DocketNumber： 2-05-111-CR
Judges： Dauphinot, Holman, Walker
Filed Date： 10/23/2008
Status： Precedential
Modified Date： 11/14/2024
OPINION ON REMAND
I. INTRODUCTION
The primary issue we address in this appeal is whether Appellant Francis William Stringer forfeited his Confrontation Clause objection to the “Adult Felony History” portion of his presentence investigation report (PSI). Because Stringer placed his criminal history at issue and accepted the benefits of the order requiring a PSI, Stringer has forfeited or is estopped from asserting a Confrontation Clause objection to the Adult Felony History portion of his PSI. We affirm the trial court’s judgment.
II. Factual and Procedural Background
Stringer pleaded guilty to a felony and filed an application for probation. At a January 27, 2005 plea hearing, the trial court accepted Stringer’s guilty plea and ordered the preparation of a PSI. No record of the plea hearing exists. Stringer’s punishment hearing was convened on March 30, 2005, after the trial court received the PSI. At the punishment hearing, Stringer’s counsel specifically objected that the four paragraphs of the PSI titled, “Adult Felony History,” violated Stringer’s Confrontation Clause Rights.
Based on the information contained in the PSI, Stringer argued that the trial court should grant him probation. Specifically, Stringer argued:
First, as the clerk’s record reflects, Mr. Stringer is eligible for probation. He’s sworn before the Court that he’s never been convicted of a felony.
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I would point out that in the presentence investigation, at one time several years ago he completed a year probation for misdemeanor theft. He has shown that he can accomplish things that are positive. His education history, he’s got two degrees, plus 30 hours towards a Master’s degree.... His employment history shows there that he’s had — at least the five jobs shown there, he’s always been a computer programmer....
At the conclusion of the hearing, the trial court sentenced Stringer to nine years’ confinement.
In a single point, Stringer complained that the trial court erred during the punishment phase by overruling his Confrontation Clause objection to the Adult Felony History section of his PSI. On original submission, following precedent from our court, we agreed with the State that Stringer had waived his objection to the PSI by signing a specific written admonishment.
III. Forfeiture of Confrontation Clause Objection to Criminal History in PSI
A. Waiver, Invited Error, and Acceptance of Benefits Doctrine
The doctrine of invited error is properly thought of, not as a species of waiver, but as estoppel. Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000). Waiver might usefully be distinguished from what is sometimes called “invited error.” Id. As the court in Prystash stated,
If a party affirmatively seeks action by the trial court, that party cannot later contend that the action was error. This is not really a waiver of error previously committed. Rather, it is part of the definition of what can constitute error, and quite reasonably defines error of which a party may complain as exclud*98 ing those actions of the trial court actually sought by the party in that tribunal.
Id. (quoting George E. Dix & Robert 0. Dawson, 43 Texas Practice-Criminal Practice and Procedure § 42.141 (Supp. 1999) (footnote omitted)).
B. Statutory PSI Scheme
The statutory PSI scheme provides that “[ejxcept as provided by Subsection (g) of this section, before the imposition of sentence by a judge in a felony case, ... the judge shall direct a supervision officer to report to the judge in writing.” Tex.Code Crim. Proc. Ann. art. 42.12, § 9(a) (Vernon Supp.2008) (emphasis added). The statute also provides that the PSI is to include the “circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, [and] the criminal and social history of the defendant.” Id. (emphasis added). Thus, when a defendant files an application for probation and requests the trial court to assess punishment in a felony case, a trial court “shall ” direct the preparation of a PSI. Id.; Griffith v. State, 166 S.W.3d 261, 263 (Tex.Crim.App.2005); Whitelaw v. State, 29 S.W.3d 129, 131-32 n. 13 (Tex.Crim.App.2000). And the PSI shall report “in writing on ... the criminal ... history of the defendant.” Tex.Code Crim. Proc. Ann. art. 42.12, § 9(a). Nonetheless, a defendant may waive a PSI. See Griffith, 166 S.W.3d at 263 (dealing with an express waiver of PSI); Summers v. State, 942 S.W.2d 695, 696-97 (TexApp.-Houston [14th Dist.] 1997, no pet.) (dealing with an implied waiver via the defendant’s failure to object to the absence of a PSI).
