ACCEPTED
06-15-00009-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
6/26/2015 11:45:13 AM
DEBBIE AUTREY
CLERK
NO. 06 – 15 – 00009 – CR
FILED IN
6th COURT OF APPEALS
IN THE SIXTH DISTRICT COURT OF TEXARKANA, TEXAS
APPEALS
TEXARKANA, TEXAS 6/26/2015 11:45:13 AM
DEBBIE AUTREY
Clerk
CHRISTIAN SIBLEY
Appellant,
v.
THE STATE OF TEXAS
Appellee
On appeal from the County Court At Law One, Gregg County, Texas
Trial Court Case No. 2013-2143
BRIEF OF THE STATE OF TEXAS
– ORAL ARGUMENT NOT REQUESTED –
Carl Dorrough
Criminal District Attorney
John J. Roberts
Texas Bar No. 24070512
Assistant District Attorney
Gregg County, Texas
101 East Methvin St., Suite 333
Longview, Texas 75601
Telephone: (903) 236–8440
Facsimile: (903) 236–3701
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 38.2(a)(2)(A), the State supplements Appellant’s
list of parties to the trial court’s final judgment with the names and addresses of all
appellate counsel:
Attorney for the Appellant on Appeal
Clement Dunn
140 East Tyler, Suite 240
Longview, Texas 75601
Attorney for the State on Appeal
Carl Dorrough
Criminal District Attorney
Gregg County, Texas
John J. Roberts
Texas Bar No. 24070512
Assistant District Attorney
101 East Methvin St., Suite 333
Longview, TX 75601
Telephone: (903) 236–8440
Facsimile: (903) 236–3701
1
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .......................................................... 1
TABLE OF CONTENTS ......................................................................................... 2
INDEX OF AUTHORITIES .................................................................................... 3
STATEMENT OF FACTS ....................................................................................... 5
SUMMARY OF THE ARGUMENT ...................................................................... 5
ARGUMENT ............................................................................................................. 6
A. Error Was not Preserved.................................................................................. 6
B. Court Can Rely on Pre-Sentence Report ........................................................ 8
PRAYER ................................................................................................................ 123
CERTIFICATES OF SERVICE AND COMPLIANCE .................................. 144
2
INDEX OF AUTHORITIES
Cases
Texas Court of Criminal Appeals Cases
Bitterman v. State, 180 S.W.3d 139 (Tex. Crim. App. 2005).....................................7
Brewer v. State, 1270-03, 2004 WL 3093224 (Tex. Crim. App. May 19, 2004)
(mem. op., not designated for publication)...............................................................11
Brito Carrasco v. State, 154 S.W.3d 127 (Tex. Crim. App. 2005)............................8
Hayden v. State, 296 S.W.3d 549 (Tex. Crim. App. 2009)........................................8
Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004)........................................6
Mitchell v. State, 931 S.W.2d 950 (Tex. Crim. App. 1996) (plurality op.)............8, 9
Moore v. State, 295 S.W.3d 329 (Tex. Crim. App. 2009) .........................................6
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998).........................................6
Texas Court of Appeals Cases
Bell v. State, 155 S.W.3d 635 (Tex. App.—Texarkana 2005)............................10, 11
Jackson v. State, 2014 Tex. App. LEXIS 12439 (Tex. App.—Houston [14th Dist.]
2014, pet. ref’d).........................................................................................................11
Jordan v. State, 02-05-450-CR, 2006 Tex. App. LEXIS 8434 (Tex. App. – Fort
Worth 2006, no pet. h.) (mem. op.)........................................................................6,7
Statutes
Tex. Code Crim. Proc. Art. 37.07, § 3(a) (1).........................................................8, 9
Tex. Code Crim. Proc. Art. 37.07, § 3(g)..................................................................9
3
Tex. Code Crim. Proc. Art., 42.12, § 9..........................................................................11
Rules
Tex. R. App. P. 33.1(a)(1)............................................................................................6, 7
Tex. R. App. P. 33.1(a)(2)................................................................................................6
4
STATEMENT OF FACTS
Christian Sibley (―Appellant‖) entered a plea to the Class A misdemeanor
offense of ―Escape from Custody‖ without an agreement with the State regarding
punishment. R.R. at 4. Because the Appellant reserved punishment for the Trial
Court, the Gregg County Community Supervision Department prepared a pre-
sentence report, which detailed the Appellant’s criminal history. R.R. at 5.
Both sides allowed the Court to consider the pre-sentence report for purposes
of determining punishment, and neither the State nor the Appellant objected to the
content or suggested any points of error in the report. Id. at 6.
