Reyes v. State

• Decision Date: 09 February 2012
• Docket Number: Nos. 02–10–00334–CR,02–10–00335–CR.,s. 02–10–00334–CR
• Citation: 361 S.W.3d 222
• Parties: Oswaldo Javier REYES, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

361 S.W.3d 222

Oswaldo Javier REYES, Appellant,

v.The STATE of Texas, State.

Nos. 02–10–00334–CR

02–10–00335–CR.

Court of Appeals of Texas, Fort Worth.

Feb. 9, 2012.

H.F. Rick Hagen, Jackson & Hagen and Sarah Roland, Denton, for Appellant.

Paul Johnson, Crim. Dist. Atty., Charles E. Orbison, Chief, Appellate Division, Matthew J. Whitten, Matthew J. Shovlin, Ryan Calvert, Asst. Crim. Dist. Atty's, for Denton County, Denton, for State.

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

OPINION

BILL MEIER, Justice.

I. Introduction

Appellant Oswaldo Javier Reyes appeals his sentences of fifty years' incarceration and twenty years' incarceration that the trial court imposed after he pleaded guilty to two separate counts of aggravated assault with a deadly weapon against a family member. We will affirm.

II. Background

Reyes and his wife, Jesika, separated after Christmas 2008. After separating, Reyes moved in with his parents. Reyes sent Jesika a text message on January 18, 2009. In the message, Reyes informed Jesika that a friend of his was interested in buying some of their old furniture. Jesika agreed to meet at the couple's former apartment that night so that the friend could look at the furniture. But when Jesika arrived at the apartment, Reyes pulled a gun from his pocket and directed Jesika to the bedroom.

Later, Reyes's mother and father came to the apartment. When his parents arrived, Reyes took their keys and phones and directed them to the bedroom as well. After several hours of pleading with Reyes, Reyes's father ultimately convinced him to go back home with him. As they left the bedroom, Reyes's mother asked for some water. Jesika went to the kitchen and retrieved a bottle of water. On her way back from the kitchen, Reyes fired two shots at Jesika—one hit her leg and the other her side. Jesika fled the apartment and sought help from a neighbor. Jesika survived the shooting.

The State indicted Reyes with two counts of aggravated assault with a deadly weapon against a family member—one count for shooting Jesika and the other for threatening his father with a deadly weapon. Reyes, through his trial counsel, notified the State and the trial court that he would be proceeding with an open plea whereby Reyes would enter a plea of guilty to each of the indictments but elect to have the trial court assess punishment. The trial court notified Reyes's trial counsel that his pleas of guilty would be accepted and that a punishment hearing would be held on May 28, 2010.

A probation officer went to the jail where Reyes was being held on May 27, 2010, and conducted a presentence investigation (PSI) interview. According to an affidavit written by Reyes's trial counsel and introduced during a hearing held on Reyes's motion for new trial, trial counsel was not informed that this interview was going to take place. On May 28, 2010, Reyes signed judicial confessions and pleaded guilty. The punishment hearing then commenced, and Reyes and the State were provided copies of the PSI report, which was predicated on the probation officer's interview.

At the punishment hearing, Reyes took the stand and testified on his own behalf. When the State asked Reyes whether he intended to kill Jesika when he shot her, he answered, “No.” The State then used contents from the PSI report to impeach Reyes's testimony, and Reyes admitted that he had told the probation officer that he did intend to kill Jesika. Reyes did not object to the PSI report at this time or at any time during the punishment hearing. At the conclusion of the punishment phase, the trial court sentenced Reyes to fifty years' confinement for the assault on Jesika and twenty years' confinement for the assault against his father.

On June 28, 2010, Reyes's appellate counsel filed a motion for new trial, where for the first time Reyes alleged that the PSI interview was a critical stage in the State's cases against him and that the interview was conducted in violation of his Sixth Amendment right to have counsel. The trial court conducted a hearing on the motion for new trial and denied Reyes's motion. This appeal followed.