The PSI was originally intended only to facilitate a trial court’s decision on the issue of probation. See Smith v. State, 227 S.W.3d 753, 761 (Tex.Crim.App.2007). The court of criminal appeals has repeatedly held that a trial court should use the PSI to determine whether the person convicted is entitled to probation. See id. at 761 n. 21 (citing McNeese v. State, 468 S.W.2d 800, 801 (Tex.Crim.App.1971) (trial court should “use the probation officer’s report and take into consideration all of the pertinent information to more intelligently determine if the person convicted is entitled to probation”); Valdez v. State, 491 S.W.2d 415, 417 (Tex.Crim.App.1973) (same); Clay v. State, 518 S.W.2d 550, 555 (Tex.Crim.App.1975) (same)); see also Anderson v. State, 896 S.W.2d 578, 580 (Tex.App.-Fort Worth 1995, pet. ref'd) (recognizing that “[o]nce the door is opened regarding suitability for probation, the State may inquire into any bad acts relevant to deciding appellant’s suitability”). Because the PSI was originally to be used in this context — for a probation determination — the court of criminal appeals was not concerned that the PSI “might contain what would be, at a formal punishment hearing, patently objectionable as rank hearsay or evidence of an unadjudi-cated extraneous offense (such as a pending indictment or an arrest record).” Smith, 227 S.W.3d at 761.
That brings us to the objection asserted here: that the Adult Felony History of Stringer’s PSI violated his Confrontation Clause rights.
C. All Negative Statements in PSI are “Testimonial”
Crawford v. Washington, while declining to explicitly define “testimonial,” explained that
[the Confrontation Clause] applies to “witnesses” against the accused — in other words, those who “bear testimony.” “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” An accuser who makes a formal statement to government officers bears testimony....
541 U.S. 36, 51, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004) (citations omitted). Cases after Crawford have further developed the law concerning the types of out-of-court statements that are testimonial. See, e.g., Davis v. Washington, 547 U.S. 813, 821-24, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006) (distinguishing street-corner “nontestimonial” statements to law enforcement officers from litigation-oriented “testimonial” statements and recognizing that police interrogation statements relating to past events relevant to a criminal prosecution are “testimonial statements” for purposes of the Confrontation Clause, in part because of their adversarial nature and, in part, because the reasonable declarant would recognize that the statements could be used in a future criminal prosecution); Wall v. State, 184 S.W.3d 730, 742-43 (Tex.Crim.App.2006) (explaining that “whether a statement is testimonial under Crawford is determined by the standard of an objectively reasonable de-clarant standing in the shoes of the actual declarant”); Brooks v. State, 132 S.W.3d 702, 707 (Tex.App.-Dallas 2004, pet. ref'd)
Virtually all statements in a PSI that reflect negatively on the defendant will constitute “testimonial” statements for Confrontation Clause purposes. They are gathered by a state employee, a supervision officer. Tex.Code Crim. Proc. Ann. art. 42.12, § 9(a). They are for the express purpose of use in a probation or sentencing determination concerning the defendant. Id. art. 37.07, § 3(d). They are not street-corner “nontestimonial” statements but instead are statements that a reasonable declarant would recognize, or would have been expressly told, were for use in a probation or sentencing decision concerning the defendant. See, e.g., Davis, 547 U.S. at 821-24, 126 S.Ct. at 2273-74. Conversely, statements in the PSI that the defendant deems positive to him would be nontestimonial because the statement would not be “against” the defendant. See Crawford, 541 U.S. at 51, 124 S.Ct. at 1364 (recognizing that [the Confrontation Clause] applies to witnesses against the accused).
The State in the present case concedes that the statements and information set forth in the Adult Felony History portion of Stringer’s PSI are “testimonial” for purposes of a Confrontation Clause analysis.
