                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00334-CR
                              NO. 02-10-00335-CR


OSWALDO JAVIER REYES                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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         FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                                   OPINION
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                                 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


                                         2
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


                                         3
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


      1
        Although in his brief Reyes states that the statutes designed to implement
his right to counsel ―may‖ provide ―a statutory right to counsel beyond what is
mandated by‖ federal and this State’s constitutions, he does not provide an
argument or cite any binding authority for this position. Furthermore, Reyes
never argues that the Texas constitutional rights he cites provide greater
protection than their federal counterparts. We therefore will address the Fifth and
Sixth Amendment arguments that Reyes brings as including the Texas
constitution and statutory rights he addresses in his brief.
      2
         Reyes’s prayer for relief is peculiar. If this court were to hold that the
resolution of this case required a new punishment hearing only, then, once
remanded, the trial court would still possess the statutory authority to order a new
PSI. See Tex. Code Crim. Proc. Ann. art. 42.12 § 9(a) (West Supp. 2011). The
dissent takes issue with our position that Reyes’s prayer is peculiar, but it seems
that if this court were to hold that Reyes’s case should be remanded, the more
logical relief would be to request that this court remand back to the time of the
infraction prior to Reyes’s formal entry of guilt. Furthermore, and in a concession
contrary to his position, even Reyes admits in his brief that there is authority that

                                          4
      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

stands for the proposition that counsel is not required to be present during a
presentence investigation that is ordered after the formal entry of guilt.


                                          5
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,


                                          6
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 (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 (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


                                         7
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 him

to have objected at the moment the trial court considered his PSI report.3 As

Reyes puts it, the rights he complains of that were violated are ―so fundamental[4]

to the proper functioning of our adjudicatory process as to enjoy special

protection in the system.‖

      A.    General Preservation Rules

      As a general rule, to preserve a complaint for our review, a party must

have presented to the trial court a timely request, objection, or motion that states

the specific grounds for the desired ruling if they are not apparent from the

context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v.

State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). An objection must be

      3
        Reyes’s earliest objection to the trial court’s consideration of the PSI
report came in his motion for new trial, one month after the trial court pronounced
his sentences at the punishment hearing. In his motion, Reyes complained only
of a Sixth Amendment violation. For the first time on appeal, Reyes also brings a
Fifth Amendment complaint.
      [4]
        This court has already recognized the movement to stray from the use of
the term ―fundamental,‖ to denote a right that requires no preservation of error in
order to claim a violation of such a right on appeal. See Parker v. State, No. 02-
11-00032-CR, 2011 WL 5984539, at *2 n.4 (Tex. App.—Fort Worth Dec. 1, 2011,
no pet.) (mem. op., not designated for publication). But because Reyes uses that
term in a manner consistent with a number of cases that use the term and
because the rules of evidence use the term, we will use it as well. See Tex. R.
Evid. 103(d).


                                         8
made as soon as the basis for the objection becomes apparent. Tex. R. Evid.

103(a)(1); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (―We

have consistently held that the failure to object in a timely and specific manner

during trial forfeits complaints about the admissibility of evidence.‖). This gives

the trial judge and the opposing party an opportunity to correct the error at a time

when the judge is in the best position to take testimony, if necessary; consider

counsels’ arguments; and rule on the objection in the context of the present

proceeding. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).

Further, the trial court must have ruled on the request, objection, or motion, either

expressly or implicitly, or the complaining party must have objected 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). A reviewing court should not address the

merits of an issue that has not been preserved for appeal. Ford v. State, 305

S.W.3d 530, 532 (Tex. Crim. App. 2009).

      In the absence of proper procedural perfection of error, the only type of

errors that may be raised for the first time on appeal are complaints that the trial

court disregarded an absolute or systemic requirement or that the appellant was

denied a waivable-only right that he did not waive. Bessey v. State, 239 S.W.3d

809, 812 (Tex. Crim. App. 2007); Mendez, 138 S.W.3d at 340–41; Marin v. State,

851 S.W.2d 275, 280 (Tex. Crim. App. 1993), overruled on other grounds by

Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997).




