COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00334-CR
NO. 02-10-00335-CR
OSWALDO JAVIER REYES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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I. INTRODUCTION
Appellant Oswaldo Javier Reyes appeals his sentences of fifty years’
incarceration and twenty years’ incarceration that the trial court imposed after he
pleaded guilty to two separate counts of aggravated assault with a deadly
weapon against a family member. We will affirm.
II. BACKGROUND
Reyes and his wife, Jesika, separated after Christmas 2008. After
separating, Reyes moved in with his parents. Reyes sent Jesika a text message
on January 18, 2009. In the message, Reyes informed Jesika that a friend of his
was interested in buying some of their old furniture. Jesika agreed to meet at the
couple’s former apartment that night so that the friend could look at the furniture.
But when Jesika arrived at the apartment, Reyes pulled a gun from his pocket
and directed Jesika to the bedroom.
Later, Reyes’s mother and father came to the apartment. When his
parents arrived, Reyes took their keys and phones and directed them to the
bedroom as well. After several hours of pleading with Reyes, Reyes’s father
ultimately convinced him to go back home with him. As they left the bedroom,
Reyes’s mother asked for some water. Jesika went to the kitchen and retrieved
a bottle of water. On her way back from the kitchen, Reyes fired two shots at
Jesika—one hit her leg and the other her side. Jesika fled the apartment and
sought help from a neighbor. Jesika survived the shooting.
The State indicted Reyes with two counts of aggravated assault with a
deadly weapon against a family member—one count for shooting Jesika and the
other for threatening his father with a deadly weapon. Reyes, through his trial
counsel, notified the State and the trial court that he would be proceeding with an
open plea whereby Reyes would enter a plea of guilty to each of the indictments
but elect to have the trial court assess punishment. The trial court notified
2
Reyes’s trial counsel that his pleas of guilty would be accepted and that a
punishment hearing would be held on May 28, 2010.
A probation officer went to the jail where Reyes was being held on May 27,
2010, and conducted a presentence investigation (PSI) interview. According to
an affidavit written by Reyes’s trial counsel and introduced during a hearing held
on Reyes’s motion for new trial, trial counsel was not informed that this interview
was going to take place. On May 28, 2010, Reyes signed judicial confessions
and pleaded guilty. The punishment hearing then commenced, and Reyes and
the State were provided copies of the PSI report, which was predicated on the
probation officer’s interview.
At the punishment hearing, Reyes took the stand and testified on his own
behalf. When the State asked Reyes whether he intended to kill Jesika when he
shot her, he answered, ―No.‖ The State then used contents from the PSI report
to impeach Reyes’s testimony, and Reyes admitted that he had told the
probation officer that he did intend to kill Jesika. Reyes did not object to the PSI
report at this time or at any time during the punishment hearing. At the
conclusion of the punishment phase, the trial court sentenced Reyes to fifty
years’ confinement for the assault on Jesika and twenty years’ confinement for
the assault against his father.
On June 28, 2010, Reyes’s appellate counsel filed a motion for new trial,
where for the first time Reyes alleged that the PSI interview was a critical stage
in the State’s cases against him and that the interview was conducted in violation
3
of his Sixth Amendment right to have counsel. The trial court conducted a
hearing on the motion for new trial and denied Reyes’s motion. This appeal
followed.
III. DISCUSSION
In two points, Reyes argues that his Sixth Amendment right to counsel; his
Texas constitution article I, section 10 right to counsel; his Fifth Amendment right
against self-incrimination; his Texas constitution article I, section 10 right against
self-incrimination; and several statutory rights to counsel were violated when the
probation officer interviewed him for the PSI without the benefit of his counsel
being present and without informing him of Miranda and Texas Code of Criminal
Procedure article 38.22 warnings.1 Reyes asks this court to remand for a new
trial on punishment.2
1
Although in his brief Reyes states that the statutes designed to implement
his right to counsel ―may‖ provide ―a statutory right to counsel beyond what is
mandated by‖ federal and this State’s constitutions, he does not provide an
argument or cite any binding authority for this position. Furthermore, Reyes
never argues that the Texas constitutional rights he cites provide greater
protection than their federal counterparts. We therefore will address the Fifth and
Sixth Amendment arguments that Reyes brings as including the Texas
constitution and statutory rights he addresses in his brief.
