COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-05-111-CR
FRANCIS WILLIAM STRINGER APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
OPINION ON REMAND
I. INTRODUCTION
The primary issue we address in this appeal is whether Appellant Francis
William Stringer forfeited his Confrontation Clause objection to the “Adult
Felony History” portion of his presentence investigation report (PSI). Because
Stringer placed his criminal history at issue and accepted the benefits of the
order requiring a PSI, Stringer has forfeited or is estopped from asserting a Confrontation Clause objection to the Adult Felony History portion of his PSI.
We affirm the trial court’s judgment.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Stringer pleaded guilty to a felony and filed an application for probation.
At a January 27, 2005 plea hearing, the trial court accepted Stringer’s guilty
plea and ordered the preparation of a PSI. No record of the plea hearing exists.
Stringer’s punishment hearing was convened on March 30, 2005, after the trial
court received the PSI. At the punishment hearing, Stringer’s counsel
specifically objected that the four paragraphs of the PSI titled, “Adult Felony
History,” violated Stringer’s Confrontation Clause Rights. 1 The trial court
overruled Stringer’s objection. The State did not present any evidence, and
Stringer did not present any evidence.
Based on the information contained in the PSI, Stringer argued that the
trial court should grant him probation. Specifically, Stringer argued:
1 Appellant’s exact objection to the PSI was that
[p]age 11 under the heading of “Adult Felony History”, that - - the four paragraphs under that heading, Your Honor, I would object to it being considered because of the Crawford versus Washington. It violates our right of confrontation and cross-examination because it’s a pending unadjudicated offense out of Dallas County, and the reporter, the PSI officer, is bringing evidence of accusations based upon a case in Dallas, and we would object . . . .
2 First, as the clerk’s record reflects, Mr. Stringer is eligible for probation. He’s sworn before the Court that he’s never been convicted of a felony.
....
I would point out that in the presentence investigation, at one time several years ago he completed a year probation for misdemeanor theft. He has shown that he can accomplish things that are positive. His education history, he’s got two degrees, plus 30 hours towards a Master’s degree. . . . His employment history shows there that he’s had - - at least the five jobs shown there, he’s always been a computer programmer . . . .
At the conclusion of the hearing, the trial court sentenced Stringer to nine
years’ confinement.
In a single point, Stringer complained that the trial court erred during the
punishment phase by overruling his Confrontation Clause objection to the Adult
Felony History section of his PSI. On original submission, following precedent
from our court, we agreed with the State that Stringer had waived his objection
to the PSI by signing a specific written admonishment.2 See Stringer v. State,
2 The admonishment we relied upon provided:
Joined by my attorney and in accordance with Art. 1.13 and 1.15 of the Code of Criminal Procedure, I waive and give up my right to a jury, both as to my guilt and assessment of my punishment. Under Art. 1.15, Code of Criminal Procedure, I waive and give up the right to appearance, confrontation, and cross-examination of the witnesses, and I consent to oral and written stipulations of evidence.
3 196 S.W.3d 249, 251–52 (Tex. App.—Fort W orth 2006) (citing Rosalez v.
State, 190 S.W.3d 770, 773 (Tex. App.—Fort Worth 2006, no pet.)), rev’d,
241 S.W.3d 52 (Tex. Crim. App. 2007); see also Hamlin v. State, Nos. 02-04-
00240-CR, 02-04-00241-CR, 02-04-00242-CR, 2005 WL 3436523, at *1
(Tex. App.—Fort Worth Dec. 15, 2005, no pet.) (mem. op., not designated for
publication) (holding appellant waived his right to object to a PSI by signing
admonishment like the one here). The court of criminal appeals held that the
written waiver applied only to guilt-innocence, not to punishment, reversed our
judgment, and remanded the case to us to first consider the other waiver
grounds asserted by the State. Stringer v. State, 241 S.W.3d 52, 59 (Tex.
Crim. App. 2007). We do so now.
III. F ORFEITURE OF C ONFRONTATION C LAUSE O BJECTION TO C RIMINAL H ISTORY IN PSI
A. Waiver, Invited Error, and Acceptance of Benefits Doctrine
The doctrine of invited error is properly thought of, not as a species of
waiver, but as estoppel. Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim.
App. 1999), cert. denied, 529 U.S. 1102 (2000). Waiver might usefully be
distinguished from what is sometimes called “invited error.” Id. As the court
in Prystash stated,
If a party affirmatively seeks action by the trial court, that party cannot later contend that the action was error. This is not really a waiver of error previously committed. Rather, it is part of the
4 definition of what can constitute error, and quite reasonably defines error of which a party may complain as excluding those actions of the trial court actually sought by the party in that tribunal.
