Rohn Cirkland Kingston v. the State of Texas ( 2022 )

Opinion filed October 20, 2022
In The
Eleventh Court of Appeals
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No. 11-21-00029-CR
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ROHN CIRKLAND KINGSTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 32nd District Court
Mitchell County, Texas
Trial Court Cause No. 8109
MEMORANDUM OPINION
Appellant, Rohn Cirkland Kingston, entered an open plea of guilty to the first-
degree felony offense of aggravated sexual assault of a child. See TEX. PENAL CODE
ANN. § 22.021(a)(1)(B)(i), (a)(2)(B) (West 2019). The trial court accepted
Appellant’s guilty plea and ordered that a presentence investigation report be
prepared. During a subsequent hearing, the trial court adjudicated Appellant guilty
and imposed a sentence of fifty years’ confinement in the Institutional Division of
the Texas Department of Criminal Justice and a fine of $1,000. The trial court
certified Appellant’s right to appeal his sentence, and Appellant raises two issues on
appeal. We affirm.
Procedural History
Appellant was indicted for the offense of super-aggravated sexual assault of a
child, a first-degree felony carrying a punishment range of twenty-five to ninety-
nine years or life. See PENAL §§ 12.32, 22.021(f)(1). Upon agreement with the
State, on January 28, 2021, Appellant entered an open plea to the lesser included
offense of aggravated sexual assault of a child, also a first-degree felony, but with a
punishment range of five to ninety-nine years or life. Appellant entered his plea of
guilty and also provided the trial court sworn testimony in support of his plea.
Appellant requested the trial court defer a finding of guilt until the sentencing
hearing; the trial court agreed and set the sentencing hearing for February 26, 2021.
At the sentencing hearing, the trial court heard from two witnesses: Deputy
Thomas Moore, an investigator with the Mitchell County Sheriff’s Office, and
Special Agent Anthony Bennett, with the Texas Department of Public Safety. The
State offered three exhibits into evidence with no objection from Appellant: Exhibit
No. 1 (the penitentiary packet from the Texas Department of Criminal Justice);
Exhibit No. 2 (a video recording of excerpts of Appellant’s interrogation with
Deputy Moore and Special Agent Bennett); and Exhibit No. 3 (a photograph of the
victim). Appellant called no witnesses and presented no evidence to the trial court.
The presentence investigation report (PSI) had been completed as requested by the
trial court. Appellant stated that he reviewed the PSI and had no objections.
During closing argument, the State requested that the trial court sentence
Appellant to “at least 50 years.” The trial court found Appellant guilty of aggravated
sexual assault of a child and assessed punishment at confinement for fifty years in
the Texas Department of Criminal Justice and a $1,000 fine.
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Appellant appeals his sentence alleging two issues: (1) that his sentence is a
violation of the Eighth Amendment guarantee against cruel and unusual punishment
and (2) that the inclusion of the police report and sexual assault forensic medical
assessment report (SANE report) in the PSI constituted harmful error.
Issue One
In Appellant’s first issue, he contends that his sentence is a violation of the
Eighth Amendment guarantee against cruel and unusual punishment. To preserve a
complaint that a sentence constitutes cruel and unusual punishment, a defendant
must first raise the issue to the trial court by a “timely request, objection, or motion”
stating grounds for the desired ruling, and the trial court must either rule or refuse to
rule on the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1), (2); Jones v.
State, No. 11-19-00251-CR, 2021 WL 3413794, at *1 (Tex. App.—Eastland Aug.
5, 2021, no pet.) (mem. op., not designated for publication). An appellant may also
preserve a sentencing issue by raising it in a motion for new trial. Jones, 2021 WL
3413794, at *2.
Appellant did not object that his sentence was cruel, unusual,
disproportionate, or excessive when the trial court pronounced the sentence, and
Appellant did not file a motion for new trial. Therefore, Appellant failed to preserve
his complaint for our review. See Curry v. State, 910 S.W.2d 490, 497–98 (Tex.
Crim. App. 1995) (failing to object at trial waives a claim of cruel and unusual
punishment). Appellant concedes that he did not preserve the issue for appeal, but
requests that this court evaluate his sentence anyway. We decline to do so and
overrule Appellant’s first issue.
Issue Two
In Appellant’s second issue, he argues that the inclusion of the police report
and SANE report in the PSI constituted harmful error. To preserve such a complaint,
Appellant must have objected in the trial court, and the trial court must have ruled
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on the objection or refused to rule on it. See TEX. R. APP. P. 33.1(a)(1), (2);
Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).
Appellant admits that he did not object to the PSI during the sentencing
hearing. Despite the admission that he did not preserve the alleged error for review,
Appellant claims that the reports constitute inadmissible hearsay and that the trial
court is not free to ignore the rules of evidence during the punishment phase of trial.
While the trial court must indeed follow the rules of evidence during the punishment
phase, we note that the PSI was not actually admitted into evidence. Furthermore,
the inclusion of hearsay in a PSI does not preclude its use by the trial court.
Stancliff v. State, 852 S.W.2d 630, 631 (Tex. App.—Houston [14th Dist.] 1993, pet.
ref’d). Appellant forfeited any claims that the reports were inadmissible hearsay
when he failed to object to their inclusion in the PSI. Because Appellant did not
object to the PSI in any form, this issue has not been preserved for our review. See
Jenkins v. State, No. 11-19-00272-CR, 2021 WL 3557566, at *5 (Tex. App.—
Eastland Aug. 12, 2021, no pet.) (mem. op., not designated for publication). We
overrule Appellant’s second issue.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
October 20, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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