Stringer v. State

196 S.W.3d 249, 2006 Tex. App. LEXIS 3773, 2006 WL 1174233

• Court: Court of Appeals of Texas
• Decided: May 4, 2006
• Docket: 2-05-111-CR
• Status: Published

Opinions

MEMORANDUM OPINION¹

SUE WALKER, Justice.

Appellant Francis William Stringer pleaded guilty to the offense of possession of child pornography, and the trial court sentenced him to nine years’ confinement. In a single point, Stringer complains that the trial court erred by overruling his objection to the admission of testimonial portions of a pre-sentence investigation report admitted during the punishment phase of his trial. Before pleading guilty, Stringer signed a document entitled “Written Plea Admonishments,” which provides in relevant part:

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.

See TexCode CRiM. PROC. Ann. art. 26.13(d) (Vernon Supp.2005). Stringer did not waive the preparation of a pre-sentence investigation report.² Stringer’s counsel also signed the admonishments and acknowledged the following:

I have fully reviewed and explained to [Stringer] the above and foregoing Court Admonishments, rights, and waivers and the following Judicial Confession, and am satisfied that [Stringer] understands each, and is legally competent and has freely, intelligently, knowingly, and voluntarily waived his rights, has judicially confessed his guilt, and will plead guilty understanding the consequences thereof.

The court also signed the admonishments and found that Stringer was “mentally competent and that his plea [was] intelligently, freely, knowingly, and voluntarily entered.”

The Sixth Amendment right to confront and cross-examine witnesses may be waived. See Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1247, 16 L.Ed.2d 314 (1966); see also Tacon v. Arizona, 410 U.S. 351, 355, 93 S.Ct. 998, 1000, 35 L.Ed.2d 346 (1973) (Douglas, J., dissenting). There is a presumption against the waiver of constitutional rights; therefore, for a waiver to be effective, “it must be clearly established that there was ‘an intentional relinquishment or abandonment of a known right or privilege.’” Brookhart, 384 U.S. at 4, 86 S.Ct. at 1247 (quoting Johnson v. Zerhst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), overruled in part on other grounds by Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)); see also Tacón, 410 U.S. at 355, 93 S.Ct. at 1000-01 (Douglas, J., dissenting). “The determination of whether there has been an intelligent waiver ... must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Tacón, 410 U.S. at 355, 93 S.Ct. at 1000-01 (Douglas, J., dissenting) (quoting Johnson, 304 U.S. at 464, 58 S.Ct. at 1023). Furthermore, the United States Supreme Court has also held that “[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Id. at 355, 93 S.Ct. at 1001 (Douglas, J., dissenting) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970)).

As the State points out, we recently construed a waiver similar to the one signed by Stringer. See Rosalez v. State, 190 S.W.3d 770, 771 (Tex.App.-Fort Worth 2006, no pet.).³ In that case, Rosalez contended that the trial court violated his Sixth Amendment right to confrontation when it admitted portions of a pre-sen-tence investigation report during sentencing. Id. We held that Rosalez “knowingly, voluntarily, and intelligently waived his Sixth Amendment right to confront and cross-examine witnesses at the sentencing hearing.” Id. at 773.

The admonishments signed by Ro-salez were substantially similar to the admonishments signed by Stringer. Both admonishments stated that the defendants waived their rights to jury trials during both the guilt-innocence and punishment stages of trial, and both admonishments stated that the defendants waived their rights to confront and cross-examine witnesses. See id. at 771. Additionally, counsel for both defendants acknowledged that them clients understood their rights and that they knowingly and voluntarily waived them. See id. at 772-73. Lastly, the trial court here found that Stringer was mentally competent when he entered the plea and that he entered his plea “intelligently, freely, voluntarily, and knowingly,” and the trial court in Rosalez made substantially similar findings concerning Rosalez. See id. at 773. Stringer has not presented, nor does the record provide, any facts that would show that he did not knowingly and intelligently waive his rights to confrontation and cross-examination of witnesses. See Tacón, 410 U.S. at 355, 93 S.Ct. at 1001 (Douglas, J., dissenting); Rosalez, 190 S.W.3d at 773.

We hold that Stringer knowingly, voluntarily, and intelligently waived his Sixth Amendment right to confront and cross-examine witnesses at the sentencing hearing.⁴ See Rosalez, 190 S.W.3d at 773; see also Tacón, 410 U.S. at 355, 93 S.Ct. at 1001 (Douglas, J., dissenting). Therefore, the trial court did not err by admitting testimonial portions of the pre-sentence investigation report during the punishment phase of Stringer’s trial. Accordingly, we overrule Stringer’s sole point and affirm the trial court’s judgment.

DAUPHINOT, J. filed a dissenting opinion.

1 . See Tex.R.App. P. 47.4.

2 . The written admonishments included a waiver of the preparation of a pre-sentence investigation report. The trial court struck through the provision and initialed the change. In Stringer’s brief, he states that he agreed to an interview for the pre-sentence investigation report. During the interview, Stringer refused to answer any questions about a pending Dallas County charge for possession of child pornography. During the punishment phase of Stringer’s trial, he objected to four paragraphs of the pre-sentence investigation report that detailed this charge.

3 . We decided Rosalez after Stringer filed his brief in this appeal.

4 . Because we hold that Stringer waived any Sixth Amendment right to confrontation in the sentencing phase, we need not decide whether the statements in the pre-sentence investigation report are testimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). See Russeau v. State, 171 S.W.3d 871, 880-81 (Tex.Crim.App.2005) (holding that the trial court erred by admitting testimonial statements during the punishment phase of trial), petition for cert, filed, 74 U.S.L.W 3407 (U.S. Jan 3, 2006.).