Id. (quoting George E. Dix & Robert O. Dawson, 43 Texas Practice–Criminal
Practice and Procedure § 42.141 (Supp. 1999) (footnote omitted)).3 Another
variant of estoppel is “estoppel by judgment.” That concept applies to estop
“[o]ne who accepts the benefits of a judgment, decree, or judicial order” from
denying “the validity or propriety thereof, or of any part thereof, on any
grounds; nor can he reject its burdensome consequences.” Rhodes v. State,
240 S.W.3d 882, 891 (Tex. Crim. App. 2007).
B. Statutory PSI Scheme
The statutory PSI scheme provides that “[e]xcept as provided by
Subsection (g) of this section, before the imposition of sentence by a judge in
a felony case, . . . the judge shall direct a supervision officer to report to the
judge in writing.” Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a) (Vernon Supp.
2008) (emphasis added). The statute also provides that the PSI is to include
the “circumstances of the offense with which the defendant is charged, the
amount of restitution necessary to adequately compensate a victim of the
3 Other cases applying the invited error doctrine include McCray v. State, 861 S.W.2d 405, 409 (Tex. App.—Dallas 1993, no pet.); Mann v. State, 850 S.W.2d 740, 742 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d); Ex parte Hargett, 827 S.W.2d 606, 607–08 (Tex. App.—Austin 1992, pet. ref’d).
5 offense, [and] the criminal and social history of the defendant.” Id. (emphasis
added). Thus, when a defendant files an application for probation and requests
the trial court to assess punishment in a felony case, a trial court “shall” direct
the preparation of a PSI. Id.; Griffith v. State, 166 S.W.3d 261, 263 (Tex.
Crim. App. 2005); Whitelaw v. State, 29 S.W.3d 129, 131–32 n.13 (Tex.
Crim. App. 2000). And the PSI shall report “in writing on . . . the criminal . .
. history of the defendant.” Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a).
Nonetheless, a defendant may waive a PSI. See Griffith, 166 S.W.3d at 263
(dealing with an express waiver of PSI); Summers v. State, 942 S.W.2d 695,
696–97 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (dealing with an
implied waiver via the defendant’s failure to object to the absence of a PSI).
The PSI was originally intended only to facilitate a trial court’s decision
on the issue of probation. See Smith v. State, 227 S.W.3d 753, 761 (Tex.
Crim. App. 2007). The court of criminal appeals has repeatedly held that a trial
court should use the PSI to determine whether the person convicted is entitled
to probation. See id. at 761 n.21 (citing McNeese v. State, 468 S.W.2d 800,
801 (Tex. Crim. App. 1971) (trial court should “use the probation officer’s
report and take into consideration all of the pertinent information to more
intelligently determine if the person convicted is entitled to probation”); Valdez
v. State, 491 S.W.2d 415, 417 (Tex. Crim. App. 1973) (same); Clay v. State,
6 518 S.W.2d 550, 555 (Tex. Crim. App. 1975) (same)); see also Anderson v.
State, 896 S.W.2d 578, 580 (Tex. App.—Fort Worth 1995, pet. ref’d)
(recognizing that “[o]nce the door is opened regarding suitability for probation,
the State may inquire into any bad acts relevant to deciding appellant’s
suitability). Because the PSI was originally to be used in this context—for a
probation determination—the court of criminal appeals was not concerned that
the PSI “might contain what would be, at a formal punishment hearing, patently
objectionable as rank hearsay or evidence of an unadjudicated extraneous
offense (such as a pending indictment or an arrest record).” Smith, 227
S.W.3d at 761.
Subsequently, the legislature amended article 37.07, section 3(d) of the
code of criminal procedure to permit the trial court to order and to consider a
PSI in determining the punishment to be assessed. See Tex. Code Crim. Proc.
Ann. art. 37.07, § 3(d) (Vernon Supp. 2008); Smith, 227 S.W.3d at 761–62
(citing Ellison v. State, 201 S.W.3d 714, 722 (Tex. Crim. App. 2006)). This
statutory authorization of use of a PSI to assess punishment conceptually
brought PSIs out of the unique for-use-in-a-determination-of-probation-only
category of quasi-evidence that they had arguably previously occupied to within
the realm of general punishment-phase evidence. See Smith, 227 S.W.3d at
761–63. Defendants consequently began asserting general evidentiary
7 objections to PSIs; but courts, recognizing the discreet statutory scheme and
purpose of PSIs, rejected all of these objections. See, e.g., id. at 763 (holding
that a trial court, as a sentencing entity, may consider extraneous misconduct
set forth in PSI over defendant’s objection that “the extraneous misconduct has
not been shown to have been committed by the defendant beyond a reasonable
doubt” as required by the code of criminal procedure); Fryer v. State, 68
S.W.3d 628, 630–32 (Tex. Crim. App. 2002) (holding that trial court, as
sentencing entity, may consider portion of PSI containing victim impact
statement over defendant’s objection that code of criminal procedure authorizes
consideration of victim impact statement only after punishment has been
assessed); Brooks v. State, 76 S.W.3d 426, 435 (Tex. App.—Houston [14th
Dist.] 2002, no pet.) (holding that trial court, as sentencing entity, may
consider extraneous misconduct set forth in PSI over defendant’s objection that
State did not give him timely notice of its intent to introduce such misconduct
as required by the code of criminal procedure).
