Charles Edward Taylor, Jr. v. State of Texas

Opinion filed December 22, 2011




                                             In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-10-00114-CR
                                         __________

                    CHARLES EDWARD TAYLOR, JR., Appellant

                                                V.

                               STATE OF TEXAS, Appellee


                            On Appeal from the 350th District Court

                                      Taylor County, Texas

                                  Trial Court Cause No. 8693D


                             MEMORANDUM OPINION

          Charles Edward Taylor, Jr. entered an open plea of guilty to the felony offense of
aggravated sexual assault of a child under fourteen years of age. The trial court assessed
punishment at confinement in the Institutional Division of the Texas Department of Criminal
Justice for a term of forty years. Appellant challenges his punishment in a single issue. We
affirm.
          Appellant’s conviction for aggravated sexual assault of a child arises from his act of
engaging in sexual conduct with his girlfriend’s thirteen-year-old daughter.        During the
sentencing hearing, appellant testified that the first encounter happened when the victim grabbed
him and touched him; one thing led to another. He further testified that he was medicated, had
been drinking, and was in a vulnerable situation. When asked whether he was trying to say that
he was not at fault, he responded, “Yes, I am trying to say that.” He was then asked if he was
blaming the thirteen-year-old victim; he said, “We are both at fault on this.” Although appellant
initially testified that both he and the victim were responsible, he eventually stated that he
accepted responsibility for his own actions. He also said that he was remorseful and sorry.
Appellant stated that there were two separate encounters and that the victim became pregnant as
a result.
        During cross-examination, the prosecutor asked appellant if the victim would be lying if
she said that the encounters occurred five to seven times a week and that it started when she was
eleven years old. Appellant first responded that he did not know. During redirect examination,
he clarified his answer and said that was not what happened and that what the prosecutor said
was not true. After the trial court reviewed the presentence investigation report and heard
testimony from several witnesses, it sentenced appellant to forty years imprisonment. The trial
court certified that appellant had the right to appeal as to punishment issues only. This      court
dismissed appellant’s initial appeal for want of jurisdiction. See Taylor v. State, No. 11-09-
00136-CR, 

 (Tex. App.—Eastland June 18, 2009, no pet.) (mem. op., not
designated for publication). The Court of Criminal Appeals granted appellant an out-of-time
appeal, and he timely filed this appeal.
        In a single issue, appellant challenges his punishment. He contends that the trial court
failed to comply with the presentence investigation requirements under Article 42.12, section 9(i)
of the Texas Code of Criminal Procedure. Specifically, appellant alleges that the trial court
failed to obtain a PSI report that contained appellant’s IQ and adaptive behavior score. See TEX.
CODE CRIM. PROC. ANN. art. 42.12, § 9(i) (West Supp. 2011). The PSI report is not included in the
record for our review. Although the report was discussed at the sentencing hearing, it was never
entered into evidence. Items not included in the record cannot be considered by this court on
appeal. See Pollan v. State, 

 (Tex. Crim. App. 1981) (affidavit attached to
brief and not a part of the record was not entitled to consideration by court on appeal); Seifried v.
State, No. 11-10-00006-CR, 

 (Tex. App.—Eastland October 27, 2011, no
pet. h.) (mem. op., not designated for publication) (PSI report not included in record cannot be

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considered on appeal); Belton v. State, 

 (Tex. App.—El Paso 1995, pet.
ref’d) (out-of-court affidavits attached to appellate brief cannot be considered on appeal); 43A
GEORGE E. DIX & JOHN M. SCHMOLESKY, TEXAS PRACTICE:                  CRIMINAL PRACTICE     AND

PROCEDURE § 46:123 (2011) (defense counsel should include the PSI in the record if the material
in the PSI is in dispute). Appellant’s counsel made several objections to the PSI report during
sentencing. However, counsel did not object that appellant’s IQ and adaptive behavior score
were omitted from the report or were never determined. The record shows that, during the
sentencing hearing, the trial court acknowledged that the PSI report contained a paragraph
related to appellant’s MHMR history. During direct examination at the hearing, appellant
confirmed that the PSI report listed his most recent diagnosis for MHMR as December 17, 2008.
Without the PSI report before us, we cannot determine whether appellant’s IQ or adaptive
behavior score were included. We overrule appellant’s sole issue.
       The judgment of the trial court is affirmed.



                                                           JIM R. WRIGHT
                                                           CHIEF JUSTICE




December 22, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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