                                         9
      Therefore, because Reyes failed to procedurally perfect his objection to

the trial court’s consideration of the PSI report by objecting when the PSI report

was introduced at trial or by objecting to the PSI report when Reyes testified to

contents of the PSI report, we are prohibited from considering his assignment of

error unless the admission of the PSI report violated a systemic or absolute

requirement or Reyes did not forfeit a right that was ―waivable only.‖ Mendez,

138 S.W.3d at 340–41.

      B.     The Rights Reyes Complains of Are Neither Systemic Nor
             Absolute Requirements

      Recognized as being absolute, systemic requirements are not necessarily

constitutional. Hall v. State, 303 S.W.3d 336, 341 (Tex. App.—Amarillo 2009,

pet. ref’d). Systemic or absolute requirements include, but are not limited to,

personal jurisdiction, subject-matter jurisdiction, a penal statute’s compliance with

the separation of powers section of the state constitution, a constitutional

requirement that a district court conduct its proceedings at the county seat, a

constitutional prohibition against ex post facto laws, and certain constitutional

restraints on the comments of a judge. Saldano, 70 S.W.3d at 888–89.

      Systemic requirements are to be observed even without partisan request

and cannot lawfully be avoided even with partisan consent. Sanchez v. State,

120 S.W.3d 359, 366 (Tex. Crim. App. 2003).          Therefore, an appellant may

complain that an absolute requirement or prohibition was violated, and the merits




                                         10
of his complaint on appeal are not affected by the existence of a waiver or

forfeiture at trial. Id.

       The Sixth Amendment guarantees that ―[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his

defence.‖ U.S. Const. amend. VI; see Gideon v. Wainwright, 372 U.S. 335, 339,

83 S. Ct. 792, 794 (1963). The Sixth Amendment right to counsel applies in all

state criminal prosecutions in which the defendant is accused of a felony. Id. at

342; 83 S. Ct. at 795. Once the adversarial judicial process has been initiated,

the Sixth Amendment guarantees a defendant the right to have counsel present

at all ―critical‖ stages of the criminal proceeding. Montejo v. Louisiana, 556 U.S.

778, 129 S. Ct. 2079, 2085 (2009); Hughen v. State, 297 S.W.3d 330, 334 (Tex.

Crim. App. 2009), cert. denied, 130 S. Ct. 3291 (2010). Interrogation by the

police or a state actor acting on behalf of the police, after charges have been

filed, is considered to be a critical stage. Brewer v. Williams, 430 U.S. 387, 398,

97 S. Ct. 1232, 1239 (1977); Hughen, 297 S.W.3d at 334.

       The Fifth Amendment of the United States Constitution provides that ―[n]o

person . . . shall be compelled in any criminal case to be a witness against

himself.‖    U.S. Const. amend. V.    As a prophylactic protection of this Fifth

Amendment right, law enforcement officials, before questioning a person in

custody, must inform a defendant that he has the right to remain silent and that

any statement he makes may be used against him in court. Miranda v. Arizona,




                                        11
384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966); Ramos, 245 S.W.3d 410, 418

(Tex. Crim. App. 2008).

      This State’s corollary to Miranda warnings is found in Texas Code of

Criminal Procedure article 38.22. Tex. Code Crim. Proc. Ann. art. 38.22, § 2

(West 2005). Article 38.22 sets out the requirements for the admission of an

accused’s statements.       Under Article 38.22, written statements are not

admissible unless it is shown on the face of the statement that the appellant

received the appropriate warnings (1) that the accused has the right to remain

silent, (2) that anything he says may be used against him at his trial or in court,

(3) that he has the right to have an attorney be present and advise him during

questioning, (4) that an attorney will be provided before questioning if he cannot

afford one, (5) and that he has the right to terminate the interview at any time. Id.

The face of the statement must also show that the accused waived all these

rights. Id.

      As a procedural safeguard, a defendant has at least two opportunities to

seek redress for any alleged violation of these rights. Hall, 303 S.W.3d at 342.