That brings us to the objection asserted here: that the Adult Felony
History of Stringer’s PSI violated his Confrontation Clause rights.
C. All Negative Statements in PSI are “Testimonial”
Crawford v. Washington, while declining to explicitly define “testimonial,”
explained that
8 [the Confrontation Clause] applies to “witnesses” against the accused—in other words, those who “bear testimony.” “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” An accuser who makes a formal statement to government officers bears testimony . . . .
541 U.S. 36, 51, 124 S. Ct. 1354, 1364 (2004) (citations omitted). Cases
after Crawford have further developed the law concerning the types of out-of-
court statements that are testimonial. See, e.g., Davis v. Washington, 547
U.S. 813, 821–24, 126 S. Ct. 2266, 2273–74 (2006) (distinguishing
street-corner “nontestimonial” statements to law enforcement officers from
litigation-oriented “testimonial” statements and recognizing that police
interrogation statements relating to past events relevant to a criminal
prosecution are “testimonial statements” for purposes of the Confrontation
Clause, in part because of their adversarial nature and, in part, because the
reasonable declarant would recognize that the statements could be used in a
future criminal prosecution); W all v. State, 184 S.W.3d 730, 742–43 (Tex.
Crim. App. 2006) (explaining that “whether a statement is testimonial under
Crawford is determined by the standard of an objectively reasonable declarant
standing in the shoes of the actual declarant”); Brooks v. State, 132 S.W.3d
702, 707 (Tex. App.—Dallas 2004, pet. ref’d) (holding that when the police are
engaged in the competitive enterprise of detecting crime, investigating crime,
9 and gathering evidence for criminal prosecution, statements gathered during
their interrogations are testimonial “as a matter of law”); United States v.
Cromer, 389 F.3d 662, 675 (6th Cir. 2004) (stating that the decisive inquiry
under a Confrontation Clause objection to hearsay is “whether a reasonable
person in the declarant’s position would anticipate his statement being used
against the accused in investigating and prosecuting the crime”).
Virtually all statements in a PSI that reflect negatively on the defendant
will constitute “testimonial” statements for Confrontation Clause purposes.
They are gathered by a state employee, a supervision officer. Tex. Code Crim.
Proc. Ann. art. 42.12, § 9(a). They are for the express purpose of use in a
probation or sentencing determination concerning the defendant. Id. art. 37.07,
§ 3(d). They are not street-corner “nontestimonial” statements but instead are
statements that a reasonable declarant would recognize, or would have been
expressly told, were for use in a probation or sentencing decision concerning
the defendant. See, e.g., Davis, 547 U.S. at 821–24, 126 S. Ct. at 2273–74.
Conversely, statements in the PSI that the defendant deems positive to him
would be nontestimonial because the statement would not be “against” the
defendant. See Crawford, 541 U.S. at 51, 124 S. Ct. at 1364 (recognizing
that [the Confrontation Clause] applies to witnesses against the accused).
10 The State in the present case concedes that the statements and
information set forth in the Adult Felony History portion of Stringer’s PSI are
“testimonial” for purposes of a Confrontation Clause analysis.
D. Application of Law to Facts
We note at the outset that neither party offered Stringer’s PSI into
evidence. The code of criminal procedure does not require that the PSI be
introduced into evidence. See George E. Dix & Robert O. Dawson, 43 Texas
Practice–Criminal Practice and Procedure § 38.172. It simply provides that a
trial court may “inspect a report” or may “consider” a report. See Tex. Code
Crim. Proc. Ann. arts. 42.12, § 9(c) (inspect), 37.07, § 3(d) (consider). Thus,
technically no “evidence” or “testimony” was offered into evidence to which
Stringer could have lodged a Confrontation Clause objection. Indeed, as set
forth above, Stringer’s exact objection was to the Adult Felony History “being
considered,” not to the admission into evidence of the PSI or any portion of the
PSI. The Sixth Amendment and the rule enunciated in Crawford apply only to
attempts to admit testimony and evidence. See U.S. Const. amend. VI
(providing that “[i]n all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him”); Crawford, 541 U.S. at
51, 124 S. Ct. at 1364 (addressing admissibility of wife’s out-of-court, tape-
recorded statement to police). We question how a defendant’s Confrontation
11 Clause rights may be violated by statements in a document that is not admitted
into evidence.