III. Discussion

In two points, Reyes argues that his Sixth Amendment right to counsel; his Texas constitution article I, section 10 right to counsel; his Fifth Amendment right against self-incrimination; his Texas constitution article I, section 10 right against self-incrimination; and several statutory rights to counsel were violated when the probation officer interviewed him for the PSI without the benefit of his counsel being present and without informing him of Miranda and Texas Code of Criminal Procedure article 38.22 warnings. ¹ Reyes asks this court to remand for a new trial on punishment. ²

Citing unpublished cases that stand for the proposition that the failure to object to a trial court's consideration of a PSI report at punishment forfeits any potential error for appellate review, the State argues that Reyes has failed to preserve these issues for our review. See Fisher v. State, No. 02–04–00434–CR, 2005 WL 994740, at *1 (Tex.App.-Fort Worth Apr. 28, 2005, no pet.) (mem op., not designated for publication) (holding that by failing to object to trial court's consideration of PSI report, defendant forfeited his contention that statements contained in report violated the Confrontation Clause of the Sixth Amendment); see also Zamudio v. State, No. 14–02–00283–CR, 2003 WL 297737, at *1 (Tex.App.-Houston [14th Dist.] Feb. 13, 2003, no pet.) (mem. op., not designated for publication) (holding that by failing to object to court's consideration of PSI report, defendant forfeited his contention that his Sixth Amendment right to counsel was violated by court's requirement that he give statement to probation officer preparing PSI report without his counsel being present).

Reyes candidly admits that he did not object to the trial court's consideration of the PSI report, and his position on preservation of these issues is somewhat convoluted. In part of his brief, Reyes contends that he could not have objected to the court's consideration of the PSI report at the punishment hearing because “no valid objection to the trial court's [consideration] of the PSI report existed under Texas statutory law.” And yet later, Reyes contends that what separates this case from those cases where the PSI report was not objected to when considered by the trial court and the reviewing court concluded that the objections had been waived is that in this case “the constitutional violations about which [he] complains occurred at the moment when the objectionable PSI interview commenced, not later when the fruits of those violations were presented to the trial judge.”

This court is at a loss to understand how the failure to contemporaneously object to the trial court's consideration of a PSI report is affected by the timing of the State's alleged infraction. Indeed, a review of those cases where courts have considered the preservation of error regarding a trial court's consideration of a PSI report demonstrates that the alleged violations in those cases also occurred prior to the punishment hearing, and thus the consideration of the PSI report as well. See Fisher, 2005 WL 994740, at *1.

The dissent takes issue with our position that the timing of the objection has no effect on our analysis regarding whether Reyes has in fact preserved his complaints for our review. Dissent op. at 2. Like the dissent, Reyes seems to believe that because the alleged infraction occurred prior to his entry of guilt, this case is distinguishable from other cases where the introduction of a PSI report obtained under alleged State infractions were analyzed under traditional preservation rules. But an examination of the caselaw summarily dismisses both Reyes's and the dissent's position regarding the timing of the alleged infraction. See Hollin v. State, 227 S.W.3d 117, 123 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (“Appellant made no objection in the trial court either to the order of proceedings or to the consideration of the PSI report prior to a formal finding of guilt.”); see also Renteria v. State, No. 01–06–00677–CR, 2007 WL 3038041, at *1 (Tex.App.-Houston [1st Dist.] Oct. 18, 2007, no pet.) (mem. op., not designated for publication) (holding that defendant's failure to object to trial court's consideration of PSI report, even though PSI report was obtained prior to formal entry of guilt, waived complaints for appellate review).

While recognizing that even the nature of his complaint has been rejected in other cases, and despite the dissent's argument that we misunderstand the issue in this case, what separates Reyes's complaint from a number of cases that have poured out the appellant under preservation-of-error rules is that Reyes contends that he was not required to object to the trial court's consideration of the PSI report because the nature of the State's infractions in this case implicated “fundamental” errors that required no objection at trial. But see, e.g., United States v. Washington, 11 F.3d 1510, 1517 (10th Cir.1993), cert. denied, 511 U.S. 1020, 114 S.Ct. 1404, 128 L.Ed.2d 76 (1994) (holding that Fifth Amendment privilege against self-incrimination does not apply to PSI interview); United States v. Woods, 907 F.2d 1540, 1543 (5th Cir.1990), cert. denied, 498 U.S. 1070, 111 S.Ct. 792, 112 L.Ed.2d 854 (1991) (holding defendant's Sixth Amendment right to counsel not violated because routine PSI interview not critical stage of proceedings in which counsel's presence or advice is necessary); Trimmer v. State, 651 S.W.2d 904, 905–06 (Tex.App.-Houston [1st Dist.] 1983, pet. ref'd) (holding that defendant need not be admonished regarding his Fifth Amendment and Miranda rights before participating in a routine presentence interview).

The main issue that must be decided regarding whether Reyes preserved these issues for our review is whether the nature of his complaints required...