Tyler James Kirkpatrick v. the State of Texas ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-21-00171-CR
TYLER JAMES KIRKPATRICK,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2019-476-C1
&
IN THE
TENTH COURT OF APPEALS
No. 10-21-00172-CR
TYLER JAMES KIRKPATRICK,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2019-594-C1
MEMORANDUM OPINION
In two issues, appellant, Tyler James Kirkpatrick, challenges the sentences
imposed in appellate cause numbers 10-21-00171-CR and 10-21-00172-CR. Specifically,
appellant complains that: (1) the trial court erred by admitting a presentencing report
over his hearsay objection; and (2) the admission of the presentencing report violated his
right to confront witnesses against him under the Sixth Amendment of the United States
Constitution. See U.S. CONST. amend. VI. We affirm.
Background
In appellate cause number 10-21-00171-CR, appellant pleaded guilty to two counts
of indecency with a child by contact without the benefit of a plea agreement with the
State. See TEX. PENAL CODE ANN. § 21.11. In appellate cause number 10-21-00172-CR,
appellant pleaded guilty to one count of aggravated sexual assault of a child and three
counts of indecency with a child by contact also without the benefit of a plea agreement
with the State. See id. §§ 21.11, 22.021. After a sentencing hearing where the trial court
Kirkpatrick v. State Page 2
considered all counts in both appellate cause numbers, the trial court assessed
punishment at twenty years’ confinement in the Institutional Division of the Texas
Department of Criminal Justice for each count. With regard to the one count of
aggravated sexual assault of a child and three counts of indecency with a child by contact
in appellate cause number 10-21-00172-CR, the trial court ordered the sentences to run
concurrently. The two counts of indecency with a child by contact in appellate cause
number 10-21-00171-CR were ordered to run concurrently with one another, but
consecutively with the sentences imposed in appellate cause number 10-21-00172-CR.
Admission of the Presentencing Report
In his first issue, appellant contends that the trial court erred by admitting the
presentencing report over his hearsay objection. We disagree.
We review a trial court’s admission or exclusion of evidence for an abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court
abuses its discretion if it acts arbitrarily or unreasonably, without reference to any
guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.
1990). When considering a trial court’s decision to admit or exclude evidence, we will
not reverse the trial court’s ruling unless it falls outside the “zone of reasonable
disagreement.” Id. at 391; see Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).
During the sentencing hearing for all of the counts in both appellate cause
numbers, appellant made a general hearsay objection to the admission of the
Kirkpatrick v. State Page 3
presentencing report. Appellant also objected that the State had failed to lay the proper
foundation for the admission of the presentencing report.
Notwithstanding the fact that a general hearsay objection does not preserve error
for appeal, see Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995), the Court of
Criminal Appeals has held that the rules of evidence generally do not apply to the
contents of a presentencing report. See Fryer v. State, 68 S.W.3d 628, 631 (Tex. Crim. App.
2002); Champion v. State, 126 S.W.3d 686, 699 (Tex. App.—Amarillo 2004, pet. ref’d); see
also O’Bryant v. State, No. 10-18-00063-CR, 2019 Tex. App. LEXIS 2179, at *4 (Tex. App.—
Waco Mar. 20, 2019, pet. ref’d) (mem. op., not designated for publication). This exception
also includes the rules pertaining to hearsay. See Champion, 126 S.W.3d at 699 (citing
Brown v. State, 478 S.W.2d 550, 551 (Tex. Crim. App. 1972) (holding that the statute
governing presentencing reports authorizes the trial court to consider information in the
presentencing report that is hearsay)); see also Smith v. State, 227 S.W.3d 753, 763 (Tex.
Crim. App. 2007) (noting that article 37.07, section 3(d) authorizes the trial court to order
a presentencing report and places no condition on the trial court in considering the
contents of the presentencing report (citing TEX. CODE CRIM. PROC. ANN. art. 37.07, §
3(d))). To hold otherwise would be “to deny the obvious purpose of the statute.” Fryer,
68 S.W.3d at 631 (citing Brown, 478 S.W.2d at 551).
Because the rules of evidence generally do not apply to the contents of a
presentencing report, and because the Court of Criminal Appeals has held that the trial
Kirkpatrick v. State Page 4
court can consider otherwise inadmissible hearsay contained in a presentencing report,
we cannot say that the trial court abused its discretion by overruling appellant’s hearsay
objection and admitting the presentencing report. See Smith, 227 S.W.3d at 763; Fryer, 68
S.W.3d at 631; Brown, 478 S.W.2d at 551; Champion, 126 S.W.3d at 699; Wilson v. State, 108
S.W.3d 328, 332 (Tex. App.—Fort Worth 2003, pet. ref’d) (“In this case, the Texas Court
of Criminal Appeals has given its imprimatur to the trial court’s consideration of
otherwise inadmissible hearsay. We are therefore compelled to hold that the trial court
did not err in admitting or considering the hearsay statements contained in the PSI.”); see
also O’Bryant, 2019 Tex. App. LEXIS 2179, at **4-5. We overrule appellant’s first issue.
In his second issue, appellant asserts that the admission of the presentencing
report violated his right to confront witnesses against him under the Sixth Amendment
of the United States Constitution. See U.S. CONST. amend. VI.
Generally, to preserve a complaint for appellate review, the party must make his
complaint to the trial court by a timely request, objection, or motion that states the
grounds for the ruling sought with sufficient specificity to make the trial court aware of
the complaint. See TEX. R. APP. P. 33.1(a). Confrontation Clause complaints are subject to
this general preservation requirement. See Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim.
App. 2010). A defendant’s failure to object on Confrontation Clause grounds at trial
waives a Confrontation Clause complaint for appellate review. See Paredes v. State, 129
S.W.3d 530, 535 (Tex. Crim. App. 2004) (holding that defendant failed to preserve a
Kirkpatrick v. State Page 5
Confrontation Clause complaint for appellate review when the trial objection was solely
on hearsay grounds).
A review of the record shows that appellant did not object to the admission of the
presentencing report on Confrontation Clause grounds. As such, we conclude that
appellant failed to preserve this complaint for appellate review. See TEX. R. APP. P. 33.1(a);
Davis, 313 S.W.3d at 347; see also Paredes, 129 S.W.3d at 535. We overrule appellant’s
second issue.1
Conclusion
Having overruled both of appellant’s issues on appeal, we affirm the judgments
of the trial court.
STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed April 13, 2022
Do not publish
[CR25]
1 We also note that the sentences in these cases were determined by the trial judge. The Court of
Criminal Appeals has held that: “When the sentence is determined by the judge, the information in a PSI
is not subject to the Confrontation Clause.” Stringer v. State, 309 S.W.3d 42, 48 (Tex. Crim. App. 2010).
Therefore, even if appellant had preserved his Confrontation Clause complaint to the presentencing report,
the complaint would fail. See id.Kirkpatrick v. State Page 6