                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-05-111-CR


FRANCIS WILLIAM STRINGER                                         APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE

                                  ------------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                  ------------

                         OPINION ON REMAND

                                  ------------

                               I. INTRODUCTION

      The primary issue we address in this appeal is whether Appellant Francis

William Stringer forfeited his Confrontation Clause objection to the “Adult

Felony History” portion of his presentence investigation report (PSI). Because

Stringer placed his criminal history at issue and accepted the benefits of the

order requiring a PSI, Stringer has forfeited or is estopped from asserting a
Confrontation Clause objection to the Adult Felony History portion of his PSI.

We affirm the trial court’s judgment.

                     II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Stringer pleaded guilty to a felony and filed an application for probation.

At a January 27, 2005 plea hearing, the trial court accepted Stringer’s guilty

plea and ordered the preparation of a PSI. No record of the plea hearing exists.

Stringer’s punishment hearing was convened on March 30, 2005, after the trial

court received the PSI.       At the punishment hearing, Stringer’s counsel

specifically objected that the four paragraphs of the PSI titled, “Adult Felony

History,” violated Stringer’s Confrontation Clause Rights. 1     The trial court

overruled Stringer’s objection. The State did not present any evidence, and

Stringer did not present any evidence.

      Based on the information contained in the PSI, Stringer argued that the

trial court should grant him probation. Specifically, Stringer argued:


      1
          Appellant’s exact objection to the PSI was that

      [p]age 11 under the heading of “Adult Felony History”, that - - the
      four paragraphs under that heading, Your Honor, I would object to
      it being considered because of the Crawford versus Washington.
      It violates our right of confrontation and cross-examination because
      it’s a pending unadjudicated offense out of Dallas County, and the
      reporter, the PSI officer, is bringing evidence of accusations based
      upon a case in Dallas, and we would object . . . .


                                         2
      First, as the clerk’s record reflects, Mr. Stringer is eligible for
      probation. He’s sworn before the Court that he’s never been
      convicted of a felony.

              ....

      I would point out that in the presentence investigation, at one time
      several years ago he completed a year probation for misdemeanor
      theft. He has shown that he can accomplish things that are
      positive. His education history, he’s got two degrees, plus 30
      hours towards a Master’s degree. . . . His employment history
      shows there that he’s had - - at least the five jobs shown there,
      he’s always been a computer programmer . . . .


At the conclusion of the hearing, the trial court sentenced Stringer to nine

years’ confinement.

      In a single point, Stringer complained that the trial court erred during the

punishment phase by overruling his Confrontation Clause objection to the Adult

Felony History section of his PSI. On original submission, following precedent

from our court, we agreed with the State that Stringer had waived his objection

to the PSI by signing a specific written admonishment.2 See Stringer v. State,


      2
          The admonishment we relied upon provided:

      Joined by my attorney and in accordance with Art. 1.13 and 1.15
      of the Code of Criminal Procedure, I waive and give up my right to
      a jury, both as to my guilt and assessment of my punishment.
      Under Art. 1.15, Code of Criminal Procedure, I waive and give up
      the right to appearance, confrontation, and cross-examination of
      the witnesses, and I consent to oral and written stipulations of
      evidence.

                                        3
196 S.W.3d 249, 251–52 (Tex. App.—Fort W orth 2006) (citing Rosalez v.

State, 190 S.W.3d 770, 773 (Tex. App.—Fort Worth 2006, no pet.)), rev’d,

241 S.W.3d 52 (Tex. Crim. App. 2007); see also Hamlin v. State, Nos. 02-04-

00240-CR, 02-04-00241-CR, 02-04-00242-CR, 2005 WL 3436523, at *1

(Tex. App.—Fort Worth Dec. 15, 2005, no pet.) (mem. op., not designated for

publication) (holding appellant waived his right to object to a PSI by signing

admonishment like the one here). The court of criminal appeals held that the

written waiver applied only to guilt-innocence, not to punishment, reversed our

judgment, and remanded the case to us to first consider the other waiver

grounds asserted by the State. Stringer v. State, 241 S.W.3d 52, 59 (Tex.

Crim. App. 2007). We do so now.

III. F ORFEITURE OF C ONFRONTATION C LAUSE O BJECTION TO C RIMINAL H ISTORY IN PSI

       A. Waiver, Invited Error, and Acceptance of Benefits Doctrine

      The doctrine of invited error is properly thought of, not as a species of

waiver, but as estoppel. Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim.

App. 1999), cert. denied, 529 U.S. 1102 (2000). Waiver might usefully be

distinguished from what is sometimes called “invited error.” Id. As the court

in Prystash stated,

      If a party affirmatively seeks action by the trial court, that party
      cannot later contend that the action was error. This is not really a
      waiver of error previously committed. Rather, it is part of the

                                        4
      definition of what can constitute error, and quite reasonably defines
      error of which a party may complain as excluding those actions of
      the trial court actually sought by the party in that tribunal.