D. Application of Law to Facts
We note at the outset that neither party offered Stringer’s PSI into evidence. The code of criminal procedure does not require that the PSI be introduced into evidence. See George E. Dix & Robert 0. Dawson, 43 Texas Practice-Criminal Practice and Procedure § 38.172. It simply provides that a trial court may “inspect a report” or may “consider” a report. See Tex.Code Crim. Proc. Ann. arts. 42.12, § 9(c) (inspect), 37.07, § 3(d) (consider). Thus, technically no “evidence” or “testimony” was offered into evidence to which Stringer could have lodged a Confrontation Clause objection. Indeed, as set forth above, Stringer’s exact objection was to the Adult Felony History “being considered,” not to the admission into evidence of the PSI or any portion of the PSI. The Sixth Amendment and the rule enunciated in Crawford apply only to attempts to admit testimony and evidence. See U.S. Const, amend. VI (providing that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him”); Crawford, 541 U.S. at 51, 124 S.Ct. at 1364 (addressing admissibility of wife’s out-of-court, tape-recorded statement to police). We question how a defendant’s Confrontation Clause rights may be violated by statements in a document that is not admitted into evidence.
Nonetheless, the record before us establishes that the trial court did in fact consider the PSI. Nothing else exists in the record that could have been considered in the trial court’s probation and sentencing decision. And Stringer urged the trial court to consider the PSI, except for the Adult Felony History portion. The failure of any party to actually offer the PSI into evidence is not fatal. See Smith, 227 S.W.3d at 757 (addressing objection to PSI although it was never offered into evi
To prohibit a judge from considering any portions of a PSI to which a defendant asserts a Confrontation Clause objection would obliterate the statutory PSI purposes and procedure. The statutory provisions require a judge’s consideration of a defendant’s entire “criminal and social history” — i.e., the good and the bad aspects of the defendant’s criminal and social history. See Tex.Code Crim. Proc. Ann. art. 42.12, § 9(a). But Confrontation Clause objections to negative criminal and social history statements and information in a PSI would limit a judge to considering only the positive statements on these matters that are in a PSI. Thus, the fundamental and original purpose of a PSI — to provide a judge contemplating probation for a defendant with accurate information on factors relevant to a grant of probation-would be fatally undermined. See, e.g., Walker v. State, 493 S.W.2d 239, 240 (Tex.Crim.App.1973) (explaining that “[i]t makes a great deal of sense that the judge should have before him a thorough report of the accused’s past record and background, when considering his motion for probation. The very purpose of granting probation is to release a convicted defendant who shows himself capable of adhering to certain conditions”). Otherwise, a judge would be left with only un-Confrontation-Clause-object-ed-to information that was favorable to the defendant in making the important decision of whether to grant probation.
In other circumstances where the PSI statutory scheme has conflicted with the rules of evidence or with other statutory provisions — although not a constitutional right, as here — courts have implicitly recognized the unique status of PSIs. See, e.g., Smith, 227 S.W.3d at 761-63 (stating that extraneous offense in PSI need not be proved beyond a reasonable doubt); Fryer, 68 S.W.3d at 630-32 (reiterating that rules of evidence do not apply to contents of PSI and holding that victim impact statement may be contained in PSI and considered before sentencing); Brooks, 76 S.W.3d at 435 (stating that notice of extraneous offense need not be given for information only in PSI). Thus, we come to the question before us: whether a defendant who pleads guilty to a felony, files a sworn application for probation and thereby triggers the statutory necessity for a PSI, acquiesces in a recess for preparation of a PSI, and urges a trial court to consider the PSI and to grant probation has forfeited any Confrontation Clause objections to a required portion of the PSI — the defendant’s criminal history.
The justifications for the rule of waiver in the testimonial context are evident: A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry. As noted in Rogers, a contrary rule “would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony.” It would, as we said in Brown, “make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.” The illogic of allowing a witness to offer only self-selected testimony should be obvious even to the witness, so there is no unfairness in allowing cross-examination when testimony is given without invoking the privilege.
526 U.S. 314, 322, 119 S.Ct. 1307, 1312, 143 L.Ed.2d 424 (1999) (citations omitted).
The State also points out that the statutory PSI scheme provides a remedy if the defendant believes that the PSI contains factual inaccuracies. See Tex.Code Crim. Proc. Ann. art. 42.12, § 9(e). The remedy is that a defendant, with the approval of the judge, may introduce testimony or other information alleging a factual inaccuracy in the investigation or in the PSI. Id. And, likewise, because the statute requires that a defendant receive a copy of the PSI no later than forty-eight hours before sentencing, a defendant has ample time to file a motion for continuance of the punishment hearing for the purpose of issuing subpoenas for those persons named in the PSI whom he wishes to cross-examine. See id. art. 42.12, § 9(d). Thus, the State argues that the statutory scheme itself provides a remedy for defendants like Stringer.