2
Reyes’s prayer for relief is peculiar. If this court were to hold that the
resolution of this case required a new punishment hearing only, then, once
remanded, the trial court would still possess the statutory authority to order a new
PSI. See Tex. Code Crim. Proc. Ann. art. 42.12 § 9(a) (West Supp. 2011). The
dissent takes issue with our position that Reyes’s prayer is peculiar, but it seems
that if this court were to hold that Reyes’s case should be remanded, the more
logical relief would be to request that this court remand back to the time of the
infraction prior to Reyes’s formal entry of guilt. Furthermore, and in a concession
contrary to his position, even Reyes admits in his brief that there is authority that
4
Citing unpublished cases that stand for the proposition that the failure to
object to a trial court’s consideration of a PSI report at punishment forfeits any
potential error for appellate review, the State argues that Reyes has failed to
preserve these issues for our review. See Fisher v. State, No. 02-04-00434-CR,
2005 WL 994740, at *1 (Tex. App.—Fort Worth Apr. 28, 2005, no pet.) (mem op.,
not designated for publication) (holding that by failing to object to trial court’s
consideration of PSI report, defendant forfeited his contention that statements
contained in report violated the Confrontation Clause of the Sixth Amendment);
see also Zamudio v. State, No. 14-02-00283-CR, 2003 WL 297737, at *1 (Tex.
App.—Houston [14th Dist.] Feb. 13, 2003, no pet.) (mem. op., not designated for
publication) (holding that by failing to object to court’s consideration of PSI report,
defendant forfeited his contention that his Sixth Amendment right to counsel was
violated by court’s requirement that he give statement to probation officer
preparing PSI report without his counsel being present).
Reyes candidly admits that he did not object to the trial court’s
consideration of the PSI report, and his position on preservation of these issues
is somewhat convoluted. In part of his brief, Reyes contends that he could not
have objected to the court’s consideration of the PSI report at the punishment
hearing because ―no valid objection to the trial court’s [consideration] of the PSI
report existed under Texas statutory law.‖ And yet later, Reyes contends that
stands for the proposition that counsel is not required to be present during a
presentence investigation that is ordered after the formal entry of guilt.
5
what separates this case from those cases where the PSI report was not
objected to when considered by the trial court and the reviewing court concluded
that the objections had been waived is that in this case ―the constitutional
violations about which [he] complains occurred at the moment when the
objectionable PSI interview commenced, not later when the fruits of those
violations were presented to the trial judge.‖
This court is at a loss to understand how the failure to contemporaneously
object to the trial court’s consideration of a PSI report is affected by the timing of
the State’s alleged infraction. Indeed, a review of those cases where courts have
considered the preservation of error regarding a trial court’s consideration of a
PSI report demonstrates that the alleged violations in those cases also occurred
prior to the punishment hearing, and thus the consideration of the PSI report as
well. See Fisher, 2005 WL 994740, at *1.
The dissent takes issue with our position that the timing of the objection
has no effect on our analysis regarding whether Reyes has in fact preserved his
complaints for our review. Dissent op. at 2. Like the dissent, Reyes seems to
believe that because the alleged infraction occurred prior to his entry of guilt, this
case is distinguishable from other cases where the introduction of a PSI report
obtained under alleged State infractions were analyzed under traditional
preservation rules. But an examination of the caselaw summarily dismisses both
Reyes’s and the dissent’s position regarding the timing of the alleged infraction.