Id. (quoting George E. Dix & Robert O. Dawson, 43 Texas Practice–Criminal

Practice and Procedure § 42.141 (Supp. 1999) (footnote omitted)).3 Another

variant of estoppel is “estoppel by judgment.” That concept applies to estop

“[o]ne who accepts the benefits of a judgment, decree, or judicial order” from

denying “the validity or propriety thereof, or of any part thereof, on any

grounds; nor can he reject its burdensome consequences.” Rhodes v. State,

240 S.W.3d 882, 891 (Tex. Crim. App. 2007).

                           B. Statutory PSI Scheme

      The statutory PSI scheme provides that “[e]xcept as provided by

Subsection (g) of this section, before the imposition of sentence by a judge in

a felony case, . . . the judge shall direct a supervision officer to report to the

judge in writing.” Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a) (Vernon Supp.

2008) (emphasis added). The statute also provides that the PSI is to include

the “circumstances of the offense with which the defendant is charged, the

amount of restitution necessary to adequately compensate a victim of the


      3
      Other cases applying the invited error doctrine include McCray v. State,
861 S.W.2d 405, 409 (Tex. App.—Dallas 1993, no pet.); Mann v. State, 850
S.W.2d 740, 742 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d); Ex parte
Hargett, 827 S.W.2d 606, 607–08 (Tex. App.—Austin 1992, pet. ref’d).

                                        5
offense, [and] the criminal and social history of the defendant.” Id. (emphasis

added). Thus, when a defendant files an application for probation and requests

the trial court to assess punishment in a felony case, a trial court “shall” direct

the preparation of a PSI. Id.; Griffith v. State, 166 S.W.3d 261, 263 (Tex.

Crim. App. 2005); Whitelaw v. State, 29 S.W.3d 129, 131–32 n.13 (Tex.

Crim. App. 2000). And the PSI shall report “in writing on . . . the criminal . .

. history of the defendant.” Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a).

Nonetheless, a defendant may waive a PSI. See Griffith, 166 S.W.3d at 263

(dealing with an express waiver of PSI); Summers v. State, 942 S.W.2d 695,

696–97 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (dealing with an

implied waiver via the defendant’s failure to object to the absence of a PSI).

      The PSI was originally intended only to facilitate a trial court’s decision

on the issue of probation. See Smith v. State, 227 S.W.3d 753, 761 (Tex.

Crim. App. 2007). The court of criminal appeals has repeatedly held that a trial

court should use the PSI to determine whether the person convicted is entitled

to probation. See id. at 761 n.21 (citing McNeese v. State, 468 S.W.2d 800,

801 (Tex. Crim. App. 1971) (trial court should “use the probation officer’s

report and take into consideration all of the pertinent information to more

intelligently determine if the person convicted is entitled to probation”); Valdez

v. State, 491 S.W.2d 415, 417 (Tex. Crim. App. 1973) (same); Clay v. State,

                                        6
518 S.W.2d 550, 555 (Tex. Crim. App. 1975) (same)); see also Anderson v.

State, 896 S.W.2d 578, 580 (Tex. App.—Fort Worth 1995, pet. ref’d)

(recognizing that “[o]nce the door is opened regarding suitability for probation,

the State may inquire into any bad acts relevant to deciding appellant’s

suitability). Because the PSI was originally to be used in this context—for a

probation determination—the court of criminal appeals was not concerned that

the PSI “might contain what would be, at a formal punishment hearing, patently

objectionable as rank hearsay or evidence of an unadjudicated extraneous

offense (such as a pending indictment or an arrest record).”        Smith, 227

S.W.3d at 761.

      Subsequently, the legislature amended article 37.07, section 3(d) of the

code of criminal procedure to permit the trial court to order and to consider a

PSI in determining the punishment to be assessed. See Tex. Code Crim. Proc.

Ann. art. 37.07, § 3(d) (Vernon Supp. 2008); Smith, 227 S.W.3d at 761–62

(citing Ellison v. State, 201 S.W.3d 714, 722 (Tex. Crim. App. 2006)). This

statutory authorization of use of a PSI to assess punishment conceptually

brought PSIs out of the unique for-use-in-a-determination-of-probation-only

category of quasi-evidence that they had arguably previously occupied to within

the realm of general punishment-phase evidence. See Smith, 227 S.W.3d at

761–63.     Defendants consequently began asserting general evidentiary

                                       7
objections to PSIs; but courts, recognizing the discreet statutory scheme and

purpose of PSIs, rejected all of these objections. See, e.g., id. at 763 (holding

that a trial court, as a sentencing entity, may consider extraneous misconduct

set forth in PSI over defendant’s objection that “the extraneous misconduct has

not been shown to have been committed by the defendant beyond a reasonable

doubt” as required by the code of criminal procedure); Fryer v. State, 68

S.W.3d 628, 630–32 (Tex. Crim. App. 2002) (holding that trial court, as

sentencing entity, may consider portion of PSI containing victim impact

statement over defendant’s objection that code of criminal procedure authorizes

consideration of victim impact statement only after punishment has been

assessed); Brooks v. State, 76 S.W.3d 426, 435 (Tex. App.—Houston [14th

Dist.] 2002, no pet.) (holding that trial court, as sentencing entity, may

consider extraneous misconduct set forth in PSI over defendant’s objection that

State did not give him timely notice of its intent to introduce such misconduct

as required by the code of criminal procedure).

