Storm, Melanie

• Court: Court of Appeals of Texas
• Decided: May 26, 2015
• Docket: PD-0621-15
• Status: Published

Opinion

PD-0621-15 PD-0621-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 5/26/2015 9:50:50 AM Accepted 5/26/2015 10:57:35 AM ABEL ACOSTA NO._________________ CLERK

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

MELANIE STORM Petitioner

v.

THE STATE OF TEXAS Respondent

Petition is in Cause No.1373849D from Criminal District Court No. One of Tarrant County, Texas, and Cause No. 02-14-00419-CR in the Court of Appeals for the Second District of Texas

PETITION FOR DISCRETIONARY REVIEW

Abe Factor TBN: 06768500 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Phone: (817) 222-3333 May 26, 2015 Fax: (817) 222-3330 Email: lawfactor@yahoo.com Attorney for Petitioner Melanie Storm IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties to the trial court’s final judgment, as well as the names and addresses of all trial and appellate counsel.

Trial Court Judge: Hon. Elizabeth

Petitioner: Melanie Storm

Petitioner’s Trial Counsel: Hon. Jack Duffy TBN: 06168950 Attorney at Law 6220 Midway Haltom City, Texas 76117

Petitioner’s Counsel Hon. Abe Factor on Appeal: TBN: 06768500 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117 Phone: (817) 222-3333

Appellee: The State of Texas

Appellee’s Trial Counsel: Hon. Sam Williams TBN: 24034742 District Attorney’s Office 401 W. Belknap Fort Worth, Texas 76196

Appellee’s Counsel Hon. Charles Mallin on Appeal: TBN: 12867400 Hon. Helena Faulkner TBN: 06855600 District Attorney’s Office 401 W. Belknap Street Fort Worth, Texas 76196

ii TABLE OF CONTENTS page

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v

STATEMENT REGARDING ORAL ARGUMENT.. . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF PROCEDURAL HISTORY. . . .. . . . . . . . . . . . . . . . . .1

GROUNDS FOR REVIEW. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

REASONS FOR REVIEW. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

I. Ms. Storm’s right to confront the witnesses against her was violated when the trial court considered the PSI at punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. Preservation of Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

D. Confrontation Clause Principles. . . . . . . . . . . . . . . . . . . . . . . 5

E. Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

F. Harm Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

iii CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iv INDEX OF AUTHORITIES

Cases page

Black v. State, 816 S.W.2d 350 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . 3

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). . . . . . . 4, 5, 9

Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). . . . . . .6-7, 9

Davis v. State, 203 S.W.3d 845 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . 10

De La Paz v. State, 273 S.W.3d 671 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . 5, 6

Ex parte Casarez, 508 S.W.2d 620 (Tex. Crim. App. 1974). . . . . . . . . . . . . . . . . . . . . 4

Ex Parte Hathorn, 296 S.W.3d 570 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . 3

Huizar v. State, 12 S.W.3d 479 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . 7

Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . 6

McNac v. State, 215 S.W.3d 420 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . 9

Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). . . . . . . . . . . . 5

Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . 8

v Smith v. State, 227 S.W.3d 753 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . 2, 4, 5

Storm v. State, 02-14-00419-CR, 2015 WL 1868864 (Tex. App.– Fort Worth, April 23, 2015, no. pet. h.) (mem. op., not designated for publication). . . . 1, 3

Stringer v. State, 309 S.W.3d 42 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . 2, 4, 5

Ex parte Turner, 542 S.W.2d 187 (Tex. Crim. App. 1976). . . . . . . . . . . . . . . . . . . . . 4

Wall v. State, 184 S.W.3d 730 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . .9-10

Whorton v. Bockting, 549 U.S. 406, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007). . . . . . . . . . . . 6

Constitutions

U.S. C ONST. amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9

Statutes

T EX. C RIM. P ROC. C ODE A NN. §37.07(3)(a) (West Supp. 2014). . . . . . .7 -8

T EX. C RIM. P ROC. C ODE A NN. § 37.07(3)(d) (West Supp. 2014). . . . . 6, 7

T EX. C RIM. P ROC. C ODE A NN. § 42.12(9)(a) (West Supp. 2014). . . . . 6, 7

T EX. P ENAL C ODE A NN. § 31.03(f)(4) (West Supp. 2014). . . . . . . . . . . . .1

Court Rules

T EX. R. A PP. P. 44.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

vi STATEMENT REGARDING ORAL ARGUMENT

Because Petitioner does not believe that oral argument will

materially assist the Court in its evaluation of matters raised by this

pleading, Petitioner respectfully waives oral argument.

