                                                                                 ACCEPTED
                                                                             06-15-00009-CR
                                                                  SIXTH COURT OF APPEALS
                                                                        TEXARKANA, TEXAS
                                                                       6/26/2015 11:45:13 AM
                                                                            DEBBIE AUTREY
                                                                                      CLERK

                   NO. 06 – 15 – 00009 – CR

                                                         FILED IN
                                                  6th COURT OF APPEALS
       IN THE SIXTH DISTRICT COURT OF               TEXARKANA, TEXAS
                                              APPEALS
                  TEXARKANA, TEXAS                6/26/2015 11:45:13 AM
                                                       DEBBIE AUTREY
                                                           Clerk

                    CHRISTIAN SIBLEY

                                Appellant,

                              v.

                   THE STATE OF TEXAS

                                   Appellee


On appeal from the County Court At Law One, Gregg County, Texas
                 Trial Court Case No. 2013-2143


             BRIEF OF THE STATE OF TEXAS


         – ORAL ARGUMENT NOT REQUESTED –

                            Carl Dorrough
                            Criminal District Attorney

                            John J. Roberts
                            Texas Bar No. 24070512
                            Assistant District Attorney
                            Gregg County, Texas
                            101 East Methvin St., Suite 333
                            Longview, Texas 75601
                            Telephone: (903) 236–8440
                            Facsimile: (903) 236–3701
                  IDENTITY OF PARTIES AND COUNSEL

      Pursuant to TEX. R. APP. P. 38.2(a)(2)(A), the State supplements Appellant’s

list of parties to the trial court’s final judgment with the names and addresses of all

appellate counsel:



Attorney for the Appellant on Appeal

Clement Dunn
140 East Tyler, Suite 240
Longview, Texas 75601

Attorney for the State on Appeal

Carl Dorrough
Criminal District Attorney
Gregg County, Texas

John J. Roberts
Texas Bar No. 24070512
Assistant District Attorney
101 East Methvin St., Suite 333
Longview, TX 75601
Telephone: (903) 236–8440
Facsimile: (903) 236–3701




                                           1
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .......................................................... 1
TABLE OF CONTENTS ......................................................................................... 2

INDEX OF AUTHORITIES .................................................................................... 3
STATEMENT OF FACTS ....................................................................................... 5

SUMMARY OF THE ARGUMENT ...................................................................... 5

ARGUMENT ............................................................................................................. 6
A. Error Was not Preserved.................................................................................. 6
B.     Court Can Rely on Pre-Sentence Report ........................................................ 8

PRAYER ................................................................................................................ 123
CERTIFICATES OF SERVICE AND COMPLIANCE .................................. 144




                                                            2
                                      INDEX OF AUTHORITIES

Cases
Texas Court of Criminal Appeals Cases

Bitterman v. State, 180 S.W.3d 139 (Tex. Crim. App. 2005).....................................7

Brewer v. State, 1270-03, 2004 WL 3093224 (Tex. Crim. App. May 19, 2004)
(mem. op., not designated for publication)...............................................................11

Brito Carrasco v. State, 154 S.W.3d 127 (Tex. Crim. App. 2005)............................8

Hayden v. State, 296 S.W.3d 549 (Tex. Crim. App. 2009)........................................8

Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004)........................................6

Mitchell v. State, 931 S.W.2d 950 (Tex. Crim. App. 1996) (plurality op.)............8, 9

Moore v. State, 295 S.W.3d 329 (Tex. Crim. App. 2009) .........................................6

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998).........................................6

Texas Court of Appeals Cases

Bell v. State, 155 S.W.3d 635 (Tex. App.—Texarkana 2005)............................10, 11

Jackson v. State, 2014 Tex. App. LEXIS 12439 (Tex. App.—Houston [14th Dist.]
2014, pet. ref’d).........................................................................................................11

Jordan v. State, 02-05-450-CR, 2006 Tex. App. LEXIS 8434 (Tex. App. – Fort
Worth 2006, no pet. h.) (mem. op.)........................................................................6,7

Statutes

Tex. Code Crim. Proc. Art. 37.07, § 3(a) (1).........................................................8, 9

Tex. Code Crim. Proc. Art. 37.07, § 3(g)..................................................................9



                                                             3
Tex. Code Crim. Proc. Art., 42.12, § 9..........................................................................11

Rules

Tex. R. App. P. 33.1(a)(1)............................................................................................6, 7

Tex. R. App. P. 33.1(a)(2)................................................................................................6




                                                          4
                            STATEMENT OF FACTS
      Christian Sibley (―Appellant‖) entered a plea to the Class A misdemeanor

offense of ―Escape from Custody‖ without an agreement with the State regarding

punishment. R.R. at 4. Because the Appellant reserved punishment for the Trial

Court, the Gregg County Community Supervision Department prepared a pre-

sentence report, which detailed the Appellant’s criminal history. R.R. at 5.

