




Opinion filed May 21, 2009











 








 




Opinion filed May 21, 2009
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh
Court of Appeals
                                                                 ____________
 
                                                          No. 11-08-00257-CR
                                                    __________
 
                               DAGOBERTO RODRIGUEZ, Appellant
                                                             V.
                                         STATE
OF TEXAS, Appellee
 

 
                                         On
Appeal from the 350th District Court
                                                          Taylor
County, Texas
                                                   Trial
Court Cause No. 8714D
 

 
                                             M
E M O R A N D U M   O P I N I O N
The
trial court convicted Dagoberto Rodriguez, upon his plea of guilty, of felony
driving while intoxicated.  A plea bargain agreement was not reached.  The
trial court assessed his punishment at confinement for four years.  We affirm.
                                                                 Issues
on Appeal
Appellant
argues in his first issue that the trial court abused its discretion when it
assessed confinement instead of placing him on community supervision.  In his
second issue, appellant contends that the trial court erred in its reliance on
the presentence investigation report.
                                                             Punishment
Assessed




Appellant
stipulated that he had been convicted of DWI in 1992 in San Saba County and in
1991 in Llano County.  Tex. Penal Code
Ann. ' 49.09
(Vernon Supp. 2008) provides that the offense of DWI shall be a third degree
felony if a person has two prior qualifying DWI convictions.  Tex. Penal Code Ann. ' 12.34 (Vernon 2003)
provides that a person convicted of a third degree felony offense shall be
sentenced to confinement for a term of not more than ten years and not less
than two years.  An optional fine not to exceed $10,000 is also authorized. 
The
trial court assessed punishment within the range authorized.  A penalty
assessed within the range of punishment established by the legislature will not
be disturbed on appeal. Jackson v. State, 680 S.W.2d 809 (Tex. Crim.
App. 1984); Bradfield v. State, 42 S.W.3d
350, 354 (Tex. App.CEastland
2001, pet. ref=d).  The first
issue is overruled.
                                                    Presentence
Investigation Report
Appellant
argues that the trial court erred when it considered the presentence
investigation report but failed to take judicial notice of the report and that
the trial court failed to allow appellant an opportunity to object to the
report.  Appellant contends that the report contained extraneous offenses that
were not established beyond a reasonable doubt.
Appellant
raised no objections to the report at the punishment hearing.  In fact, the
record reflects that both appellant and his counsel had had sufficient time to
review the report.  Appellant testified that his counsel had reviewed the
report with him and that he understood that the trial court was going to
determine his punishment at the conclusion of the hearing.  Appellant also
testified about his prior DWIs and other trouble with the law.
Appellant has
not preserved his complaint for appellate review.  Tex. R. App. P. 33.1.  Moreover, we note that the law does
not require that extraneous offenses in a presentence investigation report be
established beyond a reasonable doubt.  Smith v. State, 227 S.W.3d 753,
762 (Tex. Crim. App. 2007).  The second issue is overruled.
                                                                        Holding
The judgment
of the trial court is affirmed.
 
 
May 21, 2009                                                                          RICK
STRANGE
Do not publish.  See Tex. R. App. P. 47.2(b).                         JUSTICE
Panel consists of:  Wright, C.J.,
McCall, J., and Strange, J.