Nonetheless, the record before us establishes that the trial court did in
fact consider the PSI. Nothing else exists in the record that could have been
considered in the trial court’s probation and sentencing decision. And Stringer
urged the trial court to consider the PSI, except for the Adult Felony History
portion. The failure of any party to actually offer the PSI into evidence is not
fatal. See Smith, 227 S.W.3d at 757 (addressing objection to PSI although it
was never offered into evidence); Amador v. State, 221 S.W.3d 666, 673–74
(Tex. Crim. App. 2007). The fact that the PSI was not offered or admitted into
evidence, and by statute was not required to be offered or admitted into
evidence, is however demonstrative of the difficulties in superimposing
Confrontation Clause objections on information required to be in a PSI.
To prohibit a judge from considering any portions of a PSI to which a
defendant asserts a Confrontation Clause objection would obliterate the
statutory PSI purposes and procedure. The statutory provisions require a
judge’s consideration of a defendant’s entire “criminal and social history”—i.e.,
the good and the bad aspects of the defendant’s criminal and social history.
See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a). But Confrontation Clause
objections to negative criminal and social history statements and information
12 in a PSI would limit a judge to considering only the positive statements on these
matters that are in a PSI. Thus, the fundamental and original purpose of a
PSI—to provide a judge contemplating probation for a defendant with accurate
information on factors relevant to a grant of probation—would be fatally
undermined. See, e.g., Walker v. State, 493 S.W.2d 239, 240 (Tex. Crim.
App. 1973) (explaining that “[i]t makes a great deal of sense that the judge
should have before him a thorough report of the accused’s past record and
background, when considering his motion for probation. The very purpose of
granting probation is to release a convicted defendant who shows himself
capable of adhering to certain conditions”). Otherwise, a judge would be left
with only un-Confrontation-Clause-objected-to information that was favorable
to the defendant in making the important decision of whether to grant
probation.
In other circumstances where the PSI statutory scheme has conflicted
with the rules of evidence or with other statutory provisions—although not a
constitutional right, as here—courts have implicitly recognized the unique status
of PSIs. See, e.g., Smith, 227 S.W.3d at 761–63 (stating that extraneous
offense in PSI need not be proved beyond a reasonable doubt); Fryer, 68
S.W.3d at 630–32 (reiterating that rules of evidence do not apply to contents
of PSI and holding that victim impact statement may be contained in PSI and
13 considered before sentencing); Brooks, 76 S.W.3d at 435 (stating that notice
of extraneous offense need not be given for information only in PSI). Thus, we
come to the question before us: whether a defendant who pleads guilty to a
felony, files a sworn application for probation and thereby triggers the statutory
necessity for a PSI, acquiesces in a recess for preparation of a PSI, and urges
a trial court to consider the PSI and to grant probation has forfeited any
Confrontation Clause objections to a required portion of the PSI—the
defendant’s criminal history. 4 In its second waiver argument, the State makes
this argument. The State points out that a defendant’s ability to assert
Confrontation Clause objections to particular portions of a PSI “will allow
defendants to manipulate the sentencing system. . . . A defendant should not
be able to pick and choose on confrontation grounds” which items in the PSI
are considered by the trial court. According to the State, the defendant may
either object to the entire report or may not object at all.
The State analogizes Stringer’s Confrontation Clause objection to the
Adult Criminal History portion of his PSI to a defendant who takes the stand
4 The trial court may also request that “other information relating to the defendant or the offense” be included in the PSI. See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a). The issue before us, however, is limited to forfeiture of a Confrontation Clause objection to information statutorily required to be contained in the PSI, here, criminal history.
14 and testifies at punishment but seeks to avoid cross-examination in whole or
part. The State quotes Mitchell v. United States:
The justifications for the rule of waiver in the testimonial context are evident: A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry. As noted in Rogers, a contrary rule “would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony.” It would, as we said in Brown, “make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.” The illogic of allowing a witness to offer only self-selected testimony should be obvious even to the witness, so there is no unfairness in allowing cross-examination when testimony is given without invoking the privilege.
526 U.S. 314, 322, 119 S. Ct. 1307, 1312 (1999) (citations omitted).
The State also points out that the statutory PSI scheme provides a
remedy if the defendant believes that the PSI contains factual inaccuracies.
See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(e). The remedy is that a
defendant, with the approval of the judge, may introduce testimony or other
information alleging a factual inaccuracy in the investigation or in the PSI. Id.
And, likewise, because the statute requires that a defendant receive a copy of
the PSI no later than forty-eight hours before sentencing, a defendant has ample
time to file a motion for continuance of the punishment hearing for the purpose
of issuing subpoenas for those persons named in the PSI whom he wishes to
15 cross-examine. See id. art. 42.12, § 9(d). Thus, the State argues that the
statutory scheme itself provides a remedy for defendants like Stringer.