The facts of this case do not fall squarely within the four corners of any of the waiver cases, the invited error cases, or the acceptance of benefits cases. But, the circumstances here seem analogous to aspects of each of these three categories of cases. Stringer pleaded guilty to a felony, filed an application for probation swearing that he had never before been convicted of a felony in Texas, and thereby triggered the trial court’s mandatory statutory duty to order a PSI. Id. art. 42.12, § 9(a); Griffith, 166 S.W.3d at 263. The duty to direct the preparation of a PSI under these circumstances is mandatory, subject to certain exceptions. See Tex.Code Crim. Proc. Ann. art. 42.12, § 9(a) (providing that “[ejxcept as provided by Subsection (g) .... before the imposition of sentence by a judge in a felony case, ... the judge shall direct a supervision officer to report to the judge”) (emphasis added); cf id. art. 37.07, § 3(d) (providing that “[w]hen the judge assesses the punishment, he may order an investigative report”) (emphasis added). The trial court, in compliance with the law, ordered a PSI; Stringer at least acquiesced in the recess of his punishment hearing for purposes of preparation of the PSI. Also, the record contains an order for psychological testing away from jail mandating a psychosexual evaluation on Stringer as part of the PSI. When Stringer’s punishment hearing convened, Stringer objected to the Adult Felony History of the PSI on Confrontation Clause grounds and relied upon the remaining portions of the PSI to urge the trial court to grant probation. Stringer forfeited or is estopped from asserting his Confrontation Clause objection to the Adult Criminal
First, Stringer waived his right to assert a Confrontation Clause objection to the Adult Criminal History portion of his PSI by filing an application for probation swearing that he had never been convicted of a felony in Texas and by relying upon the positive information in the PSI to urge the trial court to grant probation. The language of the PSI statute requires the supervision officer to report to the judge on the criminal history of the defendant. See id. art. 42.12, § 9(a). By implication, the trial court is to consider the criminal history of a defendant in making a probation decision. See, e.g., Smith, 227 S.W.3d at 761 n. 21. By swearing that he had never been convicted of a felony in Texas, Stringer put his criminal history at issue. See Anderson, 896 S.W.2d at 580. By relying upon the positive portions of the PSI to urge the trial court to grant probation, Stringer in effect elicited testimony of specific good conduct in an attempt to show that he was suitable for probation. See id. A defendant should not be able to seek probation, place his criminal history at issue via a sworn pleading, rely on positive statements in the PSI and urge the trial court to grant probation based on such information, yet nullify the statutory requirement that the PSI include and that the trial court consider his criminal history by asserting a Confrontation Clause objection. Accord Mitchell, 526 U.S. at 322-28, 119 S.Ct. at 1312 (recognizing defendant waives Fifth Amendment privilege at punishment as to the matters he himself has put in dispute by testifying). Otherwise, the result would be that a judge is prevented from considering the very information in the PSI that the statute implies the judge should consider in making a probation decision.
As the Supreme Court explained in Mitchell, “[t]he justifications for the rule of waiver in the testimonial context are evident: A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry.” Id. at 322, 119 S.Ct. at 1312. Although Mitchell dealt with the waiver of a Fifth Amendment right against self-incrimination instead of a Sixth Amendment right of confrontation and the Mitchell court dealt with a defendant’s testimony instead of with a supervision officer’s “testimony” set forth in a written report, the same analysis applies. A defendant may not use portions of a witness’s testimony as a sword — here the supervision officer’s presentence report — but then use a constitutional right as a shield to eliminate portions of the same witness’s testimony that are unfavorable to the defendant. For these reasons, by filing an application for probation swearing that he had never been convicted of a felony and by urging the trial court to grant probation based on the positive portions of the PSI, Stringer waived, or is estopped from asserting, a Confrontation Clause objection to the Adult Criminal History portion of his PSI.
