Affirmed and Opinion filed August 28, 2012.




                                       In The


                     Fourteenth Court of Appeals

                                NO. 14-11-01098-CR




                      NOAH WILSON COLLINS, Appellant


                                         V.


                        THE STATE OF TEXAS, Appellee


                      On Appeal from the 228th District Court
                               Harris County, Texas
                          Trial Court Cause No. 1298556



                                    OPINION

      Appellant Noah Wilson Collins was charged by indictment with the offense of
murder. He pleaded guilty to the offense and pleaded true to an enhancement paragraph,
without an agreed sentencing recommendation from the State. The trial court found
appellant guilty and sentenced him to life in prison.

          In his sole issue, appellant claims his Fifth Amendment right against self-
incrimination was violated when he was questioned by the investigator compiling a
Presentence Investigation Report (PSI) after he had initialed a paragraph in the plea
paperwork invoking his right against self-incrimination and declining to participate in the
preparation of a PSI. Because appellant failed to preserve error in the trial court, we
affirm.

          As part of the entry of the guilty plea, appellant signed and initialed the preprinted
plea form, which is divided into two sections, “Admonishments” and “Statements and
Waivers of Defendant.” Appellant initialed each paragraph in the section entitled
“Statements and Waivers of Defendant,” including paragraph 6, which reads:

          I understand that before sentence may be imposed, the Court must order
          preparation of a Presentence Investigation Report by the probation officer
          pursuant to Article 42.12, Sec. 9, V.A.C.C.P. I have thoroughly discussed
          this matter with my attorney and believe that for the Court to compel me to
          participate in the preparation of such a report would abridge the protection
          provided me by the Constitution of the United States and the Constitution
          and laws of the State of Texas and could result in further prejudice to me.
          Therefore, I hereby in writing respectfully decline to participate in the
          preparation of a Presentence Investigation Report and request that said
          report not be made prior to the imposition of sentence herein. I further
          knowingly, voluntarily, and intelligently waive any right which I may have
          to the preparation of said report either under Article 42.12, Sec. 9,
          V.A.C.C.P. or under Article 42.09, Sec. 8, V.A.C.C.P.

(Emphasis added).

          Following the plea, an investigator compiled a PSI. Notwithstanding the signed
statement cited above, the investigator interviewed appellant as part of the PSI. There is
no evidence that appellant initiated the interview, nor is there evidence that appellant
objected to his participation. Appellant informed the investigator that during the periods
2000–2001 and 2002–2004 he supported himself by selling drugs, primarily cocaine and
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marijuana. Appellant supplied additional information to be added to the PSI, including
appellant’s written statement, character letters, and the results of a psychiatric
examination.

        At the opening of the sentencing hearing, the court asked appellant if he had any
objections to the PSI. His counsel stated there were no objections to the report. In closing
arguments, the State did not mention appellant’s admission that he had sold drugs for a
living, but reviewed appellant’s “violent” criminal history, which included appellant’s
prior conviction for possession of three pounds of marijuana and appellant’s prior no-
billed charge of murder during a drug deal. After reviewing the PSI and hearing a
statement from appellant and arguments of counsel, the court sentenced appellant to life
in prison.1

        Appellant argues his Fifth Amendment right to refrain from self-incrimination was
violated when he was questioned by the State investigator compiling the PSI against his
earlier expressed desire not to participate in the preparation of a PSI. Appellant contends
he was harmed by the inclusion in the PSI of evidence he gave during the presentence
investigatory interview that he had supported himself by dealing drugs because this
information resulted in a harsher sentence.

        Even after a guilty plea is entered, a criminal defendant retains a right against self-
incrimination as to sentencing. Carroll v. State, 42 S.W.3d 129, 132 (Tex. Crim. App.
2001). However, failure to make a timely objection at trial waives appellate complaint on
the error. Tex. R. App. P. 33.1(a)(1). This error-preservation rule applies to many
constitutional errors. Saldano v. State, 70 S.W.3d 873, 888–89 (Tex. Crim. App. 2002)
(explaining that only certain fundamental errors, such as the right to assistance of counsel
and the right to trial by jury, may be raised for the first time on appeal). Because

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          In pronouncing sentence, the Judge stated, …”you’re just too violent….she [the complainant,
appellant’s wife] was tortured. I mean, just absolutely tortured like something from a —from a really bad
movie…I just don’t see any other way to find any other kind of justice in this case other than to give
[appellant[] a life sentence.”
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appellant failed to object to the PSI at the sentencing hearing, he has waived any error.
See Ketchum v. State, 655 S.W.2d 325, 326–27 (Tex. App.—Houston [14th Dist.] 1983,
no writ) (holding defendant’s failure to object at the sentencing hearing to the PSI, which
appellant had requested, waived any claim that failure to admonish defendant of his rights
prior to his presentence investigatory interview violated his Fifth Amendment privilege
against self-incrimination); see also Morrison v. State, No. 01-99-00469-CR, 2000 WL
730677, at *3–4 (Tex. App.—Houston [1st Dist.] June 8, 2000, no pet.) (mem. op.) (not
designated for publication) (concluding that, on almost identical facts as those presented
here, a defendant who pleaded guilty, initialed the same paragraph on the plea form
declining to participate in the preparation of a PSI, but later cooperated and gave a
statement to the investigating officer that was included in the PSI, had waived any error
by defense counsel’s failure to object to the PSI at the sentencing hearing); see also Reyes
v. State, 361 S.W.3d 222, 230-231 (Tex. App.- Fort Worth 2012, pet. ref’d)(court held
that, in order to perfect appellate consideration of alleged constitutional violations where
probation officer interviewed defendant for PSI in his jail cell without counsel present or
Miranda warnings given, defendant was required to object to the presentation of such
evidence before its admission).

       Appellant, however, urges this Court to reexamine how the Fifth Amendment
privilege against self-incrimination applies to presentence investigatory interviews in
light of the Supreme Court’s decision in McKune v. Lile, 536 U.S. 24 (2002) (plurality
op.). In McKune, the United States Supreme Court held that certain personal privileges
constitutionally may be denied to convicted imprisoned sex offenders who refuse to
participate in treatment programs that require participants to admit their guilt for
unadjudicated offenses without a promise of immunity. The Court left open the
possibility that more serious consequences could constitute unacceptable coercion and
violate the Fifth Amendment’s guarantee against forced self-incrimination. Id. at 48–52
(O’Connor, J., concurring).


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       No evidence has been presented that appellant was threatened, either explicitly or
implicitly, with more severe punishment had he failed to participate in the PSI. There is
no showing that the serious consequences alluded to in McKune were at stake. See also
Johnson v State, 357 S.W. 3d 653 (Tex. Crim. App. 2012)(trial court's statement at
sentencing that "in all candor, I would kind of like to know what he's been doing for the
last 18 years" was not coercive and did not violate defendant’s right to remain silent
where defendant lodged no objection to testifying). Accordingly, we overrule appellant’s
sole issue on appeal.

       The judgment of the trial court is affirmed.




                                   /s/    Martha Hill Jamison
                                          Justice


Panel consists of Justices Boyce, Christopher and Jamison.
Publish—Tex. R. App. P. 47.2(b).




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