The facts of this case do not fall squarely within the four corners of any
of the waiver cases, the invited error cases, or the acceptance of benefits
cases. But, the circumstances here seem analogous to aspects of each of
these three categories of cases. Stringer pleaded guilty to a felony, filed an
application for probation swearing that he had never before been convicted of
a felony in Texas, and thereby triggered the trial court’s mandatory statutory
duty to order a PSI. Id. art. 42.12, § 9(a); Griffith, 166 S.W.3d at 263. The
duty to direct the preparation of a PSI under these circumstances is mandatory,
subject to certain exceptions. See Tex. Code Crim. Proc. Ann. art. 42.12,
§ 9(a) (providing that “[e]xcept as provided by Subsection (g) . . . . before the
imposition of sentence by a judge in a felony case, . . . the judge shall direct a
supervision officer to report to the judge”) (emphasis added); cf. id. art. 37.07,
§ 3(d) (providing that “[w]hen the judge assesses the punishment, he may order
an investigative report”) (emphasis added). The trial court, in compliance with
the law, ordered a PSI; Stringer at least acquiesced in the recess of his
punishment hearing for purposes of preparation of the PSI. Also, the record
contains an order for psychological testing away from jail mandating a
psychosexual evaluation on Stringer as part of the PSI. When Stringer’s
16 punishment hearing convened, Stringer objected to the Adult Felony History of
the PSI on Confrontation Clause grounds and relied upon the remaining portions
of the PSI to urge the trial court to grant probation. Stringer forfeited or is
estopped from asserting his Confrontation Clause objection to the Adult
Criminal History portion of the PSI for three main reasons.
First, Stringer waived his right to assert a Confrontation Clause objection
to the Adult Criminal History portion of his PSI by filing an application for
probation swearing that he had never been convicted of a felony in Texas and
by relying upon the positive information in the PSI to urge the trial court to
grant probation. The language of the PSI statute requires the supervision
officer to report to the judge on the criminal history of the defendant. See id.
art. 42.12, § 9(a). By implication, the trial court is to consider the criminal
history of a defendant in making a probation decision. See, e.g., Smith, 227
S.W.3d at 761 n.21. By swearing that he had never been convicted of a felony
in Texas, Stringer put his criminal history at issue. See Anderson, 896 S.W.2d
at 580. By relying upon the positive portions of the PSI to urge the trial court
to grant probation, Stringer in effect elicited testimony of specific good conduct
in an attempt to show that he was suitable for probation. See id. A defendant
should not be able to seek probation, place his criminal history at issue via a
sworn pleading, rely on positive statements in the PSI and urge the trial court
17 to grant probation based on such information, yet nullify the statutory
requirement that the PSI include and that the trial court consider his criminal
history by asserting a Confrontation Clause objection. Accord Mitchell, 526
U.S. at 322–23, 119 S. Ct. at 1312 (recognizing defendant waives Fifth
Amendment privilege at punishment as to the matters he himself has put in
dispute by testifying). Otherwise, the result would be that a judge is prevented
from considering the very information in the PSI that the statute implies the
judge should consider in making a probation decision.
As the Supreme Court explained in Mitchell, “[t]he justifications for the
rule of waiver in the testimonial context are evident: A witness may not pick
and choose what aspects of a particular subject to discuss without casting
doubt on the trustworthiness of the statements and diminishing the integrity of
the factual inquiry.” Id. at 322, 119 S. Ct. at 1312. Although Mitchell dealt
with the waiver of a Fifth Amendment right against self-incrimination instead
of a Sixth Amendment right of confrontation and the Mitchell court dealt with
a defendant’s testimony instead of with a supervision officer’s “testimony” set
forth in a written report, the same analysis applies. A defendant may not use
portions of a witness’s testimony as a sword—here the supervision officer’s
presentence report—but then use a constitutional right as a shield to eliminate
portions of the same witness’s testimony that are unfavorable to the defendant.
18 For these reasons, by filing an application for probation swearing that he had
never been convicted of a felony and by urging the trial court to grant probation
based on the positive portions of the PSI, Stringer waived, or is estopped from
asserting, a Confrontation Clause objection to the Adult Criminal History portion
of his PSI.
Second, the facts reflect that Stringer accepted the benefits of the trial
court’s order requiring preparation of a PSI. A PSI was prepared, and Stringer
was not required to himself develop the evidence he would need for a full,
adversarial punishment hearing. This was a distinct benefit to him. He did not
need to subpoena witnesses or to gather evidence. Instead, he relied upon the
positive hearsay information in the PSI to urge the trial court to grant probation.
