361 S.W.3d 222
Tex. App.2012Background
- Reyes shot his wife Jesika and threatened his father with a deadly weapon, leading to two aggravated assault convictions with punishment to be separately served (50 years and 20 years).
- Reyes entered an open guilty plea for both counts, with the trial court to determine punishment after receiving a PSI report.
- A probation officer conducted a PSI interview on May 27, 2010, without Reyes's counsel present and without Miranda/38.22 warnings being given, though the PSI report was later provided to both sides.
- At the punishment hearing, Reyes testified; the State used PSI contents to impeach him, conflicting with his earlier testimony about his intent to kill Jesika.
- Reyes moved for new trial on June 28, 2010, asserting the PSI interview violated his rights; the trial court denied the motion, and Reyes appealed.
- The court held that Reyes failed to preserve the asserted constitutional violations by timely objection to the PSI’s consideration, and that the rights he alleged do not constitute systemic or waivable-only rights; thus the PSI issue was forfeited and the judgments were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of error for PSI-related rights | Reyes; rights violated at PSI interview | State; preservation preserved by standard rule | Rights not preserved; forfeited; no reversal |
| Whether the asserted rights are systemic or absolute | Rights are fundamental and non-waivable | Rights are not systemic or absolute | Not systemic or absolute; not reviewable on appeal without preservation |
| Waivable-only nature of the PSI-interview violation | Violation cannot be waived by non-objection | Objection timing controls waiver | Not waived; argument forfeited due to failure to object at PSI consideration |
Key Cases Cited
- Swain v. State, 181 S.W.3d 359 (Tex.Crim.App.2005) (procedural perfection for claims arising from statements obtained in violation of rights)
- Mendoza v. State, 552 S.W.2d 444 (Tex.Crim.App.1977) (general forfeiture rules for admissibility of evidence)
- Gonzalez v. State, 8 S.W.3d 640 (Tex.Crim.App.2000) (waiver rules for fifth amendment violations require timely objection)
- Hall v. State, 303 S.W.3d 336 (Tex.App.-Amarillo 2009) (right to counsel not forfeited; timely objection required to preserve claims)
- Hollin v. State, 227 S.W.3d 117 (Tex.App.-Houston [1st Dist.] 2006) (preservation when PSI was considered prior to guilt)
- Swain v. State, 181 S.W.3d 359 (Tex.Crim.App.2005) (illustrative of Swain doctrine on preserving claims)
- Renteria v. State, 2007 WL 3038041 (Tex.App.-Houston [1st Dist.] 2007) ((not designated for publication) preservation discussion regarding PSI)
- Fisher v. State, 2005 WL 994740 (Tex.App.-Fort Worth 2005) (unpublished; preservation on PSI/Confrontation Clause)