Reid, Duane

PD-1390-15 PD-1390-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/30/2015 10:20:10 AM
Accepted 11/2/2015 12:26:55 PM
ABEL ACOSTA
NO._________________
CLERK

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

DUANE REID
Petitioner

v.

THE STATE OF TEXAS
Respondent

Petition is in Cause No. 17125 from the 271st Criminal
District Court of Wise County, Texas,
and Cause No. 02-14-00376-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
Fax: (817) 222-3330
Email: lawfactor@yahoo.com
Attorney for Petitioner
Duane Reid
November 2, 2015
 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. John Fostel

Petitioner: Duane Reid

Petitioner’s Trial Counsel: Terry Barlow
TBN: 01758300
Dunham Law Firm
1110 E. Weatherford Street
Fort Worth, Texas 76102

Petitioner’s Counsel Abe Factor
on Appeal: TBN: 06768500
Factor, Campbell & Collins
Attorneys at Law
5719 Airport Freeway
Fort Worth, Texas 76117

Appellee: The State of Texas

Appellee’s Trial Counsel: Jay Lapham
TBN: 00784448
Assistant District Attorney
101 N. Trinity, Suite 200
Decatur, Texas 76234

Appellee’s Counsel Greg Preston Lowery
on Appeal: TBN: 00787926
Assistant District Attorney
101 N. Trinity, Suite 200
Decatur, Texas 76234

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. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

I. The court of appeals erred in holding that Petitioner had
forfeited his complaint that his right to confrontation was
violated when the trial court considered the PSI at
punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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

C. Preservation of Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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

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

F. Harm Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

iii
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

iv
 INDEX OF AUTHORITIES

Cases page

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

Ex parte Hathorn,
296 S.W.3d 570 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . 4

Huizar v. State,
12 S.W.3d 479 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . 8

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). . . . . . . . . . . . . . . . . . . . 10

Pointer v. Texas,
380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). . . . . . . . . . . . 6

Reid v. State,
02-14-00376-CR, 2015 WL 5634251 (Tex. App.–
Fort Worth, September 24, 2015, no. pet. h.)
(mem. op., not designated for publication). . . . 2, 4

Reyes v. State,
361 S.W.3d 222 (Tex. App.–Fort Worth 2012, pet. ref’d). . . . . . .4

Russeau v. State,
171 S.W.3d 871 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . 8, 9

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

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

v
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). . . . . . . . . . . . . . . . . . . . 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, 10

Statutes

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

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

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

T EX. P ENAL C ODE A NN. § 31.03(e)(5) (West Supp. 2014). . . . . . . . . . . . .1

Court Rules

T EX. R. A PP. P. 44.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 11

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 March 27, 2013, Petitioner Duane Reid (“Mr. Reid” or

“Petitioner”) was indicted for the third degree felony offense of theft,

alleged to have occurred on August 16, 2012. (C.R. 6); see T EX. P ENAL

C ODE A NN. § 31.03(e)(5) (West Supp. 2014). On August 12,2014, Mr.

Reid entered an open plea of guilty to the charged offense. (C.R. 37-43).

The trial court continued the proceedings pending the preparation of

a Presentence Investigation Report (“PSI”), until September 4, 2014. (II

R.R. passim). On that date, the trial court sentenced Mr. Reid to eight (8)

years incarceration in the Texas Department of Criminal Justice. (C.R.

44; II R.R. 36). A timely Motion for New Trial and Motion in Arrest of

Judgment was filed on September 16, 2014, which was overruled by

operation of law. (C.R. 48). A Timely Notice of Appeal was filed on

September 16, 2014. (C.R. 47).

STATEMENT OF PROCEDURAL HISTORY

The opinion by the Second Court of Appeals affirming

1
Petitioner’s conviction was handed down on September 24, 2015. Reid

v. State, 02-14-00376-CR, 2015 WL 5634251 (Tex. App.–Fort Worth,

September 24, 2015, no. pet. h.) (mem. op., not designated for

publication). A timely Motion to Extend Time to File Petition for

Discretionary Review was granted, thus, this Petition for Discretionary

review is timely.

GROUNDS FOR REVIEW

GROUND FOR REVIEW ONE

I. The court of appeals erred in holding that Petitioner had
forfeited his complaint that his right to confrontation 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.

