Opinion
No. 06-16-00211-CR
04-05-2017
DATHAN ARTEMUS DURANT, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court Hopkins County, Texas
Trial Court No. 1625155 Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION
After Dathan Artemus Durant pled guilty to, and was adjudged guilty of, possession of child pornography, the punishment phase of his trial involved testimony from one witness, Corley Weatherford, a Hopkins County Sheriff's investigator whose duties include investigating Internet crimes against children. Weatherford was questioned regarding his investigation of Durant and regarding some of the contents of a presentence investigation (PSI) report that included forensic analysis done by a computer laboratory in Dallas, not by Weatherford. Durant timely lodged a confrontation objection, and what had been marked State's Exhibit 7, the forensic analysis, was considered only for the purpose of providing foundation to State's Exhibits 3 through 6, still images of child pornography. The admission of State's Exhibits 3 through 6 is not challenged on appeal.
However, the PSI report, which was considered by the trial court in sentencing Durant, included five pages quoting from the forensic analysis, describing, in words and numbers only, five child-pornography videos found on Durant's computer by the computer laboratory. On appeal, Durant asserts that the trial court's consideration of the PSI report that included these five pages violated his right to confront the witnesses against him. Because use of the PSI report did not violate Durant's confrontation rights, we affirm the judgment of the trial court.
As in this case, when a criminal defendant elects to have the court determine punishment in a non-capital case, the use of a PSI report containing information generated by someone other than the sponsoring witness does not violate the defendant's right to confront witnesses against him or her. Stringer v. State, 309 S.W.3d 42, 48 (Tex. Crim. App. 2010); Sell v. State, 488 S.W.3d 397, 398 (Tex. App.—Fort Worth 2016, pet. ref'd). Stringer is both binding on this Court and consistent with binding federal precedent. A court's reliance on hearsay testimony to determine punishment does not violate Crawford. United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006).
Crawford concerned testimonial hearsay that was introduced at trial; unaddressed by Crawford is whether the Sixth Amendment right to confront witnesses applies similarly at sentencing. This court's pre-Crawford precedent rejected a confrontation right at sentencing. See United States v. Navarro, 169 F.3d 228 (5th Cir. 1999). Two unpublished opinions held that Crawford does not extend a defendant's rights under the Confrontation Clause to sentencing proceedings. See United States v. Leatch, 111 Fed. Appx. 770 (5th Cir. 2004) (unpublished); United States v. Salas, 182 Fed. Appx. 282 (5th Cir. 2006) (unpublished). Although this court's unpublished opinions are not precedential, their position on this issue comports with that of the majority of our sister circuits. See, e.g., United States v. Katzopoulos, 437 F.3d 569, 576 (6th Cir. 2006); United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005); United States v. Martinez, 413 F.3d 239, 243-44 (2d Cir. 2005); United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005); United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005). Following these authorities, we conclude that there is no Crawford violation when hearsay testimony is used at sentencing, rather than at trial.Id.
There was no confrontation violation here.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice Date Submitted: March 7, 2017
Date Decided: April 5, 2017 Do Not Publish