In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00145-CR
BRYAN HAYWARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Tarrant County, Texas
Trial Court No. 1471899D
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
Bryan Hayward pled guilty to possession with intent to deliver four or more, but less than
200, grams of cocaine. In the “plea recommendation” portion of Hayward’s written plea
admonishments, Hayward agreed to an “open plea to Court with PSI.” After reviewing the
presentence investigation report (PSI), the trial court sentenced Hayward to twenty years’
imprisonment.
In his sole point of error on appeal, 1 Hayward argues that the trial court’s consideration of
the PSI violated his rights under the Confrontation Clause. We find that Hayward failed to
preserve this issue and overrule his sole point of error on appeal. Accordingly, we affirm the trial
court’s judgment.
I. Hayward Did Not Preserve His Confrontation Clause Complaint
To preserve a complaint for our review, a party must first present to the trial court a timely
request, objection, or motion stating the specific grounds for the desired ruling, if not apparent
from the context. TEX. R. APP. P. 33.1(a)(1). Here, when the State introduced the PSI during
sentencing, Hayward affirmatively stated that he had no objection to the report. By agreeing to
the trial court’s consideration of the PSI, the State argues that Hayward forfeited any argument
against its consideration on appeal. We agree. See Swain v. State, 181 S.W.3d 359, 368 (Tex.
Crim. App. 2005); Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005).
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Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We follow the
precedent of the Second Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
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Hayward acknowledges that the Texas Court of Criminal Appeals has held that the right to
confront witnesses does not apply when a PSI is used in a non-capital case in which the defendant
has elected to have the trial court assess punishment. Stringer v. State, 309 S.W.3d 42, 48 (Tex.
Crim. App. 2010). He also claims that, although he failed to object to the introduction of the PSI,
his complaint was not forfeited because the law is well-settled on this issue. See Ex parte Hathorn,
296 S.W.3d 570, 572 (Tex. Crim. App. 2009). In other words, because the law was settled against
Hayward in Stringer, Hayward argues that a Confrontation Clause objection would have been
overruled and was futile. The Second Court of Appeals has rejected this same argument and has
expressly held that an objection to a PSI is required to preserve any Confrontation Clause argument
on appeal. Sell v. State, 488 S.W.3d 397, 398–99 (Tex. App.—Fort Worth 2016, pet. ref’d).
We overrule Hayward’s unpreserved sole point of error.
II. Conclusion
We affirm the trial court’s judgment.
Ralph K. Burgess
Justice
Date Submitted: January 10, 2019
Date Decided: January 11, 2019
Do Not Publish
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