IN THE TENTH COURT OF APPEALS
No. 10-18-00063-CR
MARSHALL O'BRYANT, Appellant v.
THE STATE OF TEXAS, Appellee
From the 278th District Court Walker County, Texas Trial Court No. 27627
MEMORANDUM OPINION
In two issues, appellant, Marshall E. O’Bryant, challenges the punishment
assessed in connection with his conviction for driving while intoxicated-3rd or more. See
TEX. PENAL CODE ANN. § 49.09(b) (West Supp. 2018). Specifically, O’Bryant contends that:
(1) the trial court erred by admitting evidence or prior criminal convictions through the
pre-sentence investigation report (“PSI”) and the testimony of a probation officer; and (2) the trial court’s assessment of costs included costs found unconstitutional. Because we
overrule both of O’Bryant’s issues on appeal, we affirm as modified.1
I. BACKGROUND
O’Bryant was charged by indictment with driving while intoxicated-3rd or more.
See id. The indictment referenced O’Bryant’s two prior DWI convictions on May 21, 1991,
in trial court cause number 91-726 and on June 25, 2003, in trial court cause number 03-
0255. These additional allegations addressed the jurisdictional element of the charged
offense. See id. The indictment also contained an enhancement paragraph that referenced
O’Bryant’s prior DWI convictions on January 26, 2006, in trial court cause number 22,589
and on September 4, 2009, in trial court cause number 24,361.
O’Bryant entered an open plea of guilty to the charged offense. In the guilty-plea
memorandum, O’Bryant initialed next to the admonishment informing him that if
convicted of the charged offense, the punishment range was a term of life or a term of not
more than ninety-nine years or less than twenty-five years. O’Bryant also initialed that
he had read the indictment; that he was aware of the consequences of his plea; and that
he agreed and confessed “that all the acts and allegations in said pleading [the
1 The judgment in this case reflects that the trial court entered its judgment of conviction on January 30, 2017; however, the record reflects that the judgment was filed in the Walker County District Clerk’s Office on January 30, 2018. Additionally, the Reporter’s Record reveals that the trial in this matter was conducted on January 30, 2018. We therefore have fair assurance that the judgment should reflect a date of conviction as January 30, 2018, not January 30, 2017. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (concluding that an appellate court has authority to reform a judgment to include an affirmative finding to make the record speak the truth when the matter has been called to its attention by any source). We modify the judgment to reflect as such.
O'Bryant v. State Page 2 indictment] are true and correct.” The trial court found that O’Bryant’s stipulation of
evidence substantiated his guilt, and this matter proceeded to trial on punishment.
This case was set for a punishment hearing on February 28, 2017; however, the
hearing was reset until January 30, 2018, because O’Bryant was once again arrested and
charged with DWI-3rd or more for an offense that occurred at approximately 3:00 a.m.
on February 28, 2017. Eventually, the hearing was conducted on January 30, 2018,
whereby Walker County Adult Probation Officer Sheila Hugo testified about O’Bryant,
findings contained in the PSI, and a pen packet that included certified judgments of
O’Bryant’s prior DWI convictions. The PSI and pen packet were admitted into evidence
over O’Bryant’s objections. O’Bryant also testified at the punishment hearing.
At the conclusion of the evidence, the trial court found the enhancement
paragraph contained in the indictment to be “true” and sentenced O’Bryant to twenty-
five years in the Institutional Division of the Texas Department of Criminal Justice. The
trial court also certified O’Bryant’s right of appeal, and this appeal followed.
II. ADMISSION OF EVIDENCE OF O’BRYANT’S PRIOR CRIMINAL CONVICTIONS
In his first issue, O’Bryant asserts that the trial court abused its discretion by
admitting evidence of prior criminal convictions through the PSI and Officer Hugo’s
testimony over his hearsay objections. We disagree.
We review a trial court’s admission or exclusion of evidence for an abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court
O'Bryant v. State Page 3 abuses its discretion if it acts arbitrarily or unreasonably, without reference to any
guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.
1990). When considering a trial court’s decision to admit or exclude evidence, we will
not reverse the trial court’s ruling unless it falls outside the “zone of reasonable
disagreement.” Id. at 391; see Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).