      Both sides allowed the Court to consider the pre-sentence report for purposes

of determining punishment, and neither the State nor the Appellant objected to the

content or suggested any points of error in the report. Id. at 6.

      Additionally, the State introduced an offense report, which the Court received

into evidence without objection. Id. at 6-7. At the conclusion of the punishment

hearing, following lengthy summations from both sides, the Court assessed a

sentence of three-hundred-thirty days in the county jail, a four-hundred dollar fine,

and cost of court. Id. at 13-14.




                                            5
                      SUMMARY OF THE ARGUMENT

      Because the Appellant failed to raise his complaint at trial or in a subsequent

motion for new trial, this Court should affirm the Trial Court’s judgment.

      Furthermore, the Court properly relied on its knowledge of the Appellant’s

criminal history contained in the pre-sentence report, which was offered to the court

without objection.

                                    ARGUMENT

   A. Error Was Not Preserved


      Because the Appellant failed to raise his complaint at trial or in a

      subsequent motion for new trial, error was not preserved.


      To preserve a complaint for appellate review, a party must present to the trial

court a timely request, objection, or motion that specifically states the grounds for

the desired ruling. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265

(Tex. Crim. App. 1998). Additionally, the trial court must rule on the request,

objection, or motion, or in the absence of a ruling, the complaining party must

object to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State,

138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Preservation of error is a systematic

requirement that the appellate court should review on its own motion. Moore v.

State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009).

                                            6
      A topical case is Jordan v. State, 02-05-450-CR, 2006 Tex. App. LEXIS

8434 (Tex. App. – Fort Worth 2006, no pet. h.) (mem. op.).               In Jordan, the

defendant pleaded open to the court, and at the sentencing hearing, the State asked

the court to consider the findings of a pre-sentence report in assessing punishment.

Id. The Defendant made no objection to the State’s request or to the trial court’s

consideration of the report. Id. The trial court then sentenced the defendant to

twenty-five years confinement. Id.

      The defendant appealed on the basis that the trial court erred by relying on a

pre-sentence report to assess punishment. Id. However, because he failed to raise

this issue at trial, the Court of Appeals affirmed the trial court’s judgment. Id.

      In the present case, the Appellant contends that he is entitled to a new

punishment hearing because the Trial Court based its sentence on matters not in

evidence. Specifically, the Appellant alleges that the Court’s consideration of ―the

Court’s own knowledge of Mr. Sibley through the years‖ amounts to an allusion to

something beyond matters in evidence. R.R. at 13-14.

      However, at no time during the punishment hearing did the Appellant present

to the Court a timely request, objection, or motion that specifically addressed this

complaint, as required by Texas law. Tex. R. App. P. 33.1(a)(1). Additionally, the

Appellant did not raise the complaint in a subsequent motion for new trial, an




                                            7
alternative recourse in the event there is little opportunity to object at trial.

Bitterman v. State, 180 S.W.3d 139, 143 (Tex. Crim. App. 2005).

      Therefore, because the Appellant failed to raise this issue at trial, this Court

should affirm the Trial Court’s judgment.



   B. Court Can Rely on Pre-sentence Report to Assess Punishment


      In assessing punishment, the Court properly relied on its knowledge of

      the Appellant’s criminal history contained in the presentence report,

      which was offered to the Court without objection.


      At its core, the Appellant’s argument centers on statements made by the Trial

Court in reference to extraneous-offenses committed by the Appellant in assessing

his punishment.


       Appellate courts review a trial court’s consideration of extraneous-offence

evidence under an abuse-of-discretion standard. Mitchell v. State, 931 S.W.2d 950

(Tex. Crim. App. 1996) (plurality op.). Under this standard, the appellate court shall

uphold the trial court’s ruling if it is reasonably supported by the record, is correct

under any theory of law applicable to the case, and         it is within the zone of

reasonable disagreement. Hayden v. State, 296 S.W.3d 549, 553 (Tex. Crim. App.

2009); Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).


                                            8
      The admissibility of evidence at the punishment stage of a trial is controlled

by article 37.07:


   [E]evidence may be offered by the state and the defendant as to any matter
   the court deems relevant to sentencing, including but not limited to the prior
   criminal record of the defendant, his general reputation, his character, an
   opinion regarding his character, the circumstances of the offense for which he
   is being tried, and…any other evidence of an extraneous crime or bad act that
   is shown beyond a reasonable doubt by evidence to have been committed by
   the defendant or for which he could be held criminally responsible, regardless
   of whether he has previously been charged with or finally convicted of the
   crime or act.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (1).


      In the present case, the Appellant alleges that the Court relied on facts not in

evidence when it considered in part its ―own knowledge‖ of the Appellant’s

criminal history. He further alleges that because he did not receive the required

notice of this ―knowledge‖ he was prejudiced by unfair surprise. Article 37.07, Tex.

