both the sexual assault case and the sexual

assault of a child case were initially passed to allow the judge to obtain a pre-sentence report.

       The sexual assault sentencing and the aggravated assault revocation motion were both

considered on February 23, 2018. The court granted the revocation motion, found appellant guilty

of aggravated assault causing bodily injury, and sentenced appellant to twenty years imprisonment.

Appellant was sentenced to life imprisonment in the aggravated sexual assault of a child case.

Appellant timely appealed the aggravated sexual assault of a child judgment.




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                                                               II. ANALYSIS

A.         First Issue: Did the trial court err by using unreliable extraneous conduct evidence
           to impose the maximum sentence in the aggravated sexual assault of a child case?

           Appellant’s first issue argues that the trial court relied on materially unreliable information

in sentencing him to life imprisonment. Specifically, he contends that he “implicitly disputed”

some of the factual allegations in the pre-sentence report (PSI) and in the indictment and arrest

warrant in the aggravated assault case.1 He further argues that the complainant in the aggravated

assault case did not testify. Thus, according to appellant, “the record is clear that the trial court

based its sentence on the contested allegation that [he] committed ‘rape of a woman’ and . . .

‘within three months . . . digitally penetrated a child’s anus and vagina at the same time.’” We

reject appellant’s argument because the code of criminal procedure does not prohibit consideration

of extraneous conduct in a PSI, appellant did not raise any inaccuracies in the report, and the same

factual allegations are included in the arrest warrant affidavits supporting the indictments to which

appellant judicially confessed.

           An allegation that information in a PSI report is factually inaccurate does not render the

report inadmissible. Harris v. State, 416 S.W.3d 50, 52 (Tex. App.—Houston [1st Dist.] 2013, no

pet.). “A defendant bears the burden of pointing out any material inaccuracy in the PSI report to

the trial court at the time of the sentencing hearing.” Id.; see also TEX. CODE CRIM. PROC. art.

42.12, § 9(e).

           Moreover, the code of criminal procedure “does not prohibit” a judge from “considering

extraneous misconduct evidence [in a PSI] in assessing punishment just because the extraneous

misconduct has not been shown to have been committed beyond a reasonable doubt.” Smith v.

State, 227 S.W.3d 753, 763 (Tex. Crim. App. 2007); TEX. CODE CRIM. PROC. art. 37.07(a)(1).



     1
       Appellant was originally indicted for sexual assault, but the State dismissed the indictment in exchange for his guilty plea to an information
charging him with aggravated assault causing serious bodily injury.

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Rather, the PSI need only provide the trial court “with some basis from which it can rationally

infer that the defendant was responsible before using it to inform its normative judgment of what

punishment to assess within the statutorily prescribed range.” Smith, 227 S.W.3d at 759.

            Appellant insists that he “clearly contested the circumstances surrounding the aggravated

assault” because he said that he did not forcibly put his fingers inside that complainant’s sexual

organ or remove her pants. He further argues that he only admitted digital penetration in the

aggravated sexual assault and since he did not use his sexual organ, there was nothing “white” in

the child’s underwear as she described. He argues that the statements to the contrary that were

included in the PSI were therefore unreliable.

            But appellant specifically requested the PSI and did not object to its contents. Instead, he

judicially confessed to each offense as having been committed “exactly as alleged in the

indictment.” stipulated to the evidence, and pled guilty to those offenses.               Under these

circumstances, appellant’s first issue has not been preserved for our review. See TEX. R. APP. P.

33.1.

B.          Second Issue: Did the trial court err by refusing to consider less than the maximum
            sentence for aggravated assault?

            Appellant’s second issue complains about the sentence imposed in the aggravated assault

case.2 But appellant did not timely file a notice of appeal from the trial court’s order adjudicating

guilt in that case. See TEX. R. APP. P. 26.2(a)(1) (notice of appeal due within thirty days sentence

imposed).         Consequently, this court dismissed the appeal for want of jurisdiction.         Thus,

appellant’s second issue is not cognizable in this appeal. See Slaton v. State, 981 S.W.2d 208, 210

(Tex. Crim. App. 1998) (per curiam) (court of appeals lacks jurisdiction over an untimely appeal).




     2
         Cause Number 05-18-00678-CR

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C.     Third Issue: Did the trial court refuse to consider less than the maximum sentence
       for sexual assault of a child?

       Appellant’s third issue argues that the trial court violated his right to due process by failing

to consider the full range of punishment because the judge allegedly stated, at the beginning of the

hearing, that appellant would die in prison if the court sentenced him to life. We reject this issue

because there is nothing to indicate that the trial court failed to consider the full range of

punishment.

       A trial court denies a defendant due process when it arbitrarily refuses to consider the entire

range of punishment. Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014). Absent a

clear showing of bias, reviewing courts will presume that the trial court’s actions were correct.

Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).

       Aggravated sexual assault of a child is a first degree felony, punishable by life

imprisonment or any term of not more than ninety-nine years or less than five years. TEX. PENAL

CODE §§ 12.32; 22.021(e). But when the victim of the offense is younger than six at the time of

the offense, the minimum term of imprisonment is increased to twenty five years. Id. § 22.021(f)

(1).

       Here, there is no indication that the court failed to consider the full range of punishment.

Rather, the court told appellant that aggravated sexual assault of a child under six was a felony

with a “minimum imprisonment term of twenty-five years up to 99 years or life.” The judge also

said, “ I know nothing about you or the case so I do not know what I’m going to do,” and “Once I

hear the evidence, I may sentence you to less or I may sentence you to more . . . I do not know

what I’m going to do; do you understand that?

       The court took judicial notice of the court files, the probation files, and the PSI report, and

heard appellant’s testimony. Then, the court sentenced appellant to life imprisonment.



                                                 –5–
       The sentence is within the punishment range, and nothing in the record shows that the

sentence was predetermined, or that the judge was not neutral, detached, and unbiased.

       We therefore cannot conclude that the trial court abused its discretion or violated

appellant’s right to due process in assessing punishment. We thus resolve appellant’s third issue

against him.

D.     Fourth Issue: Was the aggravated sexual assault of a child sentence constitutionally
       disproportionate?

       Appellant’s fourth issue argues that the trial court erred by imposing a grossly

disproportionate sentence in the aggravated sexual assault of a child case, violating the Eight

Amendment’s prohibition against cruel and unusual punishment. Appellant, however, did not

object to his sentence when it was imposed and did not file a motion for new trial. See TEX. R.

APP. P. 33.1; see also Rhoades v. State, 934 S.W.2d 112, 120 (Tex. Crim. App. 1996). Therefore,

the issue was not preserved for our review. We thus resolve appellant’s fourth issue against him.

See Cox v. State, No. 05-17-00522-CR, 05-17-00523-CR, 2018 WL 1149568, at *1 (Tex. App.—

Dallas Mar. 5, 2018, no pet.).



                                       III. CONCLUSION

       Having resolved all of appellant’s issues against him, we affirm the trial court’s judgment.




                                                  /Bill Whitehill/
                                                  BILL WHITEHILL
                                                  JUSTICE

Do Not Publish
TEX. R. APP. P. 47
180214F.U05




                                               –6–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

 DONALD CLARK CUNNINGHAM,                         On Appeal from the 265th Judicial District
 Appellant                                        Court, Dallas County, Texas
                                                  Trial Court Cause No. F-1775859-R.
 No. 05-18-00214-CR       V.                      Opinion delivered by Justice Whitehill.
                                                  Justices Stoddart and Boatright
 THE STATE OF TEXAS, Appellee                     participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered November 5, 2018.




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