First, a defendant may file a pretrial motion to suppress evidence and have it

heard and ruled upon before trial. Tex. Code Crim. Proc. Ann. art. 28.01, § 1(6)

(West 2006).    A motion to suppress is a specialized objection regarding the

admissibility of evidence. Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim.

App. 1981) (op. on reh’g). Such a motion is the proper remedy when evidence is

illegally obtained in violation of a defendant’s rights. Hall, 303 S.W.3d at 342;


                                         12
Wade v. State, 814 S.W.2d 763, 764 (Tex. App.—Waco 1991, no pet.) (citing

Jackson v. State, 717 S.W.2d 713, 715 (Tex. App.—San Antonio 1986, pet. ref’d,

untimely filed)). Second, a defendant can always object to the admission of the

evidence at the time it is offered at trial. Tex. R. Evid. 103(a)(1); see Holmes v.

State, 248 S.W.3d 194, 199 (Tex. Crim. App. 2008). Under either safeguard, the

accused is empowered by statute to have his counsel seek redress of any Fifth

or Sixth Amendment violation or a failure to comply with article 38.22 during a

post-indictment interrogation before there is any possibility the violation might

affect his ability to receive a fair trial. Hall, 303 S.W.3d at 342 & n.10.

      Given that the court of criminal appeals has never held that the rights

Reyes now complains of are systemic or absolute and given the procedural

safeguards in place which are by nature invoked by the party and can even be

avoided by a party’s own consent in the event of a violation of these rights, we

conclude that the rights Reyes complains of are not systemic or absolute rights.

      C.     The Trial Court’s Consideration of a PSI Report Is Not a
             Waivable-Only Right

      Waivable-only rights are rights that cannot be waived merely by omission.

Instead, those rights can only be waived by affirmative acts of commission.

Waivable-only rights include the right to assistance of counsel at trial, the right to

trial by jury, and the right of appointed counsel to have ten days of trial

preparation. See Aldrich v. State, 104 S.W.3d 890, 895–96 (Tex. Crim. App.




                                          13
2003); see also Williams v. State, 252 S.W.3d 353, 355 (Tex. Crim. App. 2008);

Saldano, 70 S.W.3d at 888.

        Although the court of criminal appeals has yet to expressly decide whether

evidence introduced at trial obtained in violation of an accused’s Sixth

Amendment right to counsel or an accused’s Fifth Amendment right against self-

incrimination during post-indictment interrogation is ―waivable only,‖ the court’s

opinion in Swain v. State, 181 S.W.3d 359 (Tex. Crim. App. 2005) is instructive in

our determination of what is required to procedurally perfect such an alleged

error. In Swain, the defendant asserted on appeal that the police violated his

right to counsel under the Fifth and Sixth Amendments when they continued to

question him after the accused had appeared before a magistrate and requested

counsel be appointed. Id. at 365. In his written motion to suppress submitted to

the trial court, the accused asserted a violation of his right to counsel and his

right   against   self-incrimination   under   the   Fifth,   Sixth,   and   Fourteenth

Amendments of the United States Constitution and article one, sections 10 and

19 of the Texas Constitution. Id. But because the accused’s global statements

consisting of little more than citations to constitutional and statutory provisions

failed to assert a specific complaint, the Swain court held that the accused’s

―global statements in his pretrial motion to suppress were not sufficiently specific

to preserve the arguments he [was making] on appeal‖ under rule 33.1 of the

Texas Rules of Appellate Procedure. Id.; see also Sabedra v. State, No. 05-03-

01709-CR, 2005 WL 1155068, at *2 (Tex. App.—Dallas May 17, 2005, pet.


                                          14
dism’d, untimely filed) (not designated for publication) (failure to make a specific

objection at trial that admission of tape recording violated Sixth Amendment right

to counsel forfeited point on appeal).