Crim. Proc., § 3(g).


      The Appellant contends that the Court’s remarks remained vague and

obscure. But in fact, a plain reading of the record vanquishes any suggestion of

ambiguity. The Court’s assertion that it would rely on its ―own knowledge‖ equates

to nothing more than a mere mention of its awareness of extraneous-offenses

committed by the Appellant, which were discussed in the pre-sentence report

offered to the Court without objection.


                                          9
      Additionally, the fact that the pre-sentence report was not formally admitted

into evidence presents an interesting challenge to the Appellant’s position that the

trial court should restrict its consideration to facts in evidence. This Court

confronted a similar issue in Bell v. State, 155 S.W.3d 635 (Tex. App.—Texarkana

2005).


      In Bell, the defendant appealed the judgment of the 188th Judicial District

Court of Gregg County on the ground that the court relied on facts not in evidence.

Id. at 636. Specifically, the court relied on a pre-sentence report (referred to in the

opinion as a ―PSI‖) which included a lengthy criminal history for the defendant. Id.

At the final punishment hearing, the trial court gave the parties the opportunity to

make any objections, deletions, or additions to the report. Id. at 637. The Defendant

objected on the basis that the criminal history section of the report was uncertified

and therefore amounted to inadmissible hearsay. Id. The trial court overruled the

defendant’s objection. Id.


         On appeal, Bell argued in part that the trial court erred in assessing

punishment by considering the contents of the pre-sentence report because the

report was not formally admitted into evidence. Id. at 639. This Court affirmed the

trial court’s judgment because while Bell did object to hearsay statements contained

in the report, he failed to specifically object to the Court’s consideration of facts not



                                           10
formally admitted into evidence. Id. Additionally, regarding a trial court’s reliance

on pre-sentence reports not introduced into evidence, this Court reasoned as

follows:


      Based on Tex. Code Crim. Proc. Ann. art. 42.12, § 9’s restriction to access to
      the information contained in the PSI, we feel the better practice is to not
      admit the PSI into evidence. Such practice, in and of itself, should not restrict
      the parties’ access to that information or the judge’s consideration of that
      information in assessing punishment.

Id.

         This opinion aligns with holdings in similar cases that emphasize the fact that

the purpose of a pre-sentence report is to fully inform the trial court of the

circumstances of the offense, the defendant’s background, education, prior offenses,

and prospects for rehabilitation. Brewer v. State, 1270-03, 2004 WL 3093224 at *2-

3 (Tex. Crim. App. May 19, 2004) (mem. op., not designated for publication).

While not precedent, Brewer illustrates the diminutive value in preparing a pre-

sentence report if the trial judge cannot consider the information within it. Jackson

v. State, 2014 Tex. App. LEXIS 12439 (Tex. App.—Houston [14th Dist.] 2014, pet.

ref’d) (citing Brewer, at *3).


         So, if the purpose of a pre-sentence is to fully inform the trial judge before

assessing punishment, it seems counterintuitive, if not impossible for the judge to

disregard her first-hand knowledge of the very facts contained in the report.



                                             11
      Therefore, the Court properly relied on its knowledge of the Appellant’s

criminal history contained in the presentence report, which was offered to the Court

without objection.


                                 CONCLUSION
      As in Bell, the Appellant in the present case did not raise his objection at the

trial court level, and therefore, he is barred from asserting the claim on appeal.

Furthermore, read in proper context, a reasonable interpretation of the Court’s

statements reveal nothing more than a harmless reference to its personal knowledge

of the facts contained in the pre-sentence report, which was offered to the Court

without objection.




                                         12
                                    PRAYER

     It is submitted that all things are regular, and the State prays that the sentence

be Affirmed.

                                       Respectfully Submitted,




                                       /s/_John Roberts
                                       John J. Roberts
                                       Texas Bar No. 24070512
                                       Assistant District Attorney
                                       101 East Methvin St., Suite 333
                                       Longview, TX 75601
                                       Telephone: (903) 236–8440
                                       Facsimile: (903) 236–3701
                                       John.Roberts@co.gregg.tx.us




                                         13
                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing has been
forwarded to all counsel of record by certified mail, return receipt requested and/or
facsimile to:

      Clement Dunn
      140 East Tyler, Suite 240
      Longview, Texas 75601

this 25th day of June, 2015.

                                              /s/_John Roberts
                                              John Roberts
                                              Assistant District Attorney

                      CERTIFICATE OF COMPLIANCE

      I certify that the BRIEF OF THE STATE OF TEXAS, exclusive of the

following: caption, identity of parties and counsel, table of contents, index of

authorities, statement of facts, summary of the argument, argument, prayer,

certificates of service and compliance contains 2,071 words, according to Word

software.


                                              /s/_John Roberts
                                              John Roberts
                                              Assistant District Attorney




                                         14
