AFFIRM; and Opinion Filed October 18, 2018.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-18-00372-CR

No. 05-18-00373-CR

No. 05-18-00374-CR

JONTE LAMAR HORTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District Court

Dallas County, Texas

Trial Court Cause Nos. F17-24398-W, F17-24399-W & F17-24400-W

MEMORANDUM OPINION

Before Justices Lang, Fillmore, and Schenck

Opinion by Justice Fillmore

Jonte Lamar Horton was convicted of aggravated assault, aggravated robbery, and 

aggravated kidnapping and sentenced to twelve years’ imprisonment in each case. In two points 

of error, Horton argues the trial court erred by neither reviewing the presentence investigation

(PSI) report nor allowing the defense a chance to respond to the report. We affirm the trial court’s 

judgments.

On two successive evenings, Horton unsuccessfully attempted to rob Huan Pham and 

Jawad Ali. Horton was charged with aggravated assault with respect to his attempt to rob Pham 

and with aggravated robbery and aggravated kidnapping with respect to his attempt to rob Ali. 

Without the benefit of a plea bargain, Horton pleaded guilty to all three charges, and the trial court 
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“passed” the cases for sentencing. While awaiting the sentencing hearing, Horton was interviewed 

by the “probation department” and a PSI report was evidently prepared.1

At a subsequent hearing, Horton informed the trial court that he was not guilty of the

aggravated kidnapping of Ali, and the trial court granted Horton a new trial on the aggravated 

kidnapping charge. In a combined bench trial in all three cases, the trial court heard evidence 

relating to the kidnapping of Ali and relevant to punishment in all three cases, including mitigating 

evidence offered by Horton. The trial court found Horton guilty of all three charges and sentenced 

him to twelve years’ imprisonment in each case.

Horton argues the trial court erred by not reviewing the PSI report and not allowing the 

defense to comment on the report. Unless certain exceptions apply, the trial court is required to 

direct a supervision officer to prepare a PSI report in a felony case. TEX. CODE CRIM. PROC. ANN.

art. 42A.252(a), (c);

2 Griffith v. State, 166 S.W.3d 261, 262 (Tex. Crim. App. 2005). Unless 

waived by the defendant, at least forty-eight hours prior to the imposition of sentence, the trial 

court must permit the defendant or his counsel to read the PSI report. TEX. CODE CRIM. PROC.

ANN. art. 42A.255(a). The trial court must also allow the defendant or his counsel to comment on 

the PSI report and, with the approval of the court, introduce testimony or other information alleging 

a factual inaccuracy in the report. Id. art. 42A.255(b). However, a complaint regarding the trial 

court’s failure to comply with its statutory duties pertaining to a PSI report may be forfeited by 

inaction. Wright v. State, 873 S.W.2d 77, 83 (Tex. App.—Dallas 1994, pet. ref’d) (concluding 

complaints regarding trial court’s failure to comply with statute requiring preparation and review

of PSI report were subject to procedural default and could be forfeited by inaction); see also 

 

1 The PSI report is not in the appellate record; however, neither party disputes that one was prepared.

2 Effective January 1, 2017, article 42.12 of the code of criminal procedure was re-codified as chapter 42A of the code of criminal procedure. 

See Act of May 26, 2015, 84th Leg., R.S., ch. 770, §§ 1.01, 4.02, 2015 Tex. Gen. Laws 2321, 2321–65. Because the statute was re-codified without 

substantive change, cases decided under the former article 42.12 remain applicable to our analysis.
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Griffith, 166 S.W.3d at 263 (concluding defendant may waive right to preparation of PSI report 

required by article 41A.252).

3

Horton did not object at trial that the trial court did not consider the PSI report or did not 

allow the defense to comment on the report. Horton, therefore, failed to preserve his complaints

relating to the PSI report for appellate review. See Wright, 873 S.W.2d at 82–83; see also TEX. R.

APP. P. 33.1(a) (before party can raise complaint on appeal, he must have objected in trial court 

and obtained ruling on objection).

4

However, even if Horton had preserved his complaints, we would conclude he failed to 

identify any error by the trial court. “Where procedural requirements do not affirmatively appear 

in the record to have been violated, a presumption of regularity of the trial judge’s ruling must 

prevail.” Jones v. State, 646 S.W.2d 449, 449 (Tex. Crim. App. 1983) (per curiam); see also 

Frame v. State, 615 S.W.2d 766, 770 (Tex. Crim. App. [Panel Op.] 1981) (noting that, when record 

is silent, appellate court must presume compliance with procedural rules).5 The burden is on the 

appellant to overcome the presumption. Wright, 873 S.W.2d at 80. In this case, there is no 

indication in the appellate record that the trial court did not review the contents of the PSI report 

or did not allow the defense to comment on the report. Rather, the record is simply silent on the 

matter. Accordingly, we must presume the trial court complied with the procedural requirements 

relating to the PSI report. See id. 

 

3

See also Benitez v. State, No. 05-14-00384-CR, 2015 WL 4550737, at *2 (Tex. App.—Dallas July 28, 2015, no pet.) (mem. op., not 

designated for publication) (concluding defendant waived complaint that he was never apprised of contents of PSI report because “complaints 

involving a presentencing investigation report are forfeitable by inaction”); Evans v. State, No. 11-09-00341-CR, 2011 WL 5994429, at *6 (Tex. 

App.—Eastland Nov. 30, 2011, pet. ref’d) (mem. op., not designated for publication) (“Courts have held that [statutory rights pertaining to PSI 

reports] are subject to waiver because they are in a category of rights that can be forfeited via ‘procedural default.’”).

4

See also McBride v. State, No. 05-11-01727-CR, 2013 WL 363776, at *1 (Tex. App.—Dallas Jan. 31, 2013, no pet.) (mem. op., not 

designated for publication) (appellant waived any error by trial court in not allowing appellant opportunity to object to PSI report by failing to raise 

complaint in trial court); Mitchell v. State, No. 03-09-00643-CR, 2010 WL 5019123, at *2 (Tex. App.—Austin Dec. 8, 2010, no pet.) (mem. op., 

not designated for publication) (appellant waived complaint about any failure by trial court to review PSI report by failing to object in trial court).

5

See also Benitez, 2015 WL 4550737, at *2.
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We resolve Horton’s two points of error against him and affirm the trial court’s judgments.

Do Not Publish

TEX. R. APP. P. 47

180372F.U05

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

JONTE LAMAR HORTON, Appellant

No. 05-18-00372-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District 

Court, Dallas County, Texas,

Trial Court Cause No. F17-24398-W.

Opinion delivered by Justice Fillmore, 

Justices Lang and Schenck participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 18th day of October, 2018.
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

JONTE LAMAR HORTON, Appellant

No. 05-18-00373-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District 

Court, Dallas County, Texas,

Trial Court Cause No. F17-24399-W.

Opinion delivered by Justice Fillmore, 

Justices Lang and Schenck participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 18th day of October, 2018.
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

JONTE LAMAR HORTON, Appellant

No. 05-18-00374-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District 

Court, Dallas County, Texas,

Trial Court Cause No. F17-24400-W.

Opinion delivered by Justice Fillmore, 

Justices Lang and Schenck participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 18th day of October, 2018.