In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-12-00285-CR 

DONNY WILLIAMS, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 137th District Court 

Lubbock County, Texas 

Trial Court No. 2011-430,939, Honorable John J. "Trey" McClendon, Presiding 

 

September 5, 2013 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. 

Upon his plea of guilty, Donny Williams was convicted of felony driving while 

intoxicated and sentenced to eight years in prison. He contends that the trial court 

erred in considering unadjudicated (and unproven) criminal offenses appearing in his 

pre-sentence investigation report (PSI) when assessing his punishment. We affirm the 

judgment. 

At the punishment hearing, appellant objected to the criminal history in the PSI 

as far as “certain things listed that result in dismissals or unknown dispositions.” In 
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response, the trial court stated, “I understand the purpose of a PSI. I’m taking judicial 

notice of it. I’ll give proper weight to what is relevant and what is not.” During the 

hearing, the State introduced appellant’s convictions for violation of a protective order, 

driving while intoxicated, assault, assault on a public servant, burglary of a habitation, 

evading arrest, and driving while intoxicated. Appellant himself testified that he had 

been on probation at least once but had it revoked for committing a new offense.

At the time the trial court sentenced appellant, it stated: “. . . I cannot be 

persuaded to look past your past history, which includes reckless conduct, violations of 

protective orders, assault on a public servant, assault causing bodily injury, harassment,

burglary of a habitation, evading arrest or intention [sic] using a vehicle, which also 

involves a vehicle as do the DWI cases.” Appellant contends this statement shows that

the trial court considered unadjudicated offenses included in the PSI report. We 

overrule the issue for several reasons.

First, the record fails to reflect that the PSI was admitted into evidence. Nor does 

the physical item appear in the appellate record before us. The burden lies with the 

appellant to provide us with an appellate record sufficient to resolve the issue he 

presents. See Guajardo v. State, 109 S.W.3d 456, 462 n.17 (Tex. Crim. App. 2003). 

Without the document about which he complains being admitted into evidence or 

otherwise being included in the appellate record, we lack the ability to assess whether it 

contained the objectionable matter to which he alludes. Thus, appellant has not 

presented us with an appellate record sufficiently adequate to resolve the dispute, and 

his attaching the missing document to his brief does not fill the void. Rasberry v. State, 

535 S.W.2d 871, 873 (Tex. Crim. App. 1976) (noting that documents attached to a brief
3

but omitted from the appellate record cannot be considered); accord Witkovsky v. State, 

320 S.W.3d 425, 428 (Tex. App.–Fort Worth 2010, pet. ref’d, untimely filed) (striking 

documents from an appendix to a brief because they were not also included in the 

appellate record). 

Second, and assuming arguendo that the PSI attached to the brief was part of 

the record, we would again lack basis to find error. A trial court may consider the PSI in 

assessing punishment. TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3d (West Supp. 

2012). And to the extent that a PSI alludes to extraneous offenses or bad acts, it is 

error to consider those offenses or acts if no evidence from any source exists from 

which it may be rationally inferred that the defendant committed them. Smith v. State, 

227 S.W.3d 753, 764 (Tex. Crim. App. 2007). 

Here, appellant objected to the PSI because it referred to offenses that had been

dismissed or the disposition of which was unknown. Though the objection was 

apparently overruled because the trial judge took judicial notice of the document despite 

the objection, it did so only after stating that it would “give proper weight to what is 

relevant and what is not.” Furthermore, in alluding to appellant's “history” while 

pronouncing sentence, the various offenses mentioned by the trial judge were not only 

those for which appellant was actually convicted but also those itemized in appellant's 

brief as being evidenced by a judgment. In other words, appellant's commission of 

those offenses was established by some evidence. Given these circumstances, we 

conclude that the trial court considered only the offenses in the PSI shown to have been 

committed by appellant and ignored the others. And, nothing in the record indicates

that it did otherwise. See Herford v. State, 139 S.W.3d 733, 735 (Tex. App.–Fort Worth 
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2004, no pet.) (stating that while an appellate court no longer automatically presumes

the trial court did not consider inadmissible evidence, it can assume that the trial court 

disregarded irrelevant or inadmissible evidence when it indicated it would and the 

record fails to show it that the court did otherwise); Chavira v. State, No. 13-10-00002-

CR, 2011 Tex. App. LEXIS 5390, at *13 (Tex. App.–Corpus Christi July 14, 2011, no 

pet.) (not designated for publication) (holding the same). 

Accordingly, the judgment is affirmed. 

Brian Quinn 

Chief Justice

Do not publish.