See Hollin v. State, 227 S.W.3d 117, 123 (Tex. App.—Houston [1st Dist.] 2006,
6
pet. ref’d) (―Appellant made no objection in the trial court either to the order of
proceedings or to the consideration of the PSI report prior to a formal finding of
guilt.‖); see also Renteria v. State, No. 01-06-00677-CR, 2007 WL 3038041, at *1
(Tex. App.—Houston [1st Dist.] Oct. 18, 2007, no pet.) (mem. op., not designated
for publication) (holding that defendant’s failure to object to trial court’s
consideration of PSI report, even though PSI report was obtained prior to formal
entry of guilt, waived complaints for appellate review).
While recognizing that even the nature of his complaint has been rejected
in other cases, and despite the dissent’s argument that we misunderstand the
issue in this case, what separates Reyes’s complaint from a number of cases
that have poured out the appellant under preservation-of-error rules is that Reyes
contends that he was not required to object to the trial court’s consideration of
the PSI report because the nature of the State’s infractions in this case
implicated ―fundamental‖ errors that required no objection at trial. But see, e.g.,
United States v. Washington, 11 F.3d 1510, 1517 (10th Cir. 1993), cert. denied,
511 U.S. 1020 (1994) (holding that Fifth Amendment privilege against self-
incrimination does not apply to PSI interview); United States v. Woods, 907 F.2d
1540, 1543 (5th Cir. 1990), cert. denied, 498 U.S. 1070 (1991) (holding
defendant’s Sixth Amendment right to counsel not violated because routine PSI
interview not critical stage of proceedings in which counsel’s presence or advice
is necessary); Trimmer v. State, 651 S.W.2d 904, 905–06 (Tex. App.—Houston
[1st Dist.] 1983, pet. ref’d) (holding that defendant need not be admonished
7
regarding his Fifth Amendment and Miranda rights before participating in a
routine presentence interview).
The main issue that must be decided regarding whether Reyes preserved
these issues for our review is whether the nature of his complaints required him
to have objected at the moment the trial court considered his PSI report.3 As
Reyes puts it, the rights he complains of that were violated are ―so fundamental[4]
to the proper functioning of our adjudicatory process as to enjoy special
protection in the system.‖
A. General Preservation Rules
As a general rule, 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); Layton v.
State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). An objection must be
3
Reyes’s earliest objection to the trial court’s consideration of the PSI
report came in his motion for new trial, one month after the trial court pronounced
his sentences at the punishment hearing. In his motion, Reyes complained only
of a Sixth Amendment violation. For the first time on appeal, Reyes also brings a
Fifth Amendment complaint.
[4]
This court has already recognized the movement to stray from the use of
the term ―fundamental,‖ to denote a right that requires no preservation of error in
order to claim a violation of such a right on appeal. See Parker v. State, No. 02-
11-00032-CR, 2011 WL 5984539, at *2 n.4 (Tex. App.—Fort Worth Dec. 1, 2011,
no pet.) (mem. op., not designated for publication). But because Reyes uses that
term in a manner consistent with a number of cases that use the term and
because the rules of evidence use the term, we will use it as well. See Tex. R.
Evid. 103(d).
8
made as soon as the basis for the objection becomes apparent. Tex. R. Evid.
103(a)(1); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (―We
have consistently held that the failure to object in a timely and specific manner
during trial forfeits complaints about the admissibility of evidence.‖). This gives
the trial judge and the opposing party an opportunity to correct the error at a time
when the judge is in the best position to take testimony, if necessary; consider
counsels’ arguments; and rule on the objection in the context of the present
proceeding. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).
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); Mendez v. State, 138 S.W.3d
334, 341 (Tex. Crim. App. 2004). A reviewing court should not address the
merits of an issue that has not been preserved for appeal. Ford v. State, 305
S.W.3d 530, 532 (Tex. Crim. App. 2009).
In the absence of proper procedural perfection of error, the only type of
errors that may be raised for the first time on appeal are complaints that the trial
court disregarded an absolute or systemic requirement or that the appellant was
denied a waivable-only right that he did not waive. Bessey v. State, 239 S.W.3d
809, 812 (Tex. Crim. App. 2007); Mendez, 138 S.W.3d at 340–41; Marin v. State,
851 S.W.2d 275, 280 (Tex. Crim. App. 1993), overruled on other grounds by
Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997).
