In the Interest of Z.A.T., K.M.T. & K.O.T., Children--Appeal from 170th District Court of McLennan County

SUPREME COURT CASES

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State: Texas

Court: Texas Northern District Court

Docket No: 10-04-00347-CV

Case Date: 04/05/2006

Plaintiff: Corey Odell Pearson

Defendant: The State of Texas--Appeal from 282nd District Court of Dallas County

Preview:Corey Odell Pearson v. The State of Texas--Appeal
from 282nd District Court of Dallas County
11th Court of Appeals
Eastland, Texas
Opinion
Corey Odell Pearson
Appellant
Vs. No. 11-03-00108-CR B Appeal from Dallas County
State of Texas
Appellee
Corey Odell Pearson pleaded no contest to the offense of aggravated sexual assault. The trial court convicted appellant
and assessed his punishment at five years confinement. We affirm.
On December 20, 2002, appellant entered his plea of no contest. Appellant indicated that he understood the charge
against him and that he understood the punishment range for the charge. The State then presented its evidence.
The victim, who was twelve years old at the time of the offense, testified that she and appellant=s stepdaughter, Ashlie,
were friends. The victim said that one weekend she spent the night with Ashlie. The following day, appellant took
them to go swimming. The victim testified that, while in the car, appellant Arubbed [her] leg and stuff. The victim
stated that, later that day, she was preparing to take a shower when appellant came into the bathroom. The victim said
that appellant started Arubbing her Achest and stuff. The victim took off her pants, and appellant started Alicking [her]
vagina. Appellant then left the bathroom.
The victim testified that she agreed to spend another night with Ashlie because appellant promised to buy her a ACD.
That night, the victim could not sleep so she got up to get a drink. When she returned to Ashlie=s room, appellant
came to the room and told the victim to come with him. The victim went with appellant to an unoccupied bedroom
across the hall. The victim said that appellant was Arubbing on her chest. The victim testified that she took off her
shorts and panties and that appellant Arubbed his penis on her vagina.
Andrea Michelle Taylor, appellant=s wife, testified at trial that the victim never seemed uncomfortable while staying at
their house. Taylor said that the victim asked to stay another night at their house. Taylor testified that appellant did not
get out of bed during the night that the victim stayed with them. Taylor stated that she would have woken up if
appellant had gotten out of bed. Ashlie testified at trial that she was a Alight sleeper and that she did not hear the
victim get up when she spent the night.
After hearing the evidence, the trial court stated:
So I do find that the evidence proves your guilt. I=m not finding you guilty at this time. I=m not sure what I=m going
to do. I want to have a pre-sentence report prepared to learn more about you.
So I=m going to release you today and continue you on bond. I want you to report to the Probation Department where
you will be interviewed. I will review that interview, together with any punishment witnesses you have, any
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punishment witnesses the State has. Then I=ll make a decision.
On January 17, 2003, the trial court held a hearing on punishment. The trial court indicated that it had read the
presentence investigation report and found that the evidence established appellant=s guilt. The trial court then
cautioned appellant about continuing to deny committing the offense. The trial court stated that:
If you=re not guilty, I want you to maintain your innocence. But if you have done this, I want you to think about it
seriously, because your lawyer is going to be asking me for probation, and I don=t see that you=re a very good
candidate for probation if you=re going to deny your offense because you=ll be sent to counseling. You=ll say you
didn=t do it.
You=ll get kicked out of counseling. You=ll be right back here before me and I=ll have no choice but to sentence you
to prison if you=re not undergoing counseling.
So I want you to talk to your lawyer for just a couple of moments before we begin this hearing. So we=ll take a short
recess. You talk with your lawyer. Then we=ll proceed.
The State and appellant then presented evidence on punishment. At the close of evidence, the trial court stated: AI have
not changed my mind....I still believe the evidence proves your guilt, so I do find you guilty as charged.
In his first issue on appeal, appellant argues that the trial court erred in inspecting the presentence investigation report
prior to a determination of guilt. TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 9(c)(1) (Vernon Supp. 2004) provides:
The judge may not inspect a report and the contents of the report may not be disclosed to any person unless:
(1) the defendant pleads guilty or nolo contendere or is convicted of the offense.
The record shows that, after being admonished, appellant entered a plea of no contest. The trial court heard evidence
and then found that the evidence proved that appellant committed the offense. See Baldridge v. State, 77 S.W.3d 890
(Tex.App. - Houston [14th Dist.] 2002, pet=n ref=d); Blalock v. State, 728 S.W.2d 135 (Tex.App. - Houston [14th
Dist.] 1987, pet=n ref=d). The record does not indicate that appellant withdrew his plea of no contest. Appellant has
not shown that the trial court erred in reviewing the presentence investigation report before formally pronouncing his
guilt. Appellant=s first issue on appeal is overruled.
In his second issue on appeal, appellant complains that the trial court did not consider the entire range of punishment
and imposed a predetermined punishment. Appellant contends that the trial court=s comments at the beginning of the
punishment hearing concerning whether appellant would admit his guilt and be successful in counseling show that the
trial court did not consider community supervision as punishment.
A court denies due process and due course of law if it arbitrarily refuses to consider the entire range of punishment for
an offense or refuses to consider the evidence and imposes a predetermined punishment. Jaenickev. State, 109 S.W.3d
793, 796 (Tex.App. - Houston [1st Dist.] 2003, pet=n ref=d). In the absence of a clear showing to the contrary, a
reviewing court will presume that the trial court was neutral and detached. Jaenickev. State, supra at 796; Steadman v.
State, 31 S.W.3d 738, 741 42 (Tex.App. Houston [1st Dist.] 2000, pet=n ref'd).
The trial court cautioned appellant that he would not be a good candidate for community supervision if he continued to
deny committing the offense. The trial court explained that, while on community supervision, appellant would be sent
to counseling and that, if he denied committing the offense in counseling, he would be removed from counseling. The
trial court further explained that, if appellant was not receiving counseling, he could have his community supervision
revoked. The record shows that, after making these comments, the trial court heard evidence on punishment. The trial
court then assessed the minimum prison term for the offense.[1] The trial court cautioned appellant on the requirements
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of community supervision. Appellant has not shown that the trial court refused to consider the entire range of
punishment or that it imposed a predetermined punishment. Moreover, appellant did not object to the trial court=s
comments or to the trial court=s pronouncement of the sentence. Therefore, appellant has waived his complaint for
appellate review. See Hull v. State, 67 S.W.3d 215, 217 18 (Tex.Cr.App.2002); Teixeirav. State, 89 S.W.3d 190
(Tex.App. Texarkana 2002, pet=n ref=d). Appellant=s second issue on appeal is overruled.
The judgment of the trial court is affirmed.
W. G. ARNOT, III
CHIEF JUSTICE
February 19, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]TEX. PENAL CODE ANN. '22.021(d) (Vernon Supp. 2004); TEX. PENAL CODE ANN. ' 12.32(a) (Vernon 2003).
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