STATEMENT OF THE CASE

On July 23, 2014, Melanie Storm (“Ms. Storm” or “Appellant”)

was charged by indictment with theft under $1500 with two prior theft

convictions. (C.R. 5); See T EX. P ENAL C ODE A NN. § 31.03(f)(4) (West

Supp. 2014). On August 8,2014,Ms.Storm entered an open plea of guilty

to the charged offense. (C.R. 22; II R.R. 5). The trial court continued the

proceedings pending the preparation of a Presentence Investigation

Report (“PSI”), until September 29, 2014. (II R.R. 5; III R.R. St. Ex. 1). On

that date, the trial court sentenced Ms. Storm to one (1) year

incarceration in state jail. (C.R. 24; II R.R. 21). A Timely Notice of

Appeal was filed on October 7, 2014. (C.R. 30). This appeal ensued.

STATEMENT OF PROCEDURAL HISTORY

The opinion by the Second Court of Appeals affirming Ms.

Storm’s conviction was handed down on April 23, 2015. See Storm v.

State, 02-14-00419-CR, 2015 WL 1868864 (Tex. App.–Fort Worth, April

23, 2015, no. pet. h.) (mem. op., not designated for publication). This

1 timely Petition for Discretionary review ensued.

GROUNDS FOR REVIEW

GROUND FOR REVIEW ONE

I. Ms. Storm’s right to confront the witnesses against her was violated when the trial court considered the PSI at punishment.

REASONS FOR REVIEW

1. The decision by the Second Court of Appeals has decided an

important question of state law in a way that comports with the

applicable decisions of the Court of Criminal Appeals, but this Court

is invited revisit and overrule or modify those decisions.

ARGUMENT

GROUND FOR REVIEW ONE (Restated)

I. Ms. Storm’s right to confront the witnesses against her was violated when the trial court considered the PSI at punishment.1

A. Facts

At the punishment hearing held on September 29, 2014, the trial

Undersigned counsel is aware that this Court has directly held adverse to Appellant’s argument on this point. See Stringer v. State, 309 S.W.3d 42 (Tex. Crim. App. 2010); Smith v. State, 227 S.W.3d 753 (Tex. Crim. App. 2007). The argument for a change or reversal in the law is presented here for further review.

2 court admitted into evidence the PSI prepared by the Tarrant County

Community Supervision and Corrections Department. (II R.R. 5; III

R.R. St. Ex. 1). Additionally, the trial court stated on the record that it

was taking judicial notice of its contents. (II R.R. 6). At no time did trial

counsel for Ms. Storm raise an objection to the matters included in the

PSI. Based on the evidence set forth in the PSI, the trial court denied

Ms. Storm’s request for probation and sentenced her to one (1) year

incarceration. (II R.R. 19, 21).

B. Opinion Below

The Opinion of the Second Court of Appeals failed to address

Ms. Storm’s substantive complaint, but merely held that her complaint

had not been preserved in the trial court. See Storm, 2015 WL 1868864

at *3 (citing Ex Parte Hathorn, 296 S.W.3d 570, 572 (Tex. Crim. App.

2009).

C. Preservation of Error

The Court of Criminal Appeals has held that under

circumstances where the law is well-settled to the point where any

objection in the trial court would be futile, the claim will not be

considered forfeited for later review. See Hathorn, 296 S.W.3d at 572

(citing Black v. State, 816 S.W.2d 350 (Tex. Crim. App. 1991) (“Given the

3 settled state of the case law at the time of appellant’s trial, we refuse to

fault him or his attorney for failing to object. . . .Under the established

precedent, the trial judge would have been correct in overruling the

objection. . . .”); See also Ex parte Turner, 542 S.W.2d 187, 189 (Tex. Crim.

App. 1976) (“[I]t would be unreasonable to expect the petitioner to

anticipate the future decision of the United States Supreme Court,”

[and held that there was no intentional waiver for failing] “to object

upon a ground not yet established as a defect of constitutional

magnitude.” (citing Ex parte Casarez, 508 S.W.2d 620 (Tex. Crim. App.

1974)).