9
Therefore, because Reyes failed to procedurally perfect his objection to
the trial court’s consideration of the PSI report by objecting when the PSI report
was introduced at trial or by objecting to the PSI report when Reyes testified to
contents of the PSI report, we are prohibited from considering his assignment of
error unless the admission of the PSI report violated a systemic or absolute
requirement or Reyes did not forfeit a right that was ―waivable only.‖ Mendez,
138 S.W.3d at 340–41.
B. The Rights Reyes Complains of Are Neither Systemic Nor
Absolute Requirements
Recognized as being absolute, systemic requirements are not necessarily
constitutional. Hall v. State, 303 S.W.3d 336, 341 (Tex. App.—Amarillo 2009,
pet. ref’d). Systemic or absolute requirements include, but are not limited to,
personal jurisdiction, subject-matter jurisdiction, a penal statute’s compliance with
the separation of powers section of the state constitution, a constitutional
requirement that a district court conduct its proceedings at the county seat, a
constitutional prohibition against ex post facto laws, and certain constitutional
restraints on the comments of a judge. Saldano, 70 S.W.3d at 888–89.
Systemic requirements are to be observed even without partisan request
and cannot lawfully be avoided even with partisan consent. Sanchez v. State,
120 S.W.3d 359, 366 (Tex. Crim. App. 2003). Therefore, an appellant may
complain that an absolute requirement or prohibition was violated, and the merits
10
of his complaint on appeal are not affected by the existence of a waiver or
forfeiture at trial. Id.
The Sixth Amendment guarantees that ―[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.‖ U.S. Const. amend. VI; see Gideon v. Wainwright, 372 U.S. 335, 339,
83 S. Ct. 792, 794 (1963). The Sixth Amendment right to counsel applies in all
state criminal prosecutions in which the defendant is accused of a felony. Id. at
342; 83 S. Ct. at 795. Once the adversarial judicial process has been initiated,
the Sixth Amendment guarantees a defendant the right to have counsel present
at all ―critical‖ stages of the criminal proceeding. Montejo v. Louisiana, 556 U.S.
778, 129 S. Ct. 2079, 2085 (2009); Hughen v. State, 297 S.W.3d 330, 334 (Tex.
Crim. App. 2009), cert. denied, 130 S. Ct. 3291 (2010). Interrogation by the
police or a state actor acting on behalf of the police, after charges have been
filed, is considered to be a critical stage. Brewer v. Williams, 430 U.S. 387, 398,
97 S. Ct. 1232, 1239 (1977); Hughen, 297 S.W.3d at 334.
The Fifth Amendment of the United States Constitution provides that ―[n]o
person . . . shall be compelled in any criminal case to be a witness against
himself.‖ U.S. Const. amend. V. As a prophylactic protection of this Fifth
Amendment right, law enforcement officials, before questioning a person in
custody, must inform a defendant that he has the right to remain silent and that
any statement he makes may be used against him in court. Miranda v. Arizona,
11
384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966); Ramos, 245 S.W.3d 410, 418
(Tex. Crim. App. 2008).
This State’s corollary to Miranda warnings is found in Texas Code of
Criminal Procedure article 38.22. Tex. Code Crim. Proc. Ann. art. 38.22, § 2
(West 2005). Article 38.22 sets out the requirements for the admission of an
accused’s statements. Under Article 38.22, written statements are not
admissible unless it is shown on the face of the statement that the appellant
received the appropriate warnings (1) that the accused has the right to remain
silent, (2) that anything he says may be used against him at his trial or in court,
(3) that he has the right to have an attorney be present and advise him during
questioning, (4) that an attorney will be provided before questioning if he cannot
afford one, (5) and that he has the right to terminate the interview at any time. Id.
The face of the statement must also show that the accused waived all these
rights. Id.
As a procedural safeguard, a defendant has at least two opportunities to
seek redress for any alleged violation of these rights. Hall, 303 S.W.3d at 342.