      Following the Swain court, the Amarillo court of appeals has held that the

defendant failed to preserve for appellate review his claim that he had the right to

have counsel present during post-indictment, defendant-initiated interrogations,

where defendant failed to make timely objection to admission of his inculpatory

statements. Hall, 303 S.W.3d at 343. And in a related case, this court in the

unpublished case of Fisher held that the defendant failed to procedurally perfect

his complaint that statements contained in his PSI report violated the

Confrontation Clause of the Sixth Amendment. Fisher, 2005 WL 994740, at *1.

      Based upon these precedents and the procedural safeguards in place

discussed above, we conclude and hold that in order to procedurally perfect for

our review a trial court’s consideration of a PSI report that is obtained in alleged

violation of a defendant’s Fifth Amendment right against self-incrimination; his

Texas constitution article I, section 10 right to counsel; and his Sixth Amendment

right to have counsel present when a probation officer questions him during

preparation of the PSI report, the defendant must object to the trial court’s

consideration of the PSI report when it is considered by the trial court. Reyes did

not do so. Thus, having failed to object to the trial court considering the PSI

report, Reyes failed to procedurally perfect these arguments and has forfeited

them for our review.


                                         15
       The dissent takes issue with our recital of the law that the right to counsel

at trial cannot be forfeited but must affirmatively be waived. Dissent op. at 5–6.

The dissent contends that this articulation of the law is at conflict with our

holding. A study of caselaw, however, demonstrates that the right to counsel is

not a sweepingly broad right that swallows all procedurally forfeitable rights that

are tangentially related to Fifth and Sixth Amendment rights to counsel. See

Swain, 181 S.W.3d at 365 (holding that defendant failed to preserve for appellate

review his claim that his oral statement to detective and investigator and his third

written statement were obtained in violation of his right to counsel where on the

motion to suppress, defendant failed to complain about being questioned after

asserting his right to counsel and instead simply objected that his statements

were inadmissible because the police illegally arrested him and failed to comply

with statutory requirements); see also Hall, 303 S.W.3d at 344–45 (holding that

defendant failed to preserve for appellate review claim that he had right to have

counsel present during post-indictment, defendant-initiated interrogations where

defendant failed to make timely objection to admission of his inculpatory

statements). Compare Marin, 851 S.W.2d at 279 (―Rights which are waivable

only, as well as absolute systemic requirements and prohibitions, cannot be

made subject to rules of procedural default because, by definition, they are not

forfeitable.‖).

       The dissent seems to address the semantics of the language enunciated in

these cases.      This is understandable given that the right to counsel is often


                                         16
described as a fundamental right that is ―waivable only.‖ See Garcia v. State,

149 S.W.3d 135, 141 (Tex. Crim. App. 2004) (reasoning that certain rights, such

as the right to counsel, are implemented as a matter of course unless the

defendant takes affirmative action to prevent such implementation). But there is

a difference between the denial of a certain right engulfed by the right to counsel

versus evidence introduced at trial that allegedly had been obtained in violation

of that right.   While the right to counsel, including most notably the right to

effective assistance of counsel, is not subject to forfeiture, cases like this case,

that have dealt with the issue of evidence introduced at trial that was allegedly

obtained in violation of the right to counsel, have treated the issue as one falling

squarely within appellate rules of forfeiture or procedural default. See Robinson

v. State, 16 S.W.3d 808, 813 (Tex. Crim. App. 2000) (holding that defendant was

not procedurally barred from claiming ineffective assistance of trial counsel on

direct appeal). Compare Hall, 303 S.W.3d at 336 (holding that defendant failed

to preserve for appellate review claim that he had right to have counsel present

during post-indictment, defendant-initiated interrogations where defendant failed

to make timely objection to admission of his inculpatory statements).

      As stated above, the policy behind treating evidence obtained in violation

of ―fundamental‖ rights equal to other evidentiary matters is that ―objections

promote the prevention and correction of errors.       When valid objections are

timely made and sustained, the parties may have a lawful trial. They, and the

judicial system, are not burdened by appeal and retrial. When a party is excused


                                        17
from the requirement of objecting, the results are the opposite.‖ Saldano, 70

S.W.3d at 887. Moreover, rights once thought to be ―waivable only‖ actually

require an objection at trial. See Gonzalez v. State, 8 S.W.3d 640–45 (Tex.

