COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

J OE M. GARZ A, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-09-00033- CR

Appea l from Criminal District Court No. 3 of Da llas County , Texas (TC # F- 0042583-KJ)

O P I N I O N J oe M. Gar za pled g uilty to driving while intox icated and the court assessed a ten-y ear prison sentenc e. Gar za bring s one issue for revie w relating to the pre- sentenc e repor t. For the rea sons that follow, we a ffirm. F ACTUAL BACK GR OUND Appellant waived t ri al b y j ury and pled g uilty to having driven a motor vehicle while intox icated on September 11, 2000. He a dmitted to having two previous convictions for offense s related to the opera

ting of a motor vehicle while intox icated, making the offe nse a third deg ree felony under former Section 49.09(b) of the Penal Code. Act of May 31, 1999, 76th L eg ., R.S., ch. 1364 § 12, 1999 T E X .G E N . L A W S 4610 (ame nded 2005)(c urre nt version at T E X .P E N .C O D E AN N . § 49.09(b)( 2)(Ve rnon Supp. 2009)). The proce eding s wer e initially suspended to enable prepa ration of a pre- sentenc e investigation r eport conce rning the circ umstances of the offe nse and Appellant’s criminal and soc ial history . T E X .C O D E C R I M .P R O C .AN N . art. 42.12, § 9(a )(Ve rnon Supp. 2009). The trial court aff

orded the parties the opportunity to prese nt additional evidenc e rele vant to sentenc ing. I t then assessed Appellant’s punishment at ten y ear s’ confine ment in prison and a fineof $1,000. Appellant reta ined new counsel, and filed a motion for new trial alleg ing his plea was not

voluntary beca

use he was betra

y ed by trial counsel. A hear ing on the motion was schedule d--but not conducte d--a

nd the motion was overr

uled by operation of law. Meanw hile, Appellant obtained his rele ase from custody

. Subsequently , the bail bond was deter mined to be improper and was revoke d. Appellant was re- arr ested and b eg an serving his sentenc e. On October 15, 2008, the Court of Criminal Appeals ente red a n order permitting A

ppellant to perf

ect a n out-of-time a

ppeal. P RE-SENTE NCE REP ORT I n his sole issue for revie w, Appellant complains that the trial court err ed in failing to allow him or his attorney

the opportunity

to object to the pre -sentenc e re port. He e mphasizes that at the beg inning of th e s en t en ci ng hear ing, the trial court immediately beg an taking testimony from witnesses. Appellant contends that Article 42.12, § 9(d) of the Texas Code of Criminal Procedur e provides that befor e sentenc ing, the judge shall permit the defe ndant and his counsel to rea d the presentenc e re port and g ive them an oppor tunity to object to any

inacc urate information. At t h e b egi n n i ng of the sentenc ing hear ing in J uly 2001, the court asked, “Doe s the State have any thing they wish to offe r other t h an t h e prese ntence repor t? ” The prosec utor did not, and rested. D efe nse counse l did not object at that time, and proc eede d to call Appellant to the stand. The rec ord does not r efle ct any inquiry by the cour t as to whether

Appellant or his c ounsel had rev i ew ed the pre- sentenc e investigation repor t. Appellant interpre ts this to mean he was eff ectively denied the rig ht to rea d the repor t prior to sentenc ing and to comment on its contents or point out any fac tual inacc urac ies as aff orded by former Article 42.12, § 9(d) of the Code of Criminal Procedur e (Ac t of May 29, 1989, 71st leg

. R.S., ch. 785 § 4.17, 1989 T E X .G E N .L A W S 3503 (ame nded 2005)) a nd T E X .C O D E C R I M .P R O C .AN N . art. 42.12, § 9(e ). We disag ree . T he Dallas Court of Appeals has determined t hat a rig ht g rante d to a defenda nt b y Ar t i cl e42.12, § 9 is forf eit ab l e by inaction. W

right v. Stat e , 873 S.W .2d 77, 83 (Tex.App.--Da llas 1994, pet. ref ’d) and Campbell v. State , 1994 WL 679272 (Tex.App.--Da llas 1994, no pet.)(not desig nated for publication). Moreove r, objections to the contents of a pre- sentenc e repor t cannot be raised for the first time upon appea l. Gerhardt v. State , 935 S.W .2d 192, 196 (Tex.App.--B eaumont 1996, no pet.). Appellant did not ask to rea d or comment on the repor t. He did not object to the trial court’s purported failure to allow him to do so, nor did h e ra i s e t h e issue in his motion for new trial. Acc ording ly , Appellant has failed to prese rve his complaint for appellate revie w. See T E X .R.A P P .P. 52(a) ; W right , 873 S.W .2d at 83. We o v er ru l e h i s sole point and aff irm the judgme nt of the trial court be low.

Marc h 17, 2010 ANN CRAWFORD McCLURE, J ustice Be fore McClure, J., R ivera , J ., and Chew, Judge Chew, Judge, sitting by

assig nment (Do Not Publish)