He specifically relied upon the result of the PSI’s ordered psychosexual testing,
arguing that “he show[ed] potentially positive responses to the treatment in
some respects.” Stringer’s acceptance of the benefits of the trial court’s order
requiring a PSI and of the PSI itself makes these circumstances akin to the
cases holding that “[o]ne who accepts the benefits of a . . . judicial order” may
not deny “the validity or propriety thereof, or of any part thereof, on any
grounds; nor can he reject its burdensome consequences.” See Rhodes, 240
S.W.3d at 891. By accepting the benefits of the order requiring a PSI, the
order requiring psychosexual testing as part of the PSI, and the results of the
19 PSI, Stringer is estopped from asserting his Confrontation Clause objections to
the Adult Criminal History portion of the PSI.
And finally, Stringer did not indicate that he believed the PSI contained
factual inaccuracies and did not move for a continuance. See Tex. Code Crim.
Proc. Ann. art. 42.12, § 9(d), (e). Stringer was entitled to comment on the PSI
and to introduce, with the approval of the judge, testimony or other information
alleging a factual inaccuracy in the PSI. See id., art. 42.12, § 9(e). By
accepting the benefits of the order requiring a PSI and the order requiring
psychosexual testing as part of the PSI, Stringer’s remedies concerning the
information in the PSI were statutorily limited to utilizing the statutory
procedure available to comment on the PSI or to correct a factual inaccuracy
in the PSI. Stringer is estopped from asserting a Confrontation Clause objection
to the Adult Criminal History portion of the PSI.
Our holding is limited to cases in which a defendant pleads guilty to a
felony, files an application for probation, and asserts a Confrontation Clause
objection to a statutorily required portion of the PSI. We need not address
whether the same analysis would apply to a Confrontation Clause objection
made to a PSI ordered under article 37.07, section 3(d). See Tex. Code Crim.
Proc. Ann. art. 37.07, § 3(d). We need not address whether the same analysis
would apply to a Confrontation Clause objection made to a nonstatutorily
20 required portion of the PSI. We need not address whether the same analysis
would apply to a Confrontation Clause objection to the entire PSI. We need not
address whether the Confrontation Clause applies at the punishment phase of
trial.5 And finally, we need not address—as the dissent implies—the
constitutionality of the PSI statute; no constitutional challenge to the statute
was raised in the trial court or on appeal. We simply hold, based on the facts
before us and for the reasons set forth above, that Stringer forfeited his
Confrontation Clause objection to the Adult Criminal History portion of his PSI.
We overrule Stringer’s sole issue.
5 Numerous federal courts, even after Crawford, have held that it does not. See, e.g., United States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005), cert. denied, 127 S. Ct. 129 (2006); United States v. Chau, 426 F.3d 1318, 1322–23 (11th Cir. 2005); United States v. Monteiro, 417 F.3d 208, 215 (1st Cir. 2005), cert. denied, 546 U.S. 1202 (2006); United States v. Roche, 415 F.3d 614, 618 (7th Cir.), cert. denied, 546 U.S. 1024 (2005); United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005); United States v. Fleck, 413 F.3d 883, 894 (8th Cir. 2005). The Texas Court of Criminal Appeals has not directly decided the issue.
21 IV. C ONCLUSION
Having overruled Stringer’s sole issue, we affirm the trial court’s
judgment.
SUE WALKER JUSTICE
PANEL: DAUPHINOT, HOLMAN, and WALKER, JJ.
DAUPHINOT, J. filed a dissenting opinion.
PUBLISH
DELIVERED: October 23, 2008
22 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
DISSENTING OPINION ON REMAND
The majority opinion correctly points out that the presentence
investigation report (PSI) statute is in direct conflict with the Constitution of the
United States.6 By statute, a PSI is an ex parte communication providing
hearsay evidence to the trial court, denying a defendant the right to confront
6 Majority op. at 12–13. witnesses against him in open court.7 As the majority provides, requiring the
trial court to comply with the Confrontation Clause before considering the PSI
would “obliterate the statutory PSI purposes and procedure.” 8
The PSI statute not only violates the Confrontation Clause; its ex parte
nature undermines our system of public trials. Nothing in our law prevents the
State’s offering a PSI into evidence through a sponsoring witness. Nothing
prevents the State’s offering a defendant’s criminal history through a
sponsoring witness. A jury assessing punishment does not require a PSI. A
jury hears witnesses and examines evidence in open court to determine the
appropriate sentence.
In a jury trial, a jury must be instructed that they may not consider
extraneous offenses or acts of misconduct unless they believe beyond a
reasonable doubt that the defendant committed those acts and offenses.9 The
State, then, bears a burden of proof beyond a reasonable doubt when it seeks
to prove extraneous offenses at the punishment phase of a jury trial. 1 0 The
7 See Tex. Code Crim. Proc. Ann. arts. 37.07, § 3(d), 42.12, § 9 (Vernon Supp. 2008). 8 Majority op. at 12. 9 Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). 10 See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2008).
