Opinion issued May 19, 2011
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00347-CR
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ASHLEY NICOLE WILLIAMS, Appellant
V.
The State of Texas, Appellee
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Cause No. 14,978
MEMORANDUM OPINION
Appellant Ashley Nicole Williams appeals a judgment convicting her for aggravated robbery. See Tex. Penal Code Ann. § 29.03 (West 2003). Williams pleaded guilty, and the trial court assessed her punishment at 20 years in prison. She contends that the trial court violated her constitutional rights by considering ex parte communications in assessing her punishment. We conclude that because Williams failed to timely object in the trial court, she failed to preserve this issue for appeal. We affirm.
Williams robbed a bank by brandishing a knife. She was arrested, and a grand jury subsequently indicated her for aggravated robbery, a first-degree felony punishable by imprisonment for 5 to 99 years or life and a fine not to exceed $10,000. Williams requested that she be released pending trial so that she could take care of her grandmother and younger sister. The trial court released her on the condition that she stay at home to provide care and that she leave only if her grandmother needed her to do so.
Two weeks later, Williams pleaded guilty without having entered into any agreement as to punishment. The trial court ordered the preparation of a presentence investigation report and scheduled a punishment hearing. Concerning the question of whether Williams could obtain a job in the interim, the trial court admonished her that the conditions of her release remained the same. Two weeks after pleading guilty, Williams was arrested for allegedly violating the conditions of her bond.
Before announcing its assessment of punishment at the sentencing hearing, the trial court read from a number of letters that had been included in the presentence investigation report. The court then addressed Williams as follows:
[W]hile I would like to trust you and think that you would be a good probationer, I must tell you—and I don’t want to hear your excuses—when I gave you that chance that your sweet grandma asked me for, you blew it off.
You weren’t doing what you were supposed to do. I don’t care what you tell me. What I’ve been told and what I learned is that you were doing just basically whatever you wanted. You may have done a few good deeds while you were out, but you certainly did not do what you told me you needed to do when you stood here tearfully asking me to let you out with your grandma. You didn’t do it.
You’re not a good candidate for probation. You’re not going to be successful. I’m going to give mercy. So instead of 50 years, I’m going to sentence you to 20.
(Emphasis supplied.) Williams made no objection at the sentencing hearing relating to the trial court’s consideration of information contained in the presentence investigation report or obtained by the trial court from other sources, if any.
Following sentencing, Williams’s counsel untimely filed a notice of appeal, which this Court dismissed for lack for jurisdiction. Williams v. State, No. 01-08-00815-CR, 2009 WL 214336, at *1 (Tex. App.—Houston [1st Dist.] Jan. 29, 2009, no pet.) (mem. op., not designated for publication). Williams then filed a writ of habeas corpus, contending that her counsel rendered ineffective assistance by failing to timely file a notice of appeal. Ex parte Williams, No. AP-76,315, 2010 WL 975319, at *1 (Tex. Crim. App. Mar. 17, 2010) (not designated for publication). The Texas Court of Criminal Appeals granted Williams the right to file an out-of-time appeal, see id., and she timely filed a notice of out-of-time appeal to this Court.
Williams contends that the trial court erred by considering ex parte communications in assessing her punishment, thus violating her right to confront the witnesses against her, guaranteed by the Sixth Amendment to the United States Constitution and by article one, section ten of the Texas Constitution and denying her right to due process, guaranteed by the Fourteenth Amendment to the United States Constitution. See U.S. Const. amend. VI, XIV; Tex. Const. art. I, § 10. Contrary to the State’s interpretation of her issues on appeal, Williams does not complain of the trial court’s reliance on any information contained in the presentence investigation report. Rather, she infers the existence of one or more unspecified ex parte communications from the trial court’s statement: “What I’ve been told and what I learned is that you were doing just basically whatever you wanted [while released on bond].” (Emphasis supplied.) Williams nevertheless concedes that “it cannot be determined from the record the exact source of the information conveyed to the [trial] Court, whether it was a law enforcement officer, probation officer or some other court appointee . . . .”
The occurrence of ex parte communication is not the only meaning—or even the most reasonable one—that could be drawn from the trial court’s statement now challenged on appeal. The reference to what the judge had “been told” and “learned” could have been, and most likely was, a reference to the contents of the presentence investigation report. But even if we assumed that the trial court’s statement indicates the existence of an ex parte communication, we nevertheless conclude that Williams failed to preserve any error by failing to object at trial. To preserve an error for appellate review, an appellant must object and obtain an adverse ruling. Tex. R. App. P. 33.1(a); Benson v. State, 224 S.W.3d 485, 498 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Failure to preserve error waives review of that error on appeal. Tex. R. App. P. 33.1(a); Benson, 224 S.W.3d at 498. The preservation-of-error requirement applies even as to errors premised on the Confrontation Clause and the Due Process Clause. Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004); Campos v. State, 186 S.W.3d 93, 98 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see also Routier v. State, 112 S.W.3d 554, 586 (Tex. Crim. App. 2003) (defendant’s failure to preserve for appellate review claim that trial court violated her rights by engaging in unrecorded ex parte communication waived review of error on appeal).
We affirm the judgment.
Michael Massengale
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
Do not publish. Tex. R. App. P. 47.2(b).