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


                             MEMORANDUM OPINION
       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.—Eastland 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.


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