Melanie Storm v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00419-CR
MELANIE STORM APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1373849D
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MEMORANDUM OPINION1
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Appellant Melanie Storm entered an open plea of guilty to theft of property
under $1,500 with two prior convictions. At the sentencing hearing that
eventually followed, the trial court admitted a presentence investigation report
(PSI), found Storm guilty, and sentenced her to one year’s confinement in state
jail. In a single point, Storm argues that her Sixth Amendment right to
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See Tex. R. App. P. 47.4.
confrontation was violated when the trial court admitted the PSI at the sentencing
hearing.
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); 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). 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); Everitt, 407 S.W.3d at 263. Numerous constitutional rights,
including the right to confrontation, may be forfeited for purposes of appellate
review unless they are properly preserved. Broxton v. State, 909 S.W.2d 912,
918 (Tex. Crim. App. 1995); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim.
App. 1990); Deener v. State, 214 S.W.3d 522, 527 (Tex. App.—Dallas 2006, pet.
ref’d).
Here, Storm did not assert any objection, including on confrontation
grounds, when the State offered the PSI. In fact, Storm affirmatively stated, “No
objection.” Pointing out that the court of criminal appeals has held contrary to her
issue on the merits and that an objection to the PSI on confrontation grounds
“would necessarily [have] been overruled by the trial court,” Storm contends that
she did not have to object to the PSI on confrontation grounds because when
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“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.” This is only part
of the exception. The preservation exception may apply when the relief sought
by the appellant becomes available after trial and the appellant, therefore, could
not have been expected to preserve error by objecting at trial. See, e.g.,
Ex parte Hathorn, 296 S.W.3d 570, 572 (Tex. Crim. App. 2009). As the State
observes, however, Storm “does not seek to avail herself of a right based on a
favorable change in the law that occurred after her sentencing hearing; instead,
she seeks to change existing case law.” The preservation exception that Storm
relies upon is clearly inapplicable under the circumstances. Accordingly, Storm
forfeited this point for appellate review. We overrule her sole point and affirm the
trial court’s judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 23, 2015
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