Opinion
02-23-00100-CR
08-17-2023
Elijah Alexander Reyes, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 485th District Court Tarrant County, Texas Trial Court No. 1656614D
Before Sudderth, C.J.; Kerr and Bassel, JJ.
MEMORANDUM OPINION
DABNEY BASSEL, JUSTICE
The grand jury indicted Appellant Elijah Alexander Reyes for five counts: continuous sexual abuse of a young child (Count One); aggravated sexual assault of a child (Counts Two, Three, and Four); and indecency with a child by contact (Count Five). He entered a guilty plea to Count Two of the indictment. In the plea's written waivers, the trial court requested a presentence investigation report (PSI). At a hearing on punishment, the PSI and two supplements were tendered into evidence by the State. In response, Appellant's counsel stated, "No objection," and the trial court admitted the PSI and its supplements into evidence. The trial court sentenced Appellant to twenty years' confinement.
The State waived Counts One, Three, Four, and Five.
The procedures dealing with a PSI are contained in Texas Code of Criminal Procedure Chapter 42A. See Tex. Code Crim. Proc. Ann. arts. 42A.251-.258.
In a single point on appeal, Appellant contends that he did not forfeit error when his counsel indicated "no objection" to the admission of the PSI and its supplements; that the admission of the PSI violated the principles articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2005), regarding the right to confrontation under the Confrontation Clause of the Sixth Amendment to the United States Constitution; and that the error harmed him. But Appellant fails to acknowledge authority from this court establishing that he forfeited his claim of error and authority from the Court of Criminal Appeals establishing that admission of the PSI did not constitute a Confrontation Clause violation.
The trial court certified that this "is not a plea-bargain case, and the defendant has the right of appeal."
On the question of whether Appellant forfeited his claim of error, we have rejected the contention that a defendant has no obligation to object when a PSI is offered into evidence. See Sell v. State, 488 S.W.3d 397, 398 (Tex. App.-Fort Worth 2016, pet. ref'd); see also Tex.R.App.P. 33.1(a)(1). In Sell, we rejected the very argument that Appellant makes-that any objection would have been futile because the state of the law was stacked so heavily against the objection. See 488 S.W.3d at 399 (citing Ex parte Hathorn, 296 S.W.3d 570, 572 (Tex. Crim. App. 2009)). Further, we noted in Sell that the appellant had forfeited error because his counsel had stated that he had no objection to the admission of the PSI. See id.
We have relied on Sell repeatedly to hold that the failure to object to the admission of a PSI and counsel's statement that there is "no objection" to the admission of a PSI forfeits a claim of error based on the PSI's admission into evidence. See Orr v. State, No. 02-18-00058-CR, 2019 WL 1285321, at *4 (Tex. App.- Fort Worth May 21, 2019, pet. ref'd) (mem. op., not designated for publication); Steen v. State, Nos. 02-18-00036-CR, 02-18-00220-CR, 2018 WL 4782164, at *1-2 (Tex. App.-Fort Worth Oct. 4, 2018, no pet.) (mem. op., not designated for publication); Jones v. State, No. 02-17-00332-CR, 2018 WL 2992591, at *1 (Tex. App.-Fort Worth June 14, 2018, pet. ref'd) (mem. op., not designated for publication); Lewis v. State, Nos. 02-18-00149-CR, 02-18-00150-CR, 2018 WL 2248501, at *1 (Tex. App.-Fort Worth May 17, 2018, pet. ref'd) (mem. op., not designated for publication). Appellant's brief not only fails to distinguish the cited authority from this court, but it also fails to acknowledge the existence of that authority.
Beyond the fact that Appellant has forfeited his appellate complaint, his brief only tangentially acknowledges that the Court of Criminal Appeals has rejected his argument on the merits. The Court of Criminal Appeals has explained why consideration of a PSI by a trial court in a noncapital case does not constitute a violation of the Confrontation Clause principles of Crawford:
[T]he purpose of a report such as the PSI used here is to provide a wide range of information to the trial court without an adversarial hearing. The probation officer who prepares the report is neutral[,] and the report is written in anticipation of consideration by the trial judge for sentencing, not for prosecution. The PSI "is prepared by the community supervision and corrections department and is as likely to contain information adverse to the punishment position of the [S]tate as of the defense." 43 Dix and Dawson, Texas Practice: Criminal Practice [a]nd Procedure [§] 38.167 (2d ed. 2001). By statute, the [Texas] Legislature has directed what is to be included in a PSI, and the statute does not limit the criminal history to final convictions. The PSI statute also provides the defendant the opportunity to present contrary evidence.
We hold that when a PSI is used in a non[]capital case in which the defendant has elected to have the judge determine sentencing, Crawford does not apply. For us to conclude in [a]ppellant's favor would require a trial judge to hold a mini-trial for sentencing and would thwart the purpose of the PSI as a tool for the court to use in determining punishment. This holding is limited to a sentencing hearing in which the judge assesses punishment. We need not address here whether Crawford applies when a jury determines the sentence in a non[]capital case.Stringer v. State, 309 S.W.3d 42, 48 (Tex. Crim. App. 2010). As recently as June of this year, we cited Stringer and noted that its holding is binding precedent on this court. See Offord v. State, No. 02-22-00270-CR, 2023 WL 4243334, at *1 (Tex. App.-Fort Worth June 29, 2023, pet. filed) (mem. op., not designated for publication).
For the reasons stated, we overrule Appellant's sole point and affirm the trial court's judgment.