First, a defendant may file a pretrial motion to suppress evidence and have it
heard and ruled upon before trial. Tex. Code Crim. Proc. Ann. art. 28.01, § 1(6)
(West 2006). A motion to suppress is a specialized objection regarding the
admissibility of evidence. Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim.
App. 1981) (op. on reh’g). Such a motion is the proper remedy when evidence is
illegally obtained in violation of a defendant’s rights. Hall, 303 S.W.3d at 342;
12
Wade v. State, 814 S.W.2d 763, 764 (Tex. App.—Waco 1991, no pet.) (citing
Jackson v. State, 717 S.W.2d 713, 715 (Tex. App.—San Antonio 1986, pet. ref’d,
untimely filed)). Second, a defendant can always object to the admission of the
evidence at the time it is offered at trial. Tex. R. Evid. 103(a)(1); see Holmes v.
State, 248 S.W.3d 194, 199 (Tex. Crim. App. 2008). Under either safeguard, the
accused is empowered by statute to have his counsel seek redress of any Fifth
or Sixth Amendment violation or a failure to comply with article 38.22 during a
post-indictment interrogation before there is any possibility the violation might
affect his ability to receive a fair trial. Hall, 303 S.W.3d at 342 & n.10.
Given that the court of criminal appeals has never held that the rights
Reyes now complains of are systemic or absolute and given the procedural
safeguards in place which are by nature invoked by the party and can even be
avoided by a party’s own consent in the event of a violation of these rights, we
conclude that the rights Reyes complains of are not systemic or absolute rights.
C. The Trial Court’s Consideration of a PSI Report Is Not a
Waivable-Only Right
Waivable-only rights are rights that cannot be waived merely by omission.
Instead, those rights can only be waived by affirmative acts of commission.
Waivable-only rights include the right to assistance of counsel at trial, the right to
trial by jury, and the right of appointed counsel to have ten days of trial
preparation. See Aldrich v. State, 104 S.W.3d 890, 895–96 (Tex. Crim. App.
13
2003); see also Williams v. State, 252 S.W.3d 353, 355 (Tex. Crim. App. 2008);
Saldano, 70 S.W.3d at 888.
Although the court of criminal appeals has yet to expressly decide whether
evidence introduced at trial obtained in violation of an accused’s Sixth
Amendment right to counsel or an accused’s Fifth Amendment right against self-
incrimination during post-indictment interrogation is ―waivable only,‖ the court’s
opinion in Swain v. State, 181 S.W.3d 359 (Tex. Crim. App. 2005) is instructive in
our determination of what is required to procedurally perfect such an alleged
error. In Swain, the defendant asserted on appeal that the police violated his
right to counsel under the Fifth and Sixth Amendments when they continued to
question him after the accused had appeared before a magistrate and requested
counsel be appointed. Id. at 365. In his written motion to suppress submitted to
the trial court, the accused asserted a violation of his right to counsel and his
right against self-incrimination under the Fifth, Sixth, and Fourteenth
Amendments of the United States Constitution and article one, sections 10 and
19 of the Texas Constitution. Id. But because the accused’s global statements
consisting of little more than citations to constitutional and statutory provisions
failed to assert a specific complaint, the Swain court held that the accused’s
―global statements in his pretrial motion to suppress were not sufficiently specific
to preserve the arguments he [was making] on appeal‖ under rule 33.1 of the
Texas Rules of Appellate Procedure. Id.; see also Sabedra v. State, No. 05-03-
01709-CR, 2005 WL 1155068, at *2 (Tex. App.—Dallas May 17, 2005, pet.
14
dism’d, untimely filed) (not designated for publication) (failure to make a specific
objection at trial that admission of tape recording violated Sixth Amendment right
to counsel forfeited point on appeal).