In Smith v. State, 227 S.W.3d 753 (Tex. Crim. App. 2007), and later

in Stringer v. State, 309 S.W.3d 42 (Tex. Crim. App. 2010), the Court of

Criminal Appeals explicitly held that extraneous misconduct evidence

could be considered at punishment if included in a PSI even where it

was not shown beyond a reasonable doubt that the defendant had

committed the misconduct, Smith, 227 S.W.3d at 763, and the

Confrontation Clause protections articulated in Crawford v. Washington 2

do not apply at a non-capital sentencing to a PSI used by the judge in

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

4 determining the punishment. Stringer, 309 S.W.3d at 48. Thus, any

objection at trial would necessarily been overruled by the trial court.

Id.; Smith, 227 S.W.3d at 763.

D. Confrontation Clause Principles

The Confrontation Clause of the Sixth Amendment to the United

States Constitution provides that, “[i]n all criminal prosecutions, the

accused shall enjoy the right. . .to be confronted with the witnesses

against him.” U.S. C ONST. amend. VI. This procedural guarantee

applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S.

400, 403, 85 S.Ct. 1065, 1067–68, 13 L.Ed.2d 923 (1965); De La Paz v. State,

273 S.W.3d 671, 680 (Tex. Crim. App. 2008). Consistent with the

Confrontation Clause guarantee, a testimonial hearsay statement may

be admitted in evidence against a defendant “only where the declarant

is unavailable, and only where the defendant has had a prior

opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 68,

124 S.Ct. 1354, 1373–74, 158 L.Ed.2d 177 (2004); see De La Paz, 273

S.W.3d at 680. “[T]he Crawford rule reflects the Framers’ preferred

mechanism (cross-examination)for ensuring that inaccurate

out-of-court testimonial statements are not used to convict an accused.”

5 Whorton v. Bockting, 549 U.S. 406, 418, 127 S.Ct. 1173, 1182, 167 L.Ed.2d

1 (2007); De La Paz, 273 S.W.3d at 680. “Generally, speaking, a hearsay

statement is ‘testimonial’ when the surrounding circumstances

objectively indicate that the primary purpose of the interview or

interrogation is to establish or prove past events potentially relevant to

later criminal prosecution.” De La Paz, 273 S.W.3d at 680. Whether a

statement is testimonial is a question of law. Id.; see Langham v. State,

305 S.W.3d 568, 576 (Tex. Crim. App. 2010).

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. T EX. C RIM. P ROC. C ODE A NN. § 42.12(9)(a) (West Supp. 2014).

They are for the express purpose of use in a probation or sentencing

determination concerning the defendant. T EX. C RIM. P ROC. C ODE A NN.

§ 37.07(3)(d) (West Supp. 2014). 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 v. Washington, 547 U.S. 813, 821–24, 126 S.Ct.

6 2266, 2273–74, 165 L.Ed.2d 224 (2006).

By statute, a PSI is an ex parte communication providing hearsay

evidence to the trial court, denying a defendant the right to confront

witnesses against him in open court. See T EX. C RIM. P ROC. C ODE A NN §§

37.07(3)(d), 42.12(9). 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. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App.

2000).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. See T EX. C RIM. P ROC. C ODE A NN. §37.07(3)(a) (West

7 Supp. 2014). The State should not be 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. See Russeau v. State, 171 S.W.3d 871,

880–81 (Tex. Crim. App. 2005). 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.

Id.

8 E. Application

Here, though no witnesses testified at punishment, the PSI

compiled by the probation officer was admitted into evidence. (III R.R.

St. Ex. 1). The information included in the PSI is clearly testimonial, in

that much of it is composed of out-of court statements meant to be used

against Ms. Storm at her trial on punishment. See Davis v.Washington,

547 U.S. at 821–24,126 S.Ct.at2273–74. Much of the information is

detrimental to Ms. Storm. (III R.R. St. Ex. 1). The admission of such

testimonial statements violates the Sixth Amendment right possessed

by all criminal defendants to confront the witnesses against them. U.S.

C ONST. amend. VI; Crawford v. Washington, 541 U.S. at 68,124 S.Ct. at

1373–74.The trial court erred by admitting the PSI in violation of the

Sixth Amendment.

F. Harm Analysis

Crawford error is constitutional error subject to a harm analysis

under Rule 44.2(a) of the Texas Rules of Appellate Procedure. T EX. R.

A PP. P. 44.2(a); McNac v. State, 215 S.W.3d 420, 421 (Tex. Crim. App.

2007). Ms. Storm’s sentence must be reversed unless it can be found

beyond a reasonable doubt that the error did not contribute to her

punishment. Wall v. State, 184 S.W.3d 730, 745-46 (Tex. Crim. App.

