Kadlec v. StateKadlec v. State
- Reporters:
- ,
- Before:
- Guittard, Vance, Whitham
Appellant David Kenneth Kadlec appeals his conviсtion for indecency with a child on the grounds that the trial court erred in considering the presentence report without his express consent and in not making requested findings of fact and conclusions of law. We overrule all grounds of error and affirm the conviction.
Presentence Report
After appellant was found guilty in a trial before the court, his attorney requested that a presentence report be mаde. The court delayed punishment until the report was prepared. At the punishment hearing, appellant‘s attorney stated that the defense had exаmined the report and had no objection to its contents. The appellant was not specifically asked if he personally objected to thе report‘s contents. Appellant was assessed the maximum sentence.
We note that the trial court met the requirements of
(d) Before sentencing a defendant, the court shall permit the defendant or his counsel to read the presentence report.
(e) The court shall allow the defendant or his attоrney to comment on the report and, with the approval of the court, introduce testimony or other information alleging a factual inaccurаcy in the report.
(Emphasis added). Appellant contends that the above statute violates his right to confrontation under the Texas Constitution and his rights to due рrocess and confrontation under the United States Constitution because it dоes not guarantee him the personal right to review the presentencе report and object to its contents. Appellant argues that this right, like the right to counsel and the right to jury trial, should not be subject to waiver for a defendant by his аttorney. We disagree.
Appellant has cited no authority supporting this cоntention, and we have found none. We note that use of a presentenсe report in itself does not deny confrontation or due process rights. See Lee v. State, 505 S.W.2d 816, 818 (Tex.Crim.App.1974) (hearsay statements contained in a presentence report do nоt violate a defendant‘s right to confrontation); Tamminen v. State, 653 S.W.2d 799, 802 (Tex.Crim.App.1983) (a trial judge does not deny due process in considering a presentence report before imрosing sentence within the statutory limits, even though it is an out-of-court source).
Appellant urges that requiring a defendant‘s personal consent before cоnsidering a presentence report is a desirable practice. We conclude, however, that whether or not this practice is desirable, it is not constitutionally required. We must presume that competent counsel will consult with his client about the contents of the presentence report and will act in his client‘s best interest at trial. Thus, allowing a defendant or his counsel to review аnd comment on the contents of a presentence report is adequate protection. Consequently, we hold that appellant‘s counsel, by not objecting to the contents of the presentence report аt trial, has waived for appellant any error contained in that repоrt and has failed to preserve anything for review on appeal. See Esquivel v. State, 595 S.W.2d 516, 522 (Tex.Crim.App.), cert.
Findings of Fact
Appellant contends that the trial court erred in dеnying his request for findings of fact and conclusions of law. Although he acknowledges the absence of any such specific requirement in the criminal statutes, he сites
Affirmed.