Following the Swain court, the Amarillo court of appeals has held that the
defendant failed to preserve for appellate review his claim that he had the right to
have counsel present during post-indictment, defendant-initiated interrogations,
where defendant failed to make timely objection to admission of his inculpatory
statements. Hall, 303 S.W.3d at 343. And in a related case, this court in the
unpublished case of Fisher held that the defendant failed to procedurally perfect
his complaint that statements contained in his PSI report violated the
Confrontation Clause of the Sixth Amendment. Fisher, 2005 WL 994740, at *1.
Based upon these precedents and the procedural safeguards in place
discussed above, we conclude and hold that in order to procedurally perfect for
our review a trial court’s consideration of a PSI report that is obtained in alleged
violation of a defendant’s Fifth Amendment right against self-incrimination; his
Texas constitution article I, section 10 right to counsel; and his Sixth Amendment
right to have counsel present when a probation officer questions him during
preparation of the PSI report, the defendant must object to the trial court’s
consideration of the PSI report when it is considered by the trial court. Reyes did
not do so. Thus, having failed to object to the trial court considering the PSI
report, Reyes failed to procedurally perfect these arguments and has forfeited
them for our review.
15
The dissent takes issue with our recital of the law that the right to counsel
at trial cannot be forfeited but must affirmatively be waived. Dissent op. at 5–6.
The dissent contends that this articulation of the law is at conflict with our
holding. A study of caselaw, however, demonstrates that the right to counsel is
not a sweepingly broad right that swallows all procedurally forfeitable rights that
are tangentially related to Fifth and Sixth Amendment rights to counsel. See
Swain, 181 S.W.3d at 365 (holding that defendant failed to preserve for appellate
review his claim that his oral statement to detective and investigator and his third
written statement were obtained in violation of his right to counsel where on the
motion to suppress, defendant failed to complain about being questioned after
asserting his right to counsel and instead simply objected that his statements
were inadmissible because the police illegally arrested him and failed to comply
with statutory requirements); see also Hall, 303 S.W.3d at 344–45 (holding that
defendant failed to preserve for appellate review claim that he had right to have
counsel present during post-indictment, defendant-initiated interrogations where
defendant failed to make timely objection to admission of his inculpatory
statements). Compare Marin, 851 S.W.2d at 279 (―Rights which are waivable
only, as well as absolute systemic requirements and prohibitions, cannot be
made subject to rules of procedural default because, by definition, they are not
forfeitable.‖).
The dissent seems to address the semantics of the language enunciated in
these cases. This is understandable given that the right to counsel is often
16
described as a fundamental right that is ―waivable only.‖ See Garcia v. State,
149 S.W.3d 135, 141 (Tex. Crim. App. 2004) (reasoning that certain rights, such
as the right to counsel, are implemented as a matter of course unless the
defendant takes affirmative action to prevent such implementation). But there is
a difference between the denial of a certain right engulfed by the right to counsel
versus evidence introduced at trial that allegedly had been obtained in violation
of that right. While the right to counsel, including most notably the right to
effective assistance of counsel, is not subject to forfeiture, cases like this case,
that have dealt with the issue of evidence introduced at trial that was allegedly
obtained in violation of the right to counsel, have treated the issue as one falling
squarely within appellate rules of forfeiture or procedural default. See Robinson
v. State, 16 S.W.3d 808, 813 (Tex. Crim. App. 2000) (holding that defendant was
not procedurally barred from claiming ineffective assistance of trial counsel on
direct appeal). Compare Hall, 303 S.W.3d at 336 (holding that defendant failed
to preserve for appellate review claim that he had right to have counsel present
during post-indictment, defendant-initiated interrogations where defendant failed
to make timely objection to admission of his inculpatory statements).
As stated above, the policy behind treating evidence obtained in violation
of ―fundamental‖ rights equal to other evidentiary matters is that ―objections
promote the prevention and correction of errors. When valid objections are
timely made and sustained, the parties may have a lawful trial. They, and the
judicial system, are not burdened by appeal and retrial. When a party is excused
17
from the requirement of objecting, the results are the opposite.‖ Saldano, 70
S.W.3d at 887. Moreover, rights once thought to be ―waivable only‖ actually
require an objection at trial. See Gonzalez v. State, 8 S.W.3d 640–45 (Tex.