9 2006). The Court of Criminal Appeals has established four factors to be

considered in analyzing harm from Crawford error: (1) the importance

of the hearsay statements to the State’s case; (2) whether the hearsay

evidence was cumulative of other evidence; (3) the presence or absence

of evidence corroborating or contradicting the hearsay testimony on

material points; (4) the overall strength of the State’s case. Davis v. State,

203 S.W.3d 845, 852 (Tex. Crim. App. 2006).

The only evidence presented by the state at punishment was the

PSI. The trialcourt ultimately denied Ms. Storm’s request for probation

and sentenced her to prison. Moreover, the State emphasized the

extraneous acts of misconduct presented in the PSI in its closing

argument to the trial court. (II R.R. 20-21).

It is impossible to conclude that the error did not contribute to

the conviction or punishment; thus, Ms. Storm was harmed by its

admission, and the judgment of the trial court should be reversed. See

T EX. R. A PP. P. 44.2(a).

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully

prays that this Court grant discretionary review and allow each party

to fully brief and argue the issues before the Court of Criminal

10 Appeals, and that upon reviewing the judgment entered below, that

this Court reverse the opinion of the Second Court of Appeals.

Respectfully submitted,

/s/Abe Factor Abe Factor TBN: 06768500 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117 Phone: (817) 222-3333 Fax: (817) 222-3330 Email: lawfactor@yahoo.com Attorneys for Petitioner Melanie Storm

CERTIFICATE OF COMPLIANCE

I hereby certify that the word count for the portion of this filing covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is 2,799.

/s/Abe Factor Abe Factor

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been furnished to counsel for the State’s Prosecuting Attorney and the Tarrant County District Attorney by a manner compliant with the Texas Rules of Appellate Procedure, on this 26th day of May, 2015.

11 APPENDIX

1. Opinion of the Second Court of Appeals

12 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00419-CR

MELANIE STORM APPELLANT

THE STATE OF TEXAS STATE

----------

FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY TRIAL COURT NO. 1373849D

MEMORANDUM OPINION1

Appellant Melanie Storm entered an open plea of guilty to theft of property

under $1,500 with two prior convictions. At the sentencing hearing that

eventually followed, the trial court admitted a presentence investigation report

(PSI), found Storm guilty, and sentenced her to one year’s confinement in state

jail. In a single point, Storm argues that her Sixth Amendment right to

1 See Tex. R. App. P. 47.4. confrontation was violated when the trial court admitted the PSI at the sentencing

hearing.

To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Everitt v. State, 407 S.W.3d

259, 262–63 (Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302, 306

(Tex. App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have ruled

on the request, objection, or motion, either expressly or implicitly, or the

complaining party must have objected to the trial court’s refusal to rule. Tex. R.

App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 263. Numerous constitutional rights,

including the right to confrontation, may be forfeited for purposes of appellate

review unless they are properly preserved. Broxton v. State, 909 S.W.2d 912,

918 (Tex. Crim. App. 1995); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim.

App. 1990); Deener v. State, 214 S.W.3d 522, 527 (Tex. App.—Dallas 2006, pet.

ref’d).

Here, Storm did not assert any objection, including on confrontation

grounds, when the State offered the PSI. In fact, Storm affirmatively stated, “No

objection.” Pointing out that the court of criminal appeals has held contrary to her

issue on the merits and that an objection to the PSI on confrontation grounds

“would necessarily [have] been overruled by the trial court,” Storm contends that

she did not have to object to the PSI on confrontation grounds because when

2 “the law is well-settled to the point where any objection in the trial court would be

futile, the claim will not be considered forfeited for later review.” This is only part

of the exception. The preservation exception may apply when the relief sought

by the appellant becomes available after trial and the appellant, therefore, could

not have been expected to preserve error by objecting at trial. See, e.g.,

Ex parte Hathorn, 296 S.W.3d 570, 572 (Tex. Crim. App. 2009). As the State

observes, however, Storm “does not seek to avail herself of a right based on a

favorable change in the law that occurred after her sentencing hearing; instead,

she seeks to change existing case law.” The preservation exception that Storm

relies upon is clearly inapplicable under the circumstances. Accordingly, Storm

forfeited this point for appellate review. We overrule her sole point and affirm the

trial court’s judgment.

/s/ Bill Meier

BILL MEIER JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: April 23, 2015