The Court of Criminal Appeals has held that the rules of evidence generally do not
apply to the contents of a PSI report. Fryer v. State, 68 S.W.3d 628, 631 (Tex. Crim. App.
2002); Champion v. State, 126 S.W.3d 686, 699 (Tex. App.—Amarillo 2004, pet. ref’d). This
exception also includes the rules pertaining to hearsay. Champion, 126 S.W.3d at 699
(citing Brown v. State, 478 S.W.2d 550, 551 (Tex. Crim. App. 1972) (holding that the PSI
statute authorizes the trial court to consider information in the PSI that is hearsay)); see
Smith v. State, 227 S.W.3d 753, 763 (Tex. Crim. App. 2007) (noting that article 37.07, section
3(d) authorizes the trial court to order a PSI and places no condition on the trial court in
considering the contents of the PSI (citing TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(d)
(West Supp. 2018))). To hold otherwise, would be “to deny the obvious purpose of the
statute.” Fryer, 68 S.W.3d at 631 (citing Brown, 478 S.W.2d at 551).
Because the rules of evidence generally do not apply to the contents of a PSI report,
and because the Court of Criminal Appeals has held that the trial court can consider
otherwise inadmissible hearsay contained in a PSI report, we cannot say that the trial
court abused its discretion by overruling O’Bryant’s hearsay objection and admitting the
O'Bryant v. State Page 4 PSI report. See Smith, 227 S.W.3d at 763; Fryer, 68 S.W.3d at 631; Brown, 478 S.W.2d at 551;
see also Champion, 126 S.W.3d at 699; Wilson v. State, 108 S.W.3d 328, 332 (Tex. App.—Fort
Worth 2003, pet. ref’d) (“In this case, the Texas Court of Criminal Appeals has given its
imprimatur to the trial court’s consideration of otherwise inadmissible hearsay. We are
therefore compelled to hold that the trial court did not err in admitting or considering the
hearsay statements contained in the PSI.”). Furthermore, because Officer Hugo’s
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IN THE TENTH COURT OF APPEALS
No. 10-18-00063-CR
MARSHALL O'BRYANT, Appellant v.
THE STATE OF TEXAS, Appellee
From the 278th District Court Walker County, Texas Trial Court No. 27627
MEMORANDUM OPINION
In two issues, appellant, Marshall E. O’Bryant, challenges the punishment
assessed in connection with his conviction for driving while intoxicated-3rd or more. See
TEX. PENAL CODE ANN. § 49.09(b) (West Supp. 2018). Specifically, O’Bryant contends that:
(1) the trial court erred by admitting evidence or prior criminal convictions through the
pre-sentence investigation report (“PSI”) and the testimony of a probation officer; and (2) the trial court’s assessment of costs included costs found unconstitutional. Because we
overrule both of O’Bryant’s issues on appeal, we affirm as modified.1
I. BACKGROUND
O’Bryant was charged by indictment with driving while intoxicated-3rd or more.
See id. The indictment referenced O’Bryant’s two prior DWI convictions on May 21, 1991,
in trial court cause number 91-726 and on June 25, 2003, in trial court cause number 03-
0255. These additional allegations addressed the jurisdictional element of the charged
offense. See id. The indictment also contained an enhancement paragraph that referenced
O’Bryant’s prior DWI convictions on January 26, 2006, in trial court cause number 22,589
and on September 4, 2009, in trial court cause number 24,361.
O’Bryant entered an open plea of guilty to the charged offense. In the guilty-plea
memorandum, O’Bryant initialed next to the admonishment informing him that if
convicted of the charged offense, the punishment range was a term of life or a term of not
more than ninety-nine years or less than twenty-five years. O’Bryant also initialed that
he had read the indictment; that he was aware of the consequences of his plea; and that
he agreed and confessed “that all the acts and allegations in said pleading [the
1 The judgment in this case reflects that the trial court entered its judgment of conviction on January 30, 2017; however, the record reflects that the judgment was filed in the Walker County District Clerk’s Office on January 30, 2018. Additionally, the Reporter’s Record reveals that the trial in this matter was conducted on January 30, 2018. We therefore have fair assurance that the judgment should reflect a date of conviction as January 30, 2018, not January 30, 2017. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (concluding that an appellate court has authority to reform a judgment to include an affirmative finding to make the record speak the truth when the matter has been called to its attention by any source). We modify the judgment to reflect as such.