Crim. App. 2000) (holding that requiring a defendant to timely raise a violation of
Fifth Amendment’s prohibition regarding multiple punishments in the trial court
serves legitimate state interests and is consistent with the underlying policies of
the general rules of procedural default). On these points, the court of criminal
appeals has consistently held that the failure to object in a timely and specific
manner during trial forfeits complaints about the admissibility of evidence.
Mendoza v. State, 552 S.W.2d 444, 450 (Tex. Crim. App. 1977) (trial court did
not commit fundamental error by allowing testimony that denied defendant
federally guaranteed constitutional rights; defendant was required to object to
preserve this error). This general principle is even true when evidence is
obtained in violation of what otherwise would be considered ―fundamental.‖ See
Swain, 181 S.W.3d at 365; see also Gauldin v. State, 683 S.W.2d 411, 413 (Tex.
Crim. App. 1984) (failure to preserve error regarding admitted statements
obtained in violation of Miranda when trial counsel failed to obtain ruling on
motion to suppress statements), overruled on other grounds by State v. Guzman,
959 S.W.2d 631, 634 (Tex. Crim. App. 1998). We overrule both of Reyes’s
points.
18
IV. CONCLUSION
Having overruled Reyes’s two points, we affirm the trial court’s judgments.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DAUPHINOT, J. filed a dissenting opinion.
PUBLISH
DELIVERED: February 9, 2012
19
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00334-CR
NO. 02-10-00335-CR
OSWALDO JAVIER REYES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
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DISSENTING OPINION
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Respectfully, I cannot join the majority opinion. Despite its conscientious
consideration of Appellant’s issues as perceived by the majority and despite the
majority’s thorough examination of the record, I do not believe that the majority
opinion addresses the issues actually raised by Appellant. That is, I believe that
the majority misunderstands Appellant’s complaints.
The majority appears to believe that Appellant’s issues are based on the
admissibility of a presentence investigation report (PSI) or the authority of the
trial court to order or consider a PSI. In a footnote, the majority finds Appellant’s
prayer for relief to be ―peculiar‖ because ―once remanded, the trial court would
still possess the statutory authority to order a new PSI.‖ 1 The majority candidly
admits that it is ―at a loss to understand how the failure to contemporaneously
object to the trial court’s consideration of a PSI . . . is affected by the timing of the
State’s alleged infraction.‖2
Clearly, the majority does not understand the issue. The issue is whether
a criminal defendant may be questioned at a critical stage of the proceeding
when he is represented by counsel but without advising the attorney who
represents him. A concise recitation of the facts will be helpful:
1. Appellant was indicted on February 26, 2010, in two separate indictments
on aggravated assault of a family member by shooting Jesika and
aggravated assault of a family member by threatening his father with a
deadly weapon.
2. By at least October 9, 2009, Appellant’s attorney notified the State and the
trial court that he would be entering an open plea of guilty in a bench trial.
3. On January 21, 2010, Appellant’s attorney again appeared for him and
indicated Appellant’s intention to plead guilty, and the case was passed to
another setting.
4. On April 9, 2010, counsel again appeared for Appellant and again informed
the trial court that Appellant intended to plead guilty.
1
Majority op. at 4 n.2.
2
Id. at 6.
2
5. On that date the trial court told Appellant’s attorney that Appellant’s pleas
of guilty would be accepted at the punishment hearing set for May 28,
2010.
6. On May 27, 2010, the day before the punishment hearing, a probation
officer conducted a presentence investigation interview of Appellant at the
Denton County Jail.
7. No one notified Appellant’s attorney that the probation officer was going to
interview Appellant in the jail.
8. Appellant did not waive his right to have counsel present during
questioning.
9. Both the prosecutor and the defense attorney were given a copy of the
PSI.
10. Appellant testified on his own behalf at the trial.
11. The State used the PSI to question Appellant about his intent to kill Jesika
when his testimony differed from the PSI.
