Summary
failing to object to use of PSI statements at sentencing waived error
Summary of this case from Sayre v. StateOpinion
No. 05-18-01149-CR
03-12-2020
Fermin Dominguez HERRERA, Appellant v. The STATE of Texas, Appellee
Roy Garrett Riddels, for Appellant. James Brett Smith, Karla Baugh, Paris, for Appellee.
Roy Garrett Riddels, for Appellant.
James Brett Smith, Karla Baugh, Paris, for Appellee.
Before Justices Osborne, Partida-Kipness, and Pedersen, III
Opinion by Justice Osborne Appellant Fermin Dominguez Herrera entered an "open" plea of guilty to the offense of indecency with a child. The trial court found appellant guilty and sentenced him to twenty years' imprisonment.
The indictment charging appellant with this offense alleged that he "did then and there with the intent to arouse or gratify the sexual desire of said defendant or A.V.O., engage in sexual contact with A.V.O., by touching the genitals or breast of A.V.O., a child younger than 17 years."
In a single issue on appeal, appellant claims that his due process rights were violated when the trial court relied on a pre-sentence investigation report (hereinafter PSI) which contained references and facts about an extraneous offense for which no evidence was received by the trial court during either the guilty plea or sentencing hearings. The State responds that appellant did not preserve this issue for appellate review because he did not object to the admissibility of the PSI or to testimony regarding the PSI during the sentencing portion of the trial. The State further responds that, even if error is preserved, PSI reports often contain information about arrests not resulting in final convictions, pending indictments, and/or hearsay statements which trial courts are allowed to consider when deciding the punishment of a criminal defendant. We agree with the State.
Background
After finding appellant guilty on his plea, the trial court informed appellant that a PSI would be prepared. Prior to sentencing, the State asked the trial court to "take notice" of the PSI; counsel for appellant stated that he had no objection.
At the beginning of the sentencing hearing, the trial court asked if everyone had received a copy of the PSI. Counsel for appellant replied: "We have, Your Honor, and I reviewed that with my client in his native language and we had an opportunity to review that."
The record reflects that appellant's native language is Spanish and that he required an interpreter at trial.
The PSI was not formally introduced as an exhibit at trial. However, all parties had access to the PSI and some portions of the PSI were referred to in testimony before the trial court. Rebecca Parks, the Grayson County Community Supervision and Corrections Department employee who conducted the PSI investigation, testified that appellant told her he touched the child's vagina but that he was trying to help her. Appellant did not admit that he did anything wrong, which in her opinion made appellant a bad candidate for probation. The conclusion of her summary in the PSI, which she read to the trial court during the sentencing hearing, stated as much:
In the record filed with this Court, the PSI appears in a supplemental clerk's record. It is file stamped April 24, 2019, by the clerk. Appellant, however, was sentenced on August 30, 2018, and judgment was entered on September 5, 2018.
[BY THE WITNESS] At this time Mr. Herrera does not appear to be a good candidate for community supervision or outpatient treatment for sexual offenders due to his denial of the sexual offense for which he was convicted, even though he reportedly admitted committing the offense to the Sherman Police
Department and entered a plea of guilty with the Court.
Appellant, testifying in his own behalf, asked the trial court to place him on probation so that he could continue working to support his wife and son. He admitted touching the child, though he claimed it was an accident.
Prior to sentencing appellant, the trial court stated its reasons for the sentence assessed:
[BY THE COURT] Mr. Herrera, based upon the evidence that I've heard and the presentence investigation report, and the nature of the charge, I previously accepted your plea agreement and found you guilty and now I assess your punishment to the second-degree felony, indecency with a child, sexual contact. Because of the nature of the charge, the evidence I received, and because of knowing whether you really are admitting or not about your crime, I'm going to sentence you to ... 20 years in the Texas Department of ... Corrections, Institutional Division.
The trial court asked if there were any questions to which counsel for appellant replied, "No questions from the defense, Your Honor."
Preservation
In his brief to this Court, appellant recognizes that he did not object to the preparation of the PSI, the contents of the PSI, or the trial court's consideration of the contents of the PSI in assessing sentence. Appellant claims, however, that the trial court's consideration of the PSI violated his constitutional right to due process and was structural error not requiring preservation.
To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that stated the specific grounds for the desired ruling if they were not apparent from the context of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1).
There are only a few exceptions to this general rule. In Marin v. State , the Court of Criminal Appeals set out three types of rules for error preservation: (1) absolute systemic requirements and prohibitions (structural error), (2) rights that must be implemented unless expressly waived (waivable-only rights), and (3) rights that are implemented upon request. 851 S.W.2d 275, 279–80 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State , 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). Systemic or absolute requirements include, but are not limited to, personal jurisdiction, subject-matter jurisdiction, a penal statute's compliance with the separation of powers section of the state constitution, a constitutional requirement that a district court conduct its proceedings at the county seat, a constitutional prohibition against ex post facto laws, and certain constitutional restraints on the comments of a trial judge. Saldano v. State , 70 S.W.3d 873, 888–89 (Tex. Crim. App. 2002). Waivable-only rights include such rights as the right to assistance of counsel at trial, the right to trial by jury, and the right of appointed counsel to have ten days of trial preparation. Id. at 888 ; see also Aldrich v. State , 104 S.W.3d 890, 895–96 (Tex. Crim. App. 2003).