O'Bryant v. State Page 2 indictment] are true and correct.” The trial court found that O’Bryant’s stipulation of
evidence substantiated his guilt, and this matter proceeded to trial on punishment.
This case was set for a punishment hearing on February 28, 2017; however, the
hearing was reset until January 30, 2018, because O’Bryant was once again arrested and
charged with DWI-3rd or more for an offense that occurred at approximately 3:00 a.m.
on February 28, 2017. Eventually, the hearing was conducted on January 30, 2018,
whereby Walker County Adult Probation Officer Sheila Hugo testified about O’Bryant,
findings contained in the PSI, and a pen packet that included certified judgments of
O’Bryant’s prior DWI convictions. The PSI and pen packet were admitted into evidence
over O’Bryant’s objections. O’Bryant also testified at the punishment hearing.
At the conclusion of the evidence, the trial court found the enhancement
paragraph contained in the indictment to be “true” and sentenced O’Bryant to twenty-
five years in the Institutional Division of the Texas Department of Criminal Justice. The
trial court also certified O’Bryant’s right of appeal, and this appeal followed.
II. ADMISSION OF EVIDENCE OF O’BRYANT’S PRIOR CRIMINAL CONVICTIONS
In his first issue, O’Bryant asserts that the trial court abused its discretion by
admitting evidence of prior criminal convictions through the PSI and Officer Hugo’s
testimony over his hearsay objections. We disagree.
We review a trial court’s admission or exclusion of evidence for an abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court
O'Bryant v. State Page 3 abuses its discretion if it acts arbitrarily or unreasonably, without reference to any
guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.
1990). When considering a trial court’s decision to admit or exclude evidence, we will
not reverse the trial court’s ruling unless it falls outside the “zone of reasonable
disagreement.” Id. at 391; see Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).
The Court of Criminal Appeals has held that the rules of evidence generally do not
apply to the contents of a PSI report. Fryer v. State, 68 S.W.3d 628, 631 (Tex. Crim. App.
2002); Champion v. State, 126 S.W.3d 686, 699 (Tex. App.—Amarillo 2004, pet. ref’d). This
exception also includes the rules pertaining to hearsay. Champion, 126 S.W.3d at 699
(citing Brown v. State, 478 S.W.2d 550, 551 (Tex. Crim. App. 1972) (holding that the PSI
statute authorizes the trial court to consider information in the PSI that is hearsay)); see
Smith v. State, 227 S.W.3d 753, 763 (Tex. Crim. App. 2007) (noting that article 37.07, section
3(d) authorizes the trial court to order a PSI and places no condition on the trial court in
considering the contents of the PSI (citing TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(d)
(West Supp. 2018))). To hold otherwise, would be “to deny the obvious purpose of the
statute.” Fryer, 68 S.W.3d at 631 (citing Brown, 478 S.W.2d at 551).
Because the rules of evidence generally do not apply to the contents of a PSI report,
and because the Court of Criminal Appeals has held that the trial court can consider
otherwise inadmissible hearsay contained in a PSI report, we cannot say that the trial
court abused its discretion by overruling O’Bryant’s hearsay objection and admitting the
O'Bryant v. State Page 4 PSI report. See Smith, 227 S.W.3d at 763; Fryer, 68 S.W.3d at 631; Brown, 478 S.W.2d at 551;
see also Champion, 126 S.W.3d at 699; Wilson v. State, 108 S.W.3d 328, 332 (Tex. App.—Fort
Worth 2003, pet. ref’d) (“In this case, the Texas Court of Criminal Appeals has given its
imprimatur to the trial court’s consideration of otherwise inadmissible hearsay. We are
therefore compelled to hold that the trial court did not err in admitting or considering the
hearsay statements contained in the PSI.”). Furthermore, because Officer Hugo’s
testimony regarding O’Bryant’s criminal history was limited to the contents of the
properly-admitted PSI report, we cannot say that the trial court abused its discretion by
overruling O’Bryant’s hearsay objection to Officer Hugo’s testimony. See Fryer, 68 S.W.3d
at 631; Brown, 478 S.W.2d at 551; see also Wilson, 108 S.W.3d at 330-31 (“This statute does
not require that the source of information contained in the PSI be identified or that the
persons providing this information be available for cross-examination. Nor does it
require that the officer who prepared the PSI be available to testify in court at the
punishment hearing.”). We overrule O’Bryant’s first issue.