Additionally, the State introduced an offense report, which the Court received
into evidence without objection. Id. at 6-7. At the conclusion of the punishment
hearing, following lengthy summations from both sides, the Court assessed a
sentence of three-hundred-thirty days in the county jail, a four-hundred dollar fine,
and cost of court. Id. at 13-14.
5
SUMMARY OF THE ARGUMENT
Because the Appellant failed to raise his complaint at trial or in a subsequent
motion for new trial, this Court should affirm the Trial Court’s judgment.
Furthermore, the Court properly relied on its knowledge of the Appellant’s
criminal history contained in the pre-sentence report, which was offered to the court
without objection.
ARGUMENT
A. Error Was Not Preserved
Because the Appellant failed to raise his complaint at trial or in a
subsequent motion for new trial, error was not preserved.
To preserve a complaint for appellate review, a party must present to the trial
court a timely request, objection, or motion that specifically states the grounds for
the desired ruling. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265
(Tex. Crim. App. 1998). Additionally, the trial court must rule on the request,
objection, or motion, or in the absence of a ruling, the complaining party must
object 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). Preservation of error is a systematic
requirement that the appellate court should review on its own motion. Moore v.
State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009).
6
A topical case is Jordan v. State, 02-05-450-CR, 2006 Tex. App. LEXIS
8434 (Tex. App. – Fort Worth 2006, no pet. h.) (mem. op.). In Jordan, the
defendant pleaded open to the court, and at the sentencing hearing, the State asked
the court to consider the findings of a pre-sentence report in assessing punishment.
Id. The Defendant made no objection to the State’s request or to the trial court’s
consideration of the report. Id. The trial court then sentenced the defendant to
twenty-five years confinement. Id.
The defendant appealed on the basis that the trial court erred by relying on a
pre-sentence report to assess punishment. Id. However, because he failed to raise
this issue at trial, the Court of Appeals affirmed the trial court’s judgment. Id.
In the present case, the Appellant contends that he is entitled to a new
punishment hearing because the Trial Court based its sentence on matters not in
evidence. Specifically, the Appellant alleges that the Court’s consideration of ―the
Court’s own knowledge of Mr. Sibley through the years‖ amounts to an allusion to
something beyond matters in evidence. R.R. at 13-14.
However, at no time during the punishment hearing did the Appellant present
to the Court a timely request, objection, or motion that specifically addressed this
complaint, as required by Texas law. Tex. R. App. P. 33.1(a)(1). Additionally, the
Appellant did not raise the complaint in a subsequent motion for new trial, an
7
alternative recourse in the event there is little opportunity to object at trial.
Bitterman v. State, 180 S.W.3d 139, 143 (Tex. Crim. App. 2005).
Therefore, because the Appellant failed to raise this issue at trial, this Court
should affirm the Trial Court’s judgment.
B. Court Can Rely on Pre-sentence Report to Assess Punishment
In assessing punishment, the Court properly relied on its knowledge of
the Appellant’s criminal history contained in the presentence report,
which was offered to the Court without objection.
At its core, the Appellant’s argument centers on statements made by the Trial
Court in reference to extraneous-offenses committed by the Appellant in assessing
his punishment.
Appellate courts review a trial court’s consideration of extraneous-offence
evidence under an abuse-of-discretion standard. Mitchell v. State, 931 S.W.2d 950
(Tex. Crim. App. 1996) (plurality op.). Under this standard, the appellate court shall
uphold the trial court’s ruling if it is reasonably supported by the record, is correct
under any theory of law applicable to the case, and it is within the zone of
reasonable disagreement. Hayden v. State, 296 S.W.3d 549, 553 (Tex. Crim. App.
2009); Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
8
The admissibility of evidence at the punishment stage of a trial is controlled
by article 37.07:
[E]evidence may be offered by the state and the defendant as to any matter
the court deems relevant to sentencing, including but not limited to the prior
criminal record of the defendant, his general reputation, his character, an
opinion regarding his character, the circumstances of the offense for which he
is being tried, and…any other evidence of an extraneous crime or bad act that
is shown beyond a reasonable doubt by evidence to have been committed by
the defendant or for which he could be held criminally responsible, regardless
of whether he has previously been charged with or finally convicted of the
crime or act.
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (1).
In the present case, the Appellant alleges that the Court relied on facts not in
evidence when it considered in part its ―own knowledge‖ of the Appellant’s
criminal history. He further alleges that because he did not receive the required
notice of this ―knowledge‖ he was prejudiced by unfair surprise. Article 37.07, Tex.
Crim. Proc., § 3(g).