24 State is not relieved of its burden of proof merely because the trial judge
assesses punishment.
Additionally, the protections of the Confrontation Clause apply to the
punishment phase of trial.11 In addressing reports admitted at the punishment
phase, the Texas Court of Criminal Appeals held in Russeau v. State,
The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This procedural guarantee is applicable in both federal and state prosecutions and bars the admission of testimonial statements of a witness who does not appear at trial unless he is unavailable to testify and the defendant had a prior opportunity to cross-examine him. Generally speaking, a statement is “testimonial” if it is a solemn declaration made for the purpose of establishing some fact.
The reports in question contained testimonial statements which were inadmissible under the Confrontation Clause, because the State did not show that the declarants were unavailable to testify and appellant never had an opportunity to cross-examine any of them. Indeed, the statements in the reports amounted to unsworn, ex parte affidavits of government employees and were the very type of evidence the Clause was intended to prohibit. The trial court erred in admitting those portions of the reports that contained the testimonial statements.12
Similarly, in the case now before this court, the statements in the PSI
were clearly testimonial. The State did not show that the declarants were
11 See Russeau v. State, 171 S.W .3d 871, 880–81 (Tex. Crim. App. 2005), cert. denied, 548 U.S. 926 (2006). 12 Id. (citations omitted).
25 unavailable to testify, and Appellant never had an opportunity to cross-examine
any of them. Appellant preserved his confrontation objection in the trial court.
The portion of the PSI accusing Appellant of extraneous acts of misconduct
was properly objected to, and the trial court should have sustained Appellant’s
objections.
The majority suggests that Appellant could have subpoenaed the
witnesses with personal knowledge of the hearsay contained in the PSI in order
to invoke his confrontation rights.13 In the context of article 38.071 of the
code of criminal procedure, which governs the admission of out of court
statements of a child complainant in certain circumstances, 14 the Texas Court
of Criminal Appeals has discussed this approach much more eloquently than I
can:
Due process does not lend itself to simple, concise definitions. In its most basic sense due process is the impediment that is constitutionally imposed on governmental conduct that offends our fundamental rights. Relative to the protection of one’s liberty: “[t]he essential guarantee of the due process clauses is that the government may not imprison or otherwise physically restrain a person except in accordance with fair procedures.” In other words, due process is in itself essentially the same as fairness. Or, at the very least, due process is the vehicle used to arrive at fairness thereby protecting our fundamental rights.
13 Majority op. at 15–16. 14 Tex. Code Crim. Proc. Ann. art. 38.071 (Vernon Supp. 2008).
26 Accordingly, “a fair trial in a fair tribunal is a basic requirement of due process.” If legislation alters the essential fairness of a trial then a due process violation is necessarily implicated. In Estelle v. Williams, it was specifically stated that “[t]he right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.” . . .
The opinion continues with guidelines for determining whether a particular procedure diminishes fairness and is thus violative of due process. The court commented:
But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close scrutiny . . . . Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.
Consequently, in a criminal prosecution, when viewing legislatively authorized procedures that could be detrimental to one’s fundamental rights, i.e., “a fair trial in a fair tribunal . . . ,” the legislation must be closely scrutinized. Such an examination must be “based on reason, principle, and common human experience.”
Scrutinizing Art. 38.071, § 2, and applying the predicates of consideration as suggested in Estelle v. Williams, it is evident that on its face Art. 38.071, § 2 imposes upon the defendant a constitutionally unacceptable burden. The courts of this state and country have never had to confront and review a trial procedure that requires the defendant to call as a witness his accuser if he wants to question the witness. Doing so places the defendant in the proverbial Catch-22: call the complainant and be able to question the witness; or alternatively, decline to do so and thereby waive the opportunity to cross-examine the witness. Either way the defendant is placed at a distinct and undue disadvantage. Conversely, the prosecution is placed in the unique and substantially advantageous position of being able to in essence
27 present its evidence, then wait for the defendant to call the complainant, thereby allowing the State to repeat the videotaped statement. Or, by not calling the witness fail to controvert the videotape statement. . . .
“[R]eason, principle, and common human experience” dictate that a jury will respond negatively to a defendant compelling a child witness to testify after they have already seen the videotape of the child’s allegations. The possible, if not probable, reaction of the jury to a trial incident of this nature would be unduly prejudicial to the defendant. Prejudice, to this extent, will create a risk that the entire proceedings were fundamentally unfair. A risk of this nature does not comport with the concept of due process.
In Lee v. Illinois, the Supreme Court was concerned with both due process and confrontation violations by an infringement upon the right of confrontation when a non-testifying co-defendant’s confession was admitted into evidence and considered as substantive evidence of the defendant’s guilt. Noting initially the historical unanimity of the court in its commitment to the defendant’s right of confrontation and cross-examination, the Court recognized the overlapping due process issue when it observed that the right of confrontation and cross-examination “ ‘is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.’ “
The Court continues and pertinently states:
On one level, the right to confront and cross-examine adverse witnesses contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails. To foster such a system, the Constitution provides certain safeguards to promote to the greatest possible degree society’s interest in having the accused and the accuser engage in an open and even contest in a public trial.
