Kataya Tamara Kitzman v. State

• Court: Court of Appeals of Texas
• Decided: May 31, 2007
• Docket: 14-06-01129-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 31, 2007

Affirmed and Memorandum Opinion filed May 31, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-01129-CR

KATAYA TAMARA KITZMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183^rd District Court

Harris County, Texas

Trial Court Cause No. 1052074

M E M O R A N D U M    O P I N I O N

Appellant Kataya Tamara Kitzman pleaded guilty to murder and was sentenced to thirty-five years= confinement in the Texas Department of Criminal Justice, Institutional Division.  She appeals her sentence on the ground that the trial court improperly considered victim impact letters that were included in her pre-sentence investigation report.  The State responds that appellant waived error by failing to specifically object.  We agree and affirm the judgment.

I.  Factual and Procedural Background

Appellant Kataya Tamara Kitzman pleaded guilty to the January 1, 2006 murder of Mark Eppely, and the trial court ordered the preparation of a pre-sentence investigation report (APSI@).  The PSI included a section labeled ALETTERS SUBMITTED ON BEHALF OF THE VICTIM.@  This section of the PSI contained letters by the victim=s mother, father, ex-wife, five-year-old son, sister, cousin, and three aunts.  It also contained an email from the victim=s mother to the pre-sentence investigator. 

At the pre-sentence investigation hearing, appellant objected as follows:

Particularly, your Honor, letters submitted on behalf of the victim.  Under theCour punishment scheme with respect to victim impact.  Those are usually given in trial or in the punishment phase of any hearing by first degree family members such as the parent or child as it relates to the impact of the crime on that individual or family members.  In this report, it=s the first I=ve ever seen where there are more distant family members.  There are letters addressed to the decedent himself.  All of that is improper victim impact.  There=s no way we could ever recover from that kind of blind side because it=s literally weighing the value of the decedent against the person who killed them [sic]. And that=s just wholly improper under any punishment scheme and I know the Court has read that and I=m trying to ask you, if you can, unring the bell on the improper victim impact statements that you did review.  And at this point I=m objecting to that being admitted into the record and I=m asking the Court if the Court can set that aside and make her ruling based on the law regarding what is admissible victim impact statements.

The trial court responded, AAnd the answer would be, yes, and your request will be denied.@  Appellant was sentenced, and this appeal ensued.

II.  Issue Presented

In a single issue, appellant contends that the trial court considered improper victim impact statements contained in the PSI.

III.  Analysis

To present a claim for appellate review, it is a prerequisite that a complaint stating the specific grounds for the objection be made in the trial court.  Tex. R. App. P. 33.1(a).  The trial court is not required to sort through challenged evidence to segregate the admissible from the inadmissible.  Ross v. State, 154 S.W.3d 804, 813 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d).  Here, the PSI contained nine Aletters on behalf of the victim@ and appellant does not dispute that some of the letters are admissible.  Thus, appellant was required to specifically identify the material deemed objectionable.  Brown v. State, 692 S.W.2d 497, 501 (Tex. Crim. App. 1985) (en banc) (holding that the appellant failed to preserve error regarding a Apen packet@ offered into evidence during the punishment phase of trial when appellant=s attorney stated, AWe object to each and every reference in the exhibit to probation and ask the court to strike the same out.@).  Because appellant=s objection fails to identify the challenged letters, the objection has not been preserved.

Moreover, had error been preserved, the trial court nevertheless properly overruled appellant=s objection.  Article 42.12, section 9 of the Code of Criminal Procedure provides that, before imposition of sentence by a judge in a felony case, the judge shall direct an officer to prepare a PSI on the circumstances of the offense charged, the amount of restitution necessary to compensate a victim, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge.^[1]  Tex. Code Crim. Proc. Ann. art. 42.12(9) (Vernon Supp. 2006)  The statute is broadly worded and allows inclusion of any information relating to the defendant or the offense.  Fryer v. State, 68 S.W.3d 628, 629 (Tex. Crim. App. 2002).  Article 37.07, section 3(d) of the Code of Criminal Procedure allows the trial court to consider the report at the sentencing phase of trial.  Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(d) (Vernon 2006). 

In contrast, written victim impact statements, including statements by close relatives of a deceased victim, are governed by article 56.03 of the Code of Criminal Procedure.  Id. art. 56.03.  In addition, article 42.03 ' 1(b) requires the trial court to permit a close relative of a deceased victim to present a live, post-sentencing statement of Athe person=s views about the offense, the defendant, and the effect of the offense on the victim.@  But as the Court of Criminal Appeals has explicitly stated, Aneither of these statutes purports to restrict the information contained in a PSI; in fact they have nothing to do with a PSI.@  Fryer, 68 S.W.3d at 632.  Thus, the PSI=s inclusion of letters from more distant relatives and letters directly addressing the deceased victim is not objectionable solely on the ground that the statements do not conform to the requirements of statutes governing victim impact statements.^[2]

We overrule appellant=s sole issue and affirm the judgment of the trial court.

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed May 31, 2007.

Panel consists of Justices Hudson, Guzman, and Price*

Do Not Publish C Tex. R. App. P. 47

*  Former Justice Frank C. Price sitting by assignment.

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^[1]  Although appellant also contends that the trial court did not request Aany other information relating to the defendant or the offense,@ the trial court=s request for a PSI is not in the record.  Thus, there is no basis on which we can conclude that the letters exceeded the trial court=s request.

^[2]  Appellant points to nothing in the record indicating that the trial court relied on any particular correspondence in the PSI in reaching its sentencing decision.  In light of the trial court=s response to the objection, it is not clear that this material was even considered.