Second, the facts reflect that Stringer accepted the benefits of the trial court’s order requiring preparation of a PSI. A PSI was prepared, and Stringer was not required to himself develop the evidence he would need for a full, adversarial punishment hearing. This was a distinct benefit to him. He did not need to subpoena witnesses or to gather evidence. Instead, he relied upon the positive hearsay information in the PSI to urge the trial court to grant probation. He specifically relied upon the result of the PSI’s ordered psy-chosexual testing, arguing that “he show[ed] potentially positive responses to the treatment in some respects.” String
And finally, Stringer did not indicate that he believed the PSI contained factual inaccuracies and did not move for a continuance. See Tex.Code Crim. Proc. Ann. art. 42.12, § 9(d), (e). Stringer was entitled to comment on the PSI and to introduce, with the approval of the judge, testimony or other information alleging a factual inaccuracy in the PSI. See id., art. 42.12, § 9(e). By accepting the benefits of the order requiring a PSI and the order requiring psychosexual testing as part of the PSI, Stringer’s remedies concerning the information in the PSI were statutorily limited to utilizing the statutory procedure available to comment on the PSI or to correct a factual inaccuracy in the PSI. Stringer is estopped from asserting a Confrontation Clause objection to the Adult Criminal History portion of the PSI.
Our holding is limited to cases in which a defendant pleads guilty to a felony, files an application for probation, and asserts a Confrontation Clause objection to a statutorily required portion of the PSI. We need not address whether the same analysis would apply to a Confrontation Clause objection made to a PSI ordered under article 37.07, section 3(d). See Tex.Code Crim. Proc. Ann. art. 37.07, § 3(d). We need not address whether the same analysis would apply to a Confrontation Clause objection made to a nonstatutorily required portion of the PSI. We need not address whether the same analysis would apply to a Confrontation Clause objection to the entire PSI. We need not address whether the Confrontation Clause applies at the punishment phase of trial.
IV. Conclusion
Having overruled Stringer’s sole issue, we affirm the trial court’s judgment.
DAUPHINOT, J. filed a dissenting opinion.
. Appellant's exact objection to the PSI was that
[pjage 11 under the heading of "Adult Felony History”, that — the four paragraphs under that heading, Your Honor, I would object to it being considered because of the Crawford versus Washington. It violates our right of confrontation and cross-examination because it's a pending unadjudicated offense out of Dallas County, and the reporter, the PSI officer, is bringing evidence of accusations based upon a case in Dallas, and we would object....
. The admonishment we relied upon provided:
Joined by my attorney and in accordance with Art. 1.13 and 1.15 of the Code of Criminal Procedure, I waive and give up my right to a jury, both as to my guilt and assessment of my punishment. Under Art. 1.15, Code of Criminal Procedure, I waive and give up the right to appearance, confrontation, and cross-examination of the witnesses, and I consent to oral and written stipulations of evidence.
. Other cases applying the invited error doctrine include McCray v. State, 861 S.W.2d 405, 409 (Tex.App.-Dallas 1993, no pet.); Mann v. State, 850 S.W.2d 740, 742 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd); Ex parte Hargett, 827 S.W.2d 606, 607-08 (Tex.App.-Austin 1992, pet. ref'd).
. The trial court may also request that "other information relating to the defendant or the offense" be included in the PSI. See Tex.Code Crim. Proc. Ann. art. 42.12, § 9(a). The issue before us, however, is limited to forfeiture of a Confrontation Clause objection to information statutorily required to be contained in the PSI, here, criminal history.
. Numerous federal courts, even after Crawford, have held that it does not. See, e.g., United States v. Stone, 432 F.3d 651, 654 (6th Cir.2005), cert. denied, 549 U.S. 821, 127 S.Ct. 129, 166 L.Ed.2d 35 (2006); United States v. Chau, 426 F.3d 1318, 1322-23 (11th Cir.2005); United States v. Monteiro, 417 F.3d 208, 215 (1st Cir.2005), cert. denied, 546 U.S. 1202, 126 S.Ct. 1405, 164 L.Ed.2d 105 (2006); United States v. Roche, 415 F.3d 614, 618 (7th Cir.), cert. denied, 546 U.S. 1024, 126 S.Ct. 671, 163 L.Ed.2d 541 (2005); United States v. Luciano, 414 F.3d 174, 179 (1st Cir.2005); United States v. Fleck, 413 F.3d 883, 894 (8th Cir.2005). The Texas Court of Criminal Appeals has not directly decided the issue.