28 Under Art. 38.071 § 2, the essential state’s witness, the complainant, will be what due process and the confrontation clause endeavor to prevent: “unseen” and “unchallengeable” witnesses. Unless, of course the defendant takes the step of calling to testify the essential prosecution witnesses []. Nowhere and at no time in Anglo-American jurisprudence has an accused ever been required to call as a witness the accuser in order to enjoy the fundamental right of cross-examination. That is, until Art. 38.071 § 2. It is an illogical as well as unconstitutional scheme to place a defendant, who, again must be presumed innocent in the untenable position of either requiring the child to testify and thereby run the very real risk of incurring the wrath of the jury or forgo the right to invoke “‘the greatest legal engine ever invented for the discovery of truth.’“ 15
Even though Long discusses the right of confrontation at the guilt phase
of trial, Rousseau makes clear that the right of confrontation applies equally at
punishment, and therefore Long’s lessons also equally apply to the punishment
phase of Appellant’s trial for the offense of possessing child pornography. The
trial court as fact finder is, like a jury, also capable of an emotional reaction.
The majority also finds waiver, forfeiture, or estoppel.16 The majority has
established a new rule: when a defendant files an application for community
supervision, he waives or forfeits his right to assert a Confrontation Clause
objection to the PSI or is estopped from asserting it. That is, a defendant must
15 Long v. State, 742 S.W.2d 302, 320–21 (Tex. Crim. App. 1987) (citations omitted), 485 U.S. 993 (1988), overruled on other grounds, Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). 16 See majority op. at 16–20, 21.
29 trade his right to confrontation of witnesses against him for his right to apply
for community supervision. Nowhere in our jurisprudence is there any
suggestion that a person requesting community supervision must give up his
constitutional right to a fair trial. This is the very issue addressed in Carroll v.
State.17 Carroll had filed an application for community supervision. The trial
judge said that he would be hard pressed to give her probation if she did not
give up her right to remain silent by testifying in the punishment phase of the
bench trial. The Texas Court of Criminal Appeals held that Carroll’s “guilty plea
to the offense charged did not waive her right against self-incrimination as to
sentencing.” 18 The Texas Court of Criminal Appeals relied on the U.S. Supreme
Court’s holding in Mitchell v. United States that the right against self-
incrimination does not disappear with an adjudication of guilt because “[w]here
the sentence has not yet been imposed a defendant may have a legitimate fear
of adverse consequences from further testimony.” 19 Analogously, an
appellant’s right to confront witnesses against him does not disappear with an
application for community supervision because until sentence is imposed, he
17 Carroll v. State (Carroll V), 42 S.W.3d 129 (Tex. Crim. App. 2001). 18 Id. at 132. 19 526 U.S. 314, 326, 119 S. Ct. 1307, 1314 (1999).
30 too may have a legitimate fear of unfavorable information submitted for the fact
finder’s consideration.
The majority also found that Appellant waived or forfeited his right of
confrontation or was estopped from asserting it because he accepted the
benefits of the favorable portions of the PSI.20 A defendant is not required to
abandon his objections to inadmissible evidence because he does not object to
the admissible portions of the evidence. That is, a Confrontation Clause
objection lies only when the evidence is unfavorable, not when it is favorable.
The majority further holds that because Appellant accepted the benefits
of the order requiring a PSI and the order requiring psychosexual testing as part
of the PSI, he was estopped from asserting a Confrontation Clause objection
and limited to the statutory remedy of objecting to factual inaccuracies.
Essentially, the majority holds that the constitutional right to due process as
expressed in the Confrontation Clause must bow to the PSI statute.
To summarize the majority’s new rule: When a defendant in a criminal
case pleads guilty and applies for community supervision from the judge, he
gives up his constitutional due process rights to confront and cross-examine the
witnesses against him, his right to have the evidence against him presented
20 See majority op. at 19.
31 under oath, his right to challenge the admissibility of the evidence against him,
and his right to have the evidence against him presented in open court.
Essentially, the majority holds that when the PSI statute conflicts with the
Constitution, the statute prevails over the Constitution. I cannot agree.
The trial court erred by denying Appellant his constitutional rights to
confront and cross-examine witnesses accusing him of crimes. Additionally,
the State emphasized the extraneous acts of misconduct in its closing argument
to the trial court, harming Appellant. Because the majority holds that Appellant
forfeited his constitutional right to due process guarantees by applying for
community supervision, I must respectfully dissent.
LEE ANN DAUPHINOT JUSTICE