2
 ARGUMENT

GROUND FOR REVIEW ONE (Restated)

I. The court of appeals erred in holding that Petitioner had
forfeited his complaint that his right to confrontation 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

court admitted into evidence the PSI prepared by the Wise 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

had “considered all matter relevant to this case.” (II R.R. 36). At no time

did trial counsel for Mr. Reid raise an objection to the matters included

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

denied Mr. Reid’s request for probation and sentenced him to eight (8)

year incarceration. (C.R. 44; II R.R. 36).

B. Opinion Below

The Opinion of the Second Court of Appeals failed to address

1
Undersigned counsel is aware that this Court has directly held adverse
to Petitioner’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.

3
Petitioner’s substantive complaint, but merely held that his complaint

had not been preserved in the trial court. Reid, 2015 WL 5634251 at *1

(citing Reyes v. State, 361 S.W.3d 222, 229 (Tex. App.–Fort Worth 2012,

pet. ref’d).

C. Preservation of Error

This Court 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. Ex

parte Hathorn, 296 S.W.3d 570, 572 (Tex. Crim. App. 2009) (citing Black

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

4
 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), this Court

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. Washington2 do not apply at a non-capital

sentencing to a PSI used by the judge in 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. Since

any objection would have been futile, the Second Court of Appeals

should have held that Mr. Reid’s complaint had been preserved for

appeal. Hathorn, 296 S.W.3d at 572.

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

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

5
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.”

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 also Langham v.

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

6
 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.

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

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

8
 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.

E. Application

Here, though no witnesses testified at punishment regarding the

compilation and contents of the PSI, 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 Mr. Reid at his 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 Mr. Reid. (III

R.R. St. Ex. 1). The admission of such testimonial statements violates

9
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.

D. 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). Mr. Reid’s sentence must be reversed unless it can be found

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

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

2006). This Court 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 and the testimony of Soren Anderson, a co-defendant on the instant

10
offense. The trial court ultimately denied Mr. Reid’s request for

probation and sentenced him 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. 35-36).

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

the conviction or punishment; thus, Mr. Reid was harmed by its

admission, and the judgment of the trial court on punishment should

have been reversed by the Second Court of Appeals. 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

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

11
 Phone: (817) 222-3333
Fax: (817) 222-3330
Email: lawfactor@yahoo.com
Attorneys for Petitioner
Duane Reid

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
2,034.

/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 30th
day of October , 2015.

/s/Abe Factor
Abe Factor

12
 APPENDIX

1. Opinion of the Second Court of Appeals

13
 COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-14-00376-CR

DUANE REID APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 271ST DISTRICT COURT OF WISE COUNTY
TRIAL COURT NO. CR17125

----------

MEMORANDUM OPINION 1

----------

Appellant Duane Reid entered an open plea of guilty to the offense of theft

in August 2014. He waived a jury and asked the trial court to assess

punishment. The trial court ordered a pre-sentence investigation report (“PSI”)

1
See Tex. R. App. P. 47.4.
and postponed the punishment hearing to September 2014. 2 The State

introduced the completed PSI, and the trial court admitted it without objection;

one witness for the State also testified. The trial court sentenced Appellant to

eight years’ confinement. Appellant subsequently filed a motion for new trial,

which was overruled by operation of law. He did not complain of the PSI in his

motion for new trial.

Confrontation

Appellant brings a single point on appeal, arguing that the trial court denied

him his Sixth Amendment right to confrontation when the trial court considered

the PSI at punishment. But Appellant did not object to the PSI’s admission. 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. 3 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. 4 A reviewing court should not

2
See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a) (West Supp. 2014)
(discussing the PSI requirements).
3
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).
4
Tex. R. App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 263.

2
address the merits of an issue that has not been preserved for appeal. 5 The

Sixth Amendment right to confrontation, among other constitutional rights, may

be forfeited by the failure to object. 6 Because Appellant did not object or

otherwise complain in the trial court of the admission of the PSI or of the trial

court’s considering the PSI in assessing punishment, he has not preserved this

complaint for review.

We overrule Appellant’s sole point and affirm the trial court’s judgment.

/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

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

DELIVERED: September 24, 2015

5
Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).
6
See Reyes v. State, 361 S.W.3d 222, 229 (Tex. App.—Fort Worth 2012,
pet. ref’d).

3