The Appellant contends that the Court’s remarks remained vague and
obscure. But in fact, a plain reading of the record vanquishes any suggestion of
ambiguity. The Court’s assertion that it would rely on its ―own knowledge‖ equates
to nothing more than a mere mention of its awareness of extraneous-offenses
committed by the Appellant, which were discussed in the pre-sentence report
offered to the Court without objection.
9
Additionally, the fact that the pre-sentence report was not formally admitted
into evidence presents an interesting challenge to the Appellant’s position that the
trial court should restrict its consideration to facts in evidence. This Court
confronted a similar issue in Bell v. State, 155 S.W.3d 635 (Tex. App.—Texarkana
2005).
In Bell, the defendant appealed the judgment of the 188th Judicial District
Court of Gregg County on the ground that the court relied on facts not in evidence.
Id. at 636. Specifically, the court relied on a pre-sentence report (referred to in the
opinion as a ―PSI‖) which included a lengthy criminal history for the defendant. Id.
At the final punishment hearing, the trial court gave the parties the opportunity to
make any objections, deletions, or additions to the report. Id. at 637. The Defendant
objected on the basis that the criminal history section of the report was uncertified
and therefore amounted to inadmissible hearsay. Id. The trial court overruled the
defendant’s objection. Id.
On appeal, Bell argued in part that the trial court erred in assessing
punishment by considering the contents of the pre-sentence report because the
report was not formally admitted into evidence. Id. at 639. This Court affirmed the
trial court’s judgment because while Bell did object to hearsay statements contained
in the report, he failed to specifically object to the Court’s consideration of facts not
10
formally admitted into evidence. Id. Additionally, regarding a trial court’s reliance
on pre-sentence reports not introduced into evidence, this Court reasoned as
follows:
Based on Tex. Code Crim. Proc. Ann. art. 42.12, § 9’s restriction to access to
the information contained in the PSI, we feel the better practice is to not
admit the PSI into evidence. Such practice, in and of itself, should not restrict
the parties’ access to that information or the judge’s consideration of that
information in assessing punishment.
Id.
This opinion aligns with holdings in similar cases that emphasize the fact that
the purpose of a pre-sentence report is to fully inform the trial court of the
circumstances of the offense, the defendant’s background, education, prior offenses,
and prospects for rehabilitation. Brewer v. State, 1270-03, 2004 WL 3093224 at *2-
3 (Tex. Crim. App. May 19, 2004) (mem. op., not designated for publication).
While not precedent, Brewer illustrates the diminutive value in preparing a pre-
sentence report if the trial judge cannot consider the information within it. Jackson
v. State, 2014 Tex. App. LEXIS 12439 (Tex. App.—Houston [14th Dist.] 2014, pet.
ref’d) (citing Brewer, at *3).
So, if the purpose of a pre-sentence is to fully inform the trial judge before
assessing punishment, it seems counterintuitive, if not impossible for the judge to
disregard her first-hand knowledge of the very facts contained in the report.
11
Therefore, the Court properly relied on its knowledge of the Appellant’s
criminal history contained in the presentence report, which was offered to the Court
without objection.
CONCLUSION
As in Bell, the Appellant in the present case did not raise his objection at the
trial court level, and therefore, he is barred from asserting the claim on appeal.
Furthermore, read in proper context, a reasonable interpretation of the Court’s
statements reveal nothing more than a harmless reference to its personal knowledge
of the facts contained in the pre-sentence report, which was offered to the Court
without objection.
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PRAYER
It is submitted that all things are regular, and the State prays that the sentence
be Affirmed.
Respectfully Submitted,
/s/_John Roberts
John J. Roberts
Texas Bar No. 24070512
Assistant District Attorney
101 East Methvin St., Suite 333
Longview, TX 75601
Telephone: (903) 236–8440
Facsimile: (903) 236–3701
John.Roberts@co.gregg.tx.us
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing has been
forwarded to all counsel of record by certified mail, return receipt requested and/or
facsimile to:
Clement Dunn
140 East Tyler, Suite 240
Longview, Texas 75601
this 25th day of June, 2015.
/s/_John Roberts
John Roberts
Assistant District Attorney
CERTIFICATE OF COMPLIANCE
I certify that the BRIEF OF THE STATE OF TEXAS, exclusive of the
following: caption, identity of parties and counsel, table of contents, index of
authorities, statement of facts, summary of the argument, argument, prayer,
certificates of service and compliance contains 2,071 words, according to Word
software.
/s/_John Roberts
John Roberts
Assistant District Attorney
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Christian Sibley v. State
Combined Opinion