Crim. App. 2000) (holding that requiring a defendant to timely raise a violation of

Fifth Amendment’s prohibition regarding multiple punishments in the trial court

serves legitimate state interests and is consistent with the underlying policies of

the general rules of procedural default). On these points, the court of criminal

appeals has consistently held that the failure to object in a timely and specific

manner during trial forfeits complaints about the admissibility of evidence.

Mendoza v. State, 552 S.W.2d 444, 450 (Tex. Crim. App. 1977) (trial court did

not commit fundamental error by allowing testimony that denied defendant

federally guaranteed constitutional rights; defendant was required to object to

preserve this error).   This general principle is even true when evidence is

obtained in violation of what otherwise would be considered ―fundamental.‖ See

Swain, 181 S.W.3d at 365; see also Gauldin v. State, 683 S.W.2d 411, 413 (Tex.

Crim. App. 1984) (failure to preserve error regarding admitted statements

obtained in violation of Miranda when trial counsel failed to obtain ruling on

motion to suppress statements), overruled on other grounds by State v. Guzman,

959 S.W.2d 631, 634 (Tex. Crim. App. 1998). We overrule both of Reyes’s

points.




                                        18
                                IV. CONCLUSION

      Having overruled Reyes’s two points, we affirm the trial court’s judgments.




                                                  BILL MEIER
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: February 9, 2012




                                       19
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00334-CR
                              NO. 02-10-00335-CR


OSWALDO JAVIER REYES                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

         FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

                                     ----------

                           DISSENTING OPINION

                                     ----------

      Respectfully, I cannot join the majority opinion. Despite its conscientious

consideration of Appellant’s issues as perceived by the majority and despite the

majority’s thorough examination of the record, I do not believe that the majority

opinion addresses the issues actually raised by Appellant. That is, I believe that

the majority misunderstands Appellant’s complaints.
      The majority appears to believe that Appellant’s issues are based on the

admissibility of a presentence investigation report (PSI) or the authority of the

trial court to order or consider a PSI. In a footnote, the majority finds Appellant’s

prayer for relief to be ―peculiar‖ because ―once remanded, the trial court would

still possess the statutory authority to order a new PSI.‖ 1 The majority candidly

admits that it is ―at a loss to understand how the failure to contemporaneously

object to the trial court’s consideration of a PSI . . . is affected by the timing of the

State’s alleged infraction.‖2

      Clearly, the majority does not understand the issue. The issue is whether

a criminal defendant may be questioned at a critical stage of the proceeding

when he is represented by counsel but without advising the attorney who

represents him. A concise recitation of the facts will be helpful:

1.    Appellant was indicted on February 26, 2010, in two separate indictments
      on aggravated assault of a family member by shooting Jesika and
      aggravated assault of a family member by threatening his father with a
      deadly weapon.

2.    By at least October 9, 2009, Appellant’s attorney notified the State and the
      trial court that he would be entering an open plea of guilty in a bench trial.

3.    On January 21, 2010, Appellant’s attorney again appeared for him and
      indicated Appellant’s intention to plead guilty, and the case was passed to
      another setting.

4.    On April 9, 2010, counsel again appeared for Appellant and again informed
      the trial court that Appellant intended to plead guilty.

      1
       Majority op. at 4 n.2.
      2
       Id. at 6.


                                           2
5.    On that date the trial court told Appellant’s attorney that Appellant’s pleas
      of guilty would be accepted at the punishment hearing set for May 28,
      2010.

6.    On May 27, 2010, the day before the punishment hearing, a probation
      officer conducted a presentence investigation interview of Appellant at the
      Denton County Jail.

7.    No one notified Appellant’s attorney that the probation officer was going to
      interview Appellant in the jail.

8.    Appellant did not waive his right to have counsel present during
      questioning.

9.    Both the prosecutor and the defense attorney were given a copy of the
      PSI.

10.   Appellant testified on his own behalf at the trial.

11.   The State used the PSI to question Appellant about his intent to kill Jesika
      when his testimony differed from the PSI.

