                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00431-CR


RAUL RESENDEZ HERRERA                                              APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE


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      FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                    TRIAL COURT NO. 1322964D

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                           DISSENTING OPINION

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      I respectfully dissent. In my view, the Majority Opinion misapplies the law

and fails to apply the proper standard of review.

      Appellant Raul Resendez Herrera entered an open plea of guilty to the

offense of aggravated sexual assault of a child under fourteen years of age; the

victim was Herrera’s own step-granddaughter A.O. The trial court conducted a

punishment hearing.     The trial court took judicial notice of the presentence
investigation   report   (PSI),   which   included   an   approximately    half-page

statement—entitled “victim impact statement”—from then sixteen-year-old A.O.

In it, A.O. expressed the effect of her step-grandfather’s abuse and her opinion

that he should “go to prison.” The trial court asked Herrera’s counsel whether he

had been given an opportunity to review the PSI, and he responded that he had.

Herrera did not object to any portion of the PSI. The State called the victim’s

father who testified without objection that the victim would be better off if Herrera

was incarcerated. Herrera called five witnesses who testified that if Herrera were

placed on probation, they would help him successfully comply with the terms and

conditions imposed.      The trial court sentenced Herrera to twenty-five years’

confinement.

      Herrera filed a motion for new trial asserting newly-discovered evidence.

The evidence he asserts is newly discovered is a change in A.O.’s opinion that

he should be imprisoned to an opinion that he should be placed on probation.

A.O.’s handwritten statement to this effect is attached to his motion for new trial;

it also asserts that she tried to drop the charges against Herrera but was unable

to do so.

      The Majority Opinion misapplies the law because although A.O.’s

statement in the PSI is entitled “victim impact statement,” it was not generated

under the victim-impact statute but instead was obtained under the PSI statute.

Compare Tex. Code Crim. Proc. Ann. art. 56.03 (West Supp. 2015) (governing

victim-impact statements), with id. art. 42.12, § 9(a) (West Supp. 2015)


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(governing PSIs), and Carr v. State, No. 12-04-00165-CR, 2005 WL 2461147, at

*1–2 (Tex. App.––Tyler Oct. 5, 2005, no pet.) (mem. op., not designated for

publication) (rejecting notion that victim’s letter to trial court judge was improperly

considered as part of the PSI). The law is well-settled that the PSI statute is

broadly worded to allow inclusion in the PSI of any information relating to the

defendant or the offense. See, e.g., Fryer v. State, 68 S.W.3d 628, 632 (Tex.

Crim. App. 2002). And, contrary to the Majority Opinion’s holding, the right of

confrontation does not apply to information contained in a PSI. See Stringer v.

State, 309 S.W.3d 42, 48 (Tex. Crim. App. 2010) (holding that when a PSI is

used in a noncapital case in which the defendant has elected to have the judge

determine sentencing, Crawford1 does not apply). The Texas Court of Criminal

Appeals explained in Stringer that to hold otherwise would “require a trial judge to

hold a mini-trial for sentencing and would thwart the purpose of the PSI as a tool

for the court to use in determining punishment.” Id. Thus, Herrera possessed no

right to cross-examine the victim of his offense concerning her punishment

opinion set forth in the PSI; his remedy was to object to her punishment opinion’s

being included in the PSI and to request that the trial court not consider it. He did

not do so. Because––contrary to the majority’s holding––Herrera possessed no

right to cross-examine the victim concerning the information she provided in the

PSI, it is nonsensical to hold that he is entitled to a hearing to do so.


      1
       Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).


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      The Majority Opinion also fails to apply the proper standard of review

because when examining a trial court’s denial of a hearing on a motion for new

trial, we review for an abuse of discretion. See, e.g., Smith v. State, 286 S.W.3d

333, 339 (Tex. Crim. App. 2009); Reyes v. State, 849 S.W.2d 812, 815 (Tex.

Crim. App. 1993). We will reverse for a hearing on a motion for new trial only

when the trial judge’s decision was so clearly wrong as to lie outside that zone

within which reasonable persons might disagree. Smith, 286 S.W.3d at 339. A

hearing on a motion for new trial is “not an absolute right,” and a trial court does

not abuse its discretion by denying a motion-for-new-trial hearing when the

motion fails to establish “the existence of reasonable grounds showing that the

defendant could be entitled to relief.” Id.

      Many courts, including this court, have held that a victim’s testimony

regarding what punishment should be assessed may be properly excluded from

evidence. See Hines v. State, 396 S.W.3d 706, 710 (Tex. App.—Houston [14th

Dist.] 2013, no pet.) (holding that testimony was not relevant to jury’s punishment

determination); Wright v. State, 962 S.W.2d 661, 663 (Tex. App.—Fort Worth

1998, no pet.) (same); Hughes v. State, 787 S.W.2d 193, 196 (Tex. App.—

Corpus Christi 1990, pet. ref’d) (same); Gross v. State, 730 S.W.2d 104, 105–06

(Tex. App.—Texarkana 1987, no pet.) (holding that testimony was beyond scope

of permissible lay opinion testimony). In light of this body of case law, the trial

court did not abuse its discretion by determining that Herrera’s motion for new

trial—claiming newly-discovered evidence consisting of A.O.’s changed opinion


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as to his punishment—did not establish the existence of reasonable grounds

showing that Herrera could be entitled to relief. That is, because the changed

punishment-opinion testimony proffered by A.O. could be properly excluded at

any subsequent new trial hearing, it cannot establish grounds showing Herrera’s

right to relief. See Lopez v. State, No. 04-13-00300-CR, 2014 WL 5353627, at *7

(Tex. App.—San Antonio Oct. 22, 2014, pet. ref’d) (mem. op., not designated for

publication).

      Because Herrera did not object to A.D.’s punishment opinion included in

the PSI, because Herrera possesses no right under article 56.03(e) to cross-

examine A.O. on her punishment opinion included in the PSI, and because the

trial court did not abuse its discretion by denying Herrera a hearing on his motion

for new trial based on newly discovered evidence, I would overrule Herrera’s first

issue. The Majority Opinion does not, so I respectfully dissent.



                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE


PUBLISH

DELIVERED: February 18, 2016




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