As in Estelle v. Smith,3 the trial court, not the State, sent the officer to
interview Appellant. No one notified Appellant’s lawyer, who had already made
at least three appearances for Appellant, that anyone would be questioning
Appellant, who was in jail. No one told Appellant that he had a right to remain
silent or the right to have counsel present pursuant to the Fifth and Sixth
Amendments to the Constitution of the United States. Although a copy of the PSI
resulting from the questioning of Appellant by the probation officer was provided
3
451 U.S. 454, 456–57, 101 S. Ct. 1866, 1870 (1981).
3
to Appellant, it was also provided to the State,4 who used it as the basis of its
cross-examination of Appellant. Indeed, the probation officer asked Appellant
questions based on information provided to him by the district attorney’s office.
Appellant’s complaint is that he was denied his Sixth Amendment right to
counsel, not that the trial court had no authority to order the PSI. He argues that
objection to the PSI was not required to preserve his Sixth Amendment
protection. The Sixth Amendment right to counsel attaches ―automatically‖ at the
initiation of adversary criminal proceedings.5 The fundamental nature of the right
to counsel makes it obligatory on the states by the due process clause of the
Fourteenth Amendment.6
Although the trial court has the authority to order a PSI—which I believe
permits ex parte communication with the trial court, private investigation into facts
affecting sentencing that are often hearsay upon hearsay, improper opinion
expressed for the purpose of influencing the trial court, and denial of
confrontation and cross-examination of declarants providing the PSI information
to the trial court—the trial court has no authority to require the defendant to
4
See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(d), (f) (West Supp. 2011)
(requiring that the defense have access to the PSI and that the State have
access to ―any information made available to the defendant‖).
5
Davis v. United States, 512 U.S. 452, 456–57, 114 S. Ct. 2350, 2354
(1994); Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App.), cert. denied,
516 U.S. 832 (1995).
6
Gideon v. Wainwright, 372 U.S. 335, 343–44, 83 S. Ct. 792, 796 (1963).
4
speak with the probation officer.7 A remand would not deprive Appellant of his
Fifth Amendment right to remain silent, nor would it deprive him of his Sixth
Amendment right to seek the advice of counsel in deciding whether to speak to
the probation officer. Neither the trial court, nor the probation officer, nor his own
lawyer can compel a defendant in a criminal case to give up his right to remain
silent.
Appellant argues that because the Fifth and Sixth Amendment rights must
be waived personally by a defendant and cannot be waived by counsel, those
rights, consequently, cannot be waived by counsel by procedural default. 8
Additionally, the State brings out the point that there is no evidence that
the trial court used the PSI. Rather, it was used to gain admissions and to
provide information for the prosecution to use in cross-examination of Appellant
in the punishment phase of the trial. But it was admitted into evidence with no
objection. That fact is uncontroverted, but neither is it the issue raised by
Appellant.
The majority states that ―[w]aivable-only rights include the right to
assistance of counsel at trial . . . ,‖9 but the majority does not address the fact
7
See Mitchell v. United States, 526 U.S. 314, 325–26, 119 S. Ct. 1307,
1313 (1999); Estelle, 451 U.S. at 462–63, 101 S. Ct. at 1873; Carroll v. State, 42
S.W.3d 129, 132 (Tex. Crim. App. 2001).
8
See Marin v. State, 851 S.W.2d 275, 278–79 (Tex. Crim. App. 1993).
9
Majority op. at 13.
5
that Appellant was denied the assistance of counsel during trial when the
representative of the court, the probation officer, knowing that Appellant was
represented by counsel, interviewed Appellant without warning him of his right
not to speak to the officer, without warning him that he had the right to have his
attorney present, and without giving notice to Appellant’s counsel of the
interview.
Because the majority fails to address the issue actually argued by
Appellant and because the majority opinion turns on a question different from
that raised by Appellant, I must respectfully dissent from the majority opinion.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: February 9, 2012
6