### NUMBER 13 - 13 - 00083 - CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

BENITO ALVARADO , Appellant,

v. THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court of Nueces County, Texas

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## MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Chief Justice Valdez This appeal arises out of appellant Benito Alvarado’s open plea of guilty for felony driving while intoxicated, third offense. See T EX

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. §§ 49.04, 49.09( b )(2) ( West 2011). By one issue, which we address as two, appellant contends
that his right s to due process and against self

- incrimination were violated when , at his punishment trial, the State referred to statements made by appellant during his interview2 for his pre

- sentence i nvestigation r eport (PSI)

. S ee U.S. C ONST . amends. V, XIV. In the alternative, appellant argues that his trial counsel committed ineffective assistance by failing to object to these references . We affirm

. I. B ACKGROUND On June 26, 2008, appellant was indicted for felony driving while intoxicated , third offense. See T EX

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. §§ 49.04, 49.09( b )(2)

. A ppellant entered an open plea of guilty on January 7, 2013. Appellant then ple a d ed true to two prior felony convictions, burglary of a habitation on October 31, 1989 and driving while intoxicated

on August 9, 2 007. Th e trial court admitted into evidence, as State’s Exhibit O ne, a “Judicial Confession and Stipulation” in which appellant confessed to committing the offense of driving while intoxicated on May 6, 2012 and stipulated to previous convictions for driv ing while intoxicated on Marc h 15 , 1989 and April 3, 1997. After the State called three witnesses , the trial court found appellant guilty of the offense as charged and found the two prior offenses true

. The trial court informed the parties that

a pre - sen tence investigation report (PSI) had been prepared and asked if they would
like a short break to review it. Appellant’s attorney requested a break to examine the contents of the PSI. After the break, t he trial court conducted a bench trial on punishment. Appellant
called his wife, Diana Alvarado , as his sol e wit ness. During the State’s cross

examination of Alvarado , the following exchange occurred:
Prosecutor: And you know that [appellant] told the person at the probation department that he had been at work that day on Sunday? Alvarado: Oh, okay. Well I don’t understand

— I don’t know what he told them or anything like that.3 Prosecutor: Well the judge has a report where the probation officer asked him and he said he was at work that day and he also told the officers he had been drinking since 10:00 that day. Alvarado: The probation officer or the parole officer? Prosecutor: Probation officer. Alvarado: Oh, I don’t know because we’re the one

— Prosecutor: So you can’t tell us what he was doing before that? Alvarado: No , sir

. During closing arguments, the State, again, referenced the PSI: He got another felony DWI where a court, the 319 th Court put him on probation. He was on probation for a short time and then he got revoked. According to the PSI, he told the PSI officer that he completed SAPF. While he was on probation, he goes back and gets another DWI, becomes a repeat offender , goes to prison for that one. At the close of evidence, t he trial court sentenced appe llant to 32 year s in prison. This appeal followed.
II. A PPLICABLE L AW & D ISCUSSION As an initial matter, t he S tate contend s that appellant failed to preserve error because he did not object to the allegedly improper references to the PSI at trial. We
agree. To preserve a complaint for appellate review, the record must show that a specific and timely complaint was made to the trial judge and that the trial judge ru led on the complaint. T EX

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. P. 33.1( a ); Lovill v. State , 319 S.W.3d 68 7, 691 (Tex. Cri m. App. 2009). Appellant, in his appellate brief, concedes that his trial attorney di d not object to the State’s references to the PSI , but asks us, here, to find that he was not required to object at t rial because the error was structural error. See Arizona v.
Fulminante , 499 U.S. 279, 310 (1991) ( reasoning that harmless error analysis can not be4 applied to certain c onstitutional violations that are considered structural). However , the requirement that a defendant preserve error for appellate review applies to many

c onstitutional errors. Saldano v. State, 70 S.W.3d 873, 888

– 89 (Tex. Crim. App. 2002) (explaining that only certain fundamental errors, such as th e right to assistance of counsel and the right to trial by jury, may be raised for the first time on appeal). Moreover, in order to preserve error for Fifth A mendment violations associated with a PSI, courts have not found structural error and have required a specific objection to
pre serve error for appeal. Collins v. State , 3 78 S.W.3d 629, 631 (Tex. App.

— Houston [14 th Dist.] 2012, no pet.); Reyes v. State , 3 61 S.W.3d 222, 231 (Tex. App.

— Fort Worth 2012, pet. ref’d). Here, appellant did not object to the State’s references to the PSI and therefore has not preserved his argument for our review. See Lovill , 319 S.W.3d at 691. Furthermore, even if appellant had objected, the trial court did not err by allowing
the State’s references to the PSI

. Appe llant argues that he did not affirmatively waive his right ag ainst self

- incrimination at the sentencing hearing or prior to answe ring questions at the PSI inter view

. See T EX

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. art

. 1.14 (West 2005) (permitting a defendant to affirmatively waive any right). To support his argument tha t the State’s references to the PSI were improper, a ppellant relies on Mitchell v. United States , 526 U.S. 314 (1999) , which held that a defendant retains his right aga inst self

incrimination during sentencing

. Mitchell , 526 U.S. at 319. While we agree that a defendant’s Fifth Amendment rights persist during sentencing, Mitchell does not address a trial court’s consideration of a PSI

. Instead, t he code of criminal procedure allows the trial court to consider the contents of a PSI at sentencing

. T EX

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. art

. 37.07, § 3(d) (West5 Supp. 2013 ) ; id

. art. 42.12 , § 9(a) (West Supp. 2013) . When examining a PSI, the trial
court need not first warn the acc used of his Fifth Amendment rights. Stewart v. State , 675 S.W.2d 524, 526 (Tex. App.

— Houston [14th Dist.] 1983, pet. ref'd)

. Further, t here is no requirement that a defendant be warned of his right to refrain from self

incrimination prior to submitting to a routine, authorized PSI

. Garcia v. State , 930 S.W.2d 621, 624 (Tex. App.

— Tyler 1996, no pet.); Edwards v. State, 652 S.W.2d 519,
519

– 20 (Tex. App.

— Houston [1st Dist.] 1983, pet. ref'd )

. Therefore, a trial court may consider a PSI containing statemen ts made by the defendant, even though the interviewing probation officer did not warn the defendant of his Fifth A mendment rights prior to the interview. Garcia , 930 S.W.2d at 624; Edwards, 652 S.W.2d at 519.
Acco rdingly, appellant’s argument that he di d not affirmatively waive his Fifth Amendment rights affirmative is inapposite

. T he trial court properly considered appellant’s statements in the PSI , and the State ’ s references to the PSI were not improper

. See Garcia , 930 S.W.2d at 624; Edwards, 652 S.W.2d at 519

. Because we conclude that appellant did not preserve error and that the trial court did not err by allowing the State’s references to the PSI , we overrule appellant’s first issue. Additionally, because the references to the PSI were not i mproper , appellant’s trial attorney’s performance was not deficient for failing to object to them. See Strickland v. Washington , 466 U.S. 668, 687 (1984) ( establishing that to prevail in an ineffective assistance of counsel claim , a defendant must show th at (1) the counsel’s performance was deficient and (2) the defendant was prejudiced by the deficient performance). Accordingly, appellant ’s alternative argument that his trial attorney6 committed ineffective assistance of counsel also fails. We overrule a ppellant ’ s second
issue.
III. C ONCLUSION We affirm the trial court’s judgment.

__________________ ROGELIO VALDEZ Chief Justice Do not publish. T EX

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. P. 47.2(b). Delivered and filed the 5th day of December , 2013.