      As in Estelle v. Smith,3 the trial court, not the State, sent the officer to

interview Appellant. No one notified Appellant’s lawyer, who had already made

at least three appearances for Appellant, that anyone would be questioning

Appellant, who was in jail. No one told Appellant that he had a right to remain

silent or the right to have counsel present pursuant to the Fifth and Sixth

Amendments to the Constitution of the United States. Although a copy of the PSI

resulting from the questioning of Appellant by the probation officer was provided




      3
       451 U.S. 454, 456–57, 101 S. Ct. 1866, 1870 (1981).


                                          3
to Appellant, it was also provided to the State,4 who used it as the basis of its

cross-examination of Appellant. Indeed, the probation officer asked Appellant

questions based on information provided to him by the district attorney’s office.

      Appellant’s complaint is that he was denied his Sixth Amendment right to

counsel, not that the trial court had no authority to order the PSI. He argues that

objection to the PSI was not required to preserve his Sixth Amendment

protection. The Sixth Amendment right to counsel attaches ―automatically‖ at the

initiation of adversary criminal proceedings.5 The fundamental nature of the right

to counsel makes it obligatory on the states by the due process clause of the

Fourteenth Amendment.6

      Although the trial court has the authority to order a PSI—which I believe

permits ex parte communication with the trial court, private investigation into facts

affecting sentencing that are often hearsay upon hearsay, improper opinion

expressed for the purpose of influencing the trial court, and denial of

confrontation and cross-examination of declarants providing the PSI information

to the trial court—the trial court has no authority to require the defendant to


      4
        See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(d), (f) (West Supp. 2011)
(requiring that the defense have access to the PSI and that the State have
access to ―any information made available to the defendant‖).
      5
       Davis v. United States, 512 U.S. 452, 456–57, 114 S. Ct. 2350, 2354
(1994); Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App.), cert. denied,
516 U.S. 832 (1995).
      6
       Gideon v. Wainwright, 372 U.S. 335, 343–44, 83 S. Ct. 792, 796 (1963).


                                         4
speak with the probation officer.7 A remand would not deprive Appellant of his

Fifth Amendment right to remain silent, nor would it deprive him of his Sixth

Amendment right to seek the advice of counsel in deciding whether to speak to

the probation officer. Neither the trial court, nor the probation officer, nor his own

lawyer can compel a defendant in a criminal case to give up his right to remain

silent.

          Appellant argues that because the Fifth and Sixth Amendment rights must

be waived personally by a defendant and cannot be waived by counsel, those

rights, consequently, cannot be waived by counsel by procedural default. 8

          Additionally, the State brings out the point that there is no evidence that

the trial court used the PSI. Rather, it was used to gain admissions and to

provide information for the prosecution to use in cross-examination of Appellant

in the punishment phase of the trial. But it was admitted into evidence with no

objection.     That fact is uncontroverted, but neither is it the issue raised by

Appellant.

          The majority states that ―[w]aivable-only rights include the right to

assistance of counsel at trial . . . ,‖9 but the majority does not address the fact


          7
      See Mitchell v. United States, 526 U.S. 314, 325–26, 119 S. Ct. 1307,
1313 (1999); Estelle, 451 U.S. at 462–63, 101 S. Ct. at 1873; Carroll v. State, 42
S.W.3d 129, 132 (Tex. Crim. App. 2001).
          8
          See Marin v. State, 851 S.W.2d 275, 278–79 (Tex. Crim. App. 1993).
          9
          Majority op. at 13.


                                           5
that Appellant was denied the assistance of counsel during trial when the

representative of the court, the probation officer, knowing that Appellant was

represented by counsel, interviewed Appellant without warning him of his right

not to speak to the officer, without warning him that he had the right to have his

attorney present, and without giving notice to Appellant’s counsel of the

interview.

      Because the majority fails to address the issue actually argued by

Appellant and because the majority opinion turns on a question different from

that raised by Appellant, I must respectfully dissent from the majority opinion.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PUBLISH

DELIVERED: February 9, 2012




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