III. THE TRIAL COURT’S ASSESSMENT OF COSTS
In his second issue, O’Bryant argues that the trial court’s assessment of costs
included unconstitutional costs. We disagree.
The imposition of court costs on a criminal defendant is a “nonpunitive
recoupment of the costs of judicial resources expended in connection with the trial of the
case.” Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). “[W]e review the
O'Bryant v. State Page 5 assessment of court costs on appeal to determine if there is a basis for the cost [assessed].”
Id. When a trial court erroneously assesses court costs in its judgment, the proper
appellate remedy is to reform the judgment to delete the improper fees. Cates v. State, 402
S.W.3d 250, 252 (Tex. Crim. App. 2013).
In a certified bill of costs, O’Bryant was assessed $133 in consolidated fees. In
reliance on Salinas v. State, 523 S.W.3d 103, 110 (Tex. Crim. App. 2017), in which the Court
of Criminal Appeals addressed the facial constitutionality of the consolidated fee
statute—section 133.102(a)(1) of the Local Government Code, O’Bryant claims that some
of the fees assessed against him were unconstitutional and should be deleted from the
judgment. See TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West Supp. 2018). Specifically,
section 133.102 requires any person convicted of a felony offense to pay $133.00 as part
of the “Consolidated Court Cost” fee. See id. In Salinas, the Court of Criminal Appeals
held that section 133.102 was facially unconstitutional to the extent the funds collected
were dispersed to accounts for “abused children’s counseling” and “comprehensive
rehabilitation.” 523 S.W.3d at 110. In support of its ruling, the Salinas Court stated,
[W]ith respect to the collection and allocation of funds for [abused children’s counseling and comprehensive rehabilitation], the statute is facially unconstitutional in violation of separation of powers. We also hold, however, that the invalidity of these two statutory provisions does not render the statute as a whole unconstitutional. As a result, we hold that any fee assessed pursuant to the consolidated fee statute must be reduced pro rata to eliminate the percentage of the fee associated with these two accounts.
Id. at 105. O'Bryant v. State Page 6 The Salinas decision issued in March 2017. In response, the Legislature amended
section 133.102(e) of the Local Government Code to remove the “abused children’s
counseling” and “comprehensive rehabilitation” accounts identified as unconstitutional
by the Salinas Court. See Act of May 18, 2017, 85th Leg., R.S., ch. 966, § 1, 2017 Tex. Gen.
Laws 3911, 3911 (codified at TEX. LOC. GOV’T CODE ANN. § 133.102(e)). In the amended
statute, the Legislature reallocated the percentages for the two accounts for the “fair
defense account.” Id. Under the current statute, “crime stoppers assistance” is now
subsection (e)(1), and “criminal justice planning” is subsection (e)(6). TEX. LOC. GOV’T
CODE ANN. § 133.102 (e)(1), (e)(6). The effective date of the amended version of section
133.102(e) was June 15, 2017.
In the instant case, O’Bryant’s court costs were imposed on January 30, 2018.
Consequently, the costs which Salinas ruled unconstitutional were not assessed against
O’Bryant. Accordingly, we overrule O’Bryant’s second issue.
IV. CONCLUSION
We affirm the judgment of the trial court as modified.
JOHN E. NEILL Justice
O'Bryant v. State Page 7 Before Chief Justice Gray, Justice Davis, and Justice Neill Affirmed as modified Opinion delivered and filed March 20, 2019 Do not publish [CRPM]
O'Bryant v. State Page 8