Appellant cites this Court to no case, and we have found none, which has held that a trial court's reliance on a PSI that contained references and facts about an extraneous offense for which no evidence was received by the trial court during the guilty plea or sentencing hearing constitutes "structural error" or a waivable-only right. To the contrary, both Houston's Fourteenth Court of Appeals and the Fort Worth Court of Appeals have specifically held that constitutional violations associated with a PSI are not structural error and have required a specific objection to preserve error. Collins v. State , 378 S.W.3d 629, 630 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding that alleged Fifth Amendment violations associated with a PSI are not structural error and the defendant failed to preserve error by not objecting); Reyes v. State , 361 S.W.3d 222, 229 (Tex. App.—Fort Worth 2012, pet. ref'd) (holding that alleged Fifth and Sixth Amendment violations associated with a PSI are not structural error and the defendant failed to preserve error of the trial court's consideration of a PSI by not objecting when the PSI was introduced at trial or when the defendant testified about its contents).
Many cases from other courts also indicate that a defendant's rights involving a PSI are Category 3 rights under Marin , which may be forfeited by inaction. See, e.g., Griffith v. State , 166 S.W.3d 261, 263 (Tex. Crim. App. 2005) (holding that a defendant may waive his right to preparation of a PSI by inaction); Harris v. State , 416 S.W.3d 50, 52 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (holding that material inaccuracies in a PSI are waived if not raised at the time of the sentencing hearing); Brand v. State , 414 S.W.3d 854, 856 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd) (concluding that a defendant waived error by not challenging either the general adequacy of the PSI or the failure of the PSI to include a more complete psychological evaluation); Welch v. State , 335 S.W.3d 376, 381–82 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) (holding that omission of a psychological evaluation from PSI must be preserved by timely objection); Nguyen v. State , 222 S.W.3d 537, 542 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd) (holding that a party must object to the omission of a psychological evaluation from the PSI to preserve error); Hollin v. State , 227 S.W.3d 117, 123 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (holding that the failure to object to the consideration of a PSI prior to a formal finding of guilt waived error).
Cases from this Court also hold that a defendant's rights involving a PSI may be waived by inaction. See, e.g., Wright v. State , 873 S.W.2d 77, 83 (Tex. App.—Dallas 1994, pet. ref'd) (holding that right to a PSI is subject to procedural default and may be forfeited by inaction); Horton v. State , No. 05-18-00372-CR, 2018 WL 5077696, at *2 (Tex. App.—Dallas Oct. 18, 2018, no pet.) (mem. op., not designated for publication) (holding that because the defendant did not object that the trial court did not consider the PSI or did not allow the defense to comment on the PSI, he failed to preserve his complaints relating to the PSI); Karnes v. State , No. 05-07-01352-CR, 2008 WL 3917818, at *1 (Tex. App.—Dallas Aug. 27, 2008, no pet.) (not designated for publication) (holding that error was not preserved where the defendant did not object to the trial court's consideration of the PSI).
The purported error about which appellant complains does not rise to the level of structural error, nor is it a waivable-only right that must be implemented unless expressly waived. Consequently, because appellant failed to make the trial court aware of any objection to its consideration of the PSI, his complaint presents nothing for our review on appeal.
Consideration of the PSI Was Not Error
Even if appellant had preserved this point for appellate review, we would not conclude the trial court's consideration of the PSI was error.
Unless certain exceptions not applicable in this case are present, or the requirement is waived by the defendant, the trial court is required to direct a supervision officer to prepare a PSI in a felony case anytime the sentence is to be determined by that court. TEX. CODE CRIM. PROC. ANN. art. 42A.252(a), (c) ; Stringer v. State , 309 S.W.3d 42, 45 (Tex. Crim. App. 2010) ; Griffith , 166 S.W.3d at 262. The PSI should contain "general punishment-phase evidence" to assist the court in determining the sentence to assess. Stringer , 309 S.W.3d at 45 ; Townes v. State , 572 S.W.3d 767, 769–70 (Tex. App.—Houston [14th Dist.] 2019, pet. ref'd) (citing to Jackson v. State , 680 S.W.2d 809, 814 (Tex. Crim. App. 1984), which held that a PSI may be utilized to assist a trial judge in the exercise of his discretion when an issue of the proper punishment is present). The purpose of a PSI is to "provide a wide range of information to the trial court without an adversarial hearing." Stringer , 309 S.W.3d at 48 ; Townes , 572 S.W.3d at 769–70. A trial court may consider a defendant's criminal history identified in a PSI when assessing punishment. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(d) ; see also Smith v. State , 227 S.W.3d 753, 763 (Tex. Crim. App. 2007) (holding that a trial court, as a sentencing entity, may consider extraneous misconduct set forth in PSI over a defendant's objection that the misconduct has not been shown to have been committed by the defendant beyond a reasonable doubt); Cunningham v. State , No. 05-18-00214-CR, 2018 WL 5784489, at *2 (Tex. App.—Dallas Nov. 5, 2018, pet. ref'd) (mem. op., not designated for publication) (recognizing that the Code of Criminal Procedure does not prohibit a judge from considering extraneous misconduct evidence in a PSI in assessing punishment just because the extraneous misconduct has not been shown to have been committed beyond a reasonable doubt).
Here, it was not error for the trial court to consider the entire contents of the PSI in sentencing appellant. We overrule appellant's issue.
Conclusion
The trial court's judgment is affirmed.