      That brings us to the objection asserted here: that the Adult Felony

History of Stringer’s PSI violated his Confrontation Clause rights.

             C. All Negative Statements in PSI are “Testimonial”

      Crawford v. Washington, while declining to explicitly define “testimonial,”

explained that

                                       8
      [the Confrontation Clause] applies to “witnesses” against the
      accused—in other words, those who “bear testimony.”
      “Testimony,” in turn, is typically “[a] solemn declaration or
      affirmation made for the purpose of establishing or proving some
      fact.” An accuser who makes a formal statement to government
      officers bears testimony . . . .

541 U.S. 36, 51, 124 S. Ct. 1354, 1364 (2004) (citations omitted). Cases

after Crawford have further developed the law concerning the types of out-of-

court statements that are testimonial. See, e.g., Davis v. Washington, 547

U.S. 813, 821–24, 126 S. Ct. 2266, 2273–74 (2006) (distinguishing

street-corner “nontestimonial” statements to law enforcement officers from

litigation-oriented   “testimonial”   statements   and   recognizing   that police

interrogation statements relating to past events relevant to a criminal

prosecution are “testimonial statements” for purposes of the Confrontation

Clause, in part because of their adversarial nature and, in part, because the

reasonable declarant would recognize that the statements could be used in a

future criminal prosecution); W all v. State, 184 S.W.3d 730, 742–43 (Tex.

Crim. App. 2006) (explaining that “whether a statement is testimonial under

Crawford is determined by the standard of an objectively reasonable declarant

standing in the shoes of the actual declarant”); Brooks v. State, 132 S.W.3d

702, 707 (Tex. App.—Dallas 2004, pet. ref’d) (holding that when the police are

engaged in the competitive enterprise of detecting crime, investigating crime,


                                         9
and gathering evidence for criminal prosecution, statements gathered during

their interrogations are testimonial “as a matter of law”); United States v.

Cromer, 389 F.3d 662, 675 (6th Cir. 2004) (stating that the decisive inquiry

under a Confrontation Clause objection to hearsay is “whether a reasonable

person in the declarant’s position would anticipate his statement being used

against the accused in investigating and prosecuting the crime”).

      Virtually all statements in a PSI that reflect negatively on the defendant

will constitute “testimonial” statements for Confrontation Clause purposes.

They are gathered by a state employee, a supervision officer. Tex. Code Crim.

Proc. Ann. art. 42.12, § 9(a). They are for the express purpose of use in a

probation or sentencing determination concerning the defendant. Id. art. 37.07,

§ 3(d). They are not street-corner “nontestimonial” statements but instead are

statements that a reasonable declarant would recognize, or would have been

expressly told, were for use in a probation or sentencing decision concerning

the defendant. See, e.g., Davis, 547 U.S. at 821–24, 126 S. Ct. at 2273–74.

Conversely, statements in the PSI that the defendant deems positive to him

would be nontestimonial because the statement would not be “against” the

defendant. See Crawford, 541 U.S. at 51, 124 S. Ct. at 1364 (recognizing

that [the Confrontation Clause] applies to witnesses against the accused).




                                      10
      The State in the present case concedes that the statements and

information set forth in the Adult Felony History portion of Stringer’s PSI are

“testimonial” for purposes of a Confrontation Clause analysis.

                        D. Application of Law to Facts

      We note at the outset that neither party offered Stringer’s PSI into

evidence. The code of criminal procedure does not require that the PSI be

introduced into evidence. See George E. Dix & Robert O. Dawson, 43 Texas

Practice–Criminal Practice and Procedure § 38.172. It simply provides that a

trial court may “inspect a report” or may “consider” a report. See Tex. Code

Crim. Proc. Ann. arts. 42.12, § 9(c) (inspect), 37.07, § 3(d) (consider). Thus,

technically no “evidence” or “testimony” was offered into evidence to which

Stringer could have lodged a Confrontation Clause objection. Indeed, as set

forth above, Stringer’s exact objection was to the Adult Felony History “being

considered,” not to the admission into evidence of the PSI or any portion of the

PSI. The Sixth Amendment and the rule enunciated in Crawford apply only to

attempts to admit testimony and evidence.         See U.S. Const. amend. VI

(providing that “[i]n all criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against him”); Crawford, 541 U.S. at

51, 124 S. Ct. at 1364 (addressing admissibility of wife’s out-of-court, tape-

recorded statement to police). We question how a defendant’s Confrontation

                                       11
Clause rights may be violated by statements in a document that is not admitted

into evidence.

      Nonetheless, the record before us establishes that the trial court did in

fact consider the PSI. Nothing else exists in the record that could have been

considered in the trial court’s probation and sentencing decision. And Stringer

urged the trial court to consider the PSI, except for the Adult Felony History

portion. The failure of any party to actually offer the PSI into evidence is not

fatal. See Smith, 227 S.W.3d at 757 (addressing objection to PSI although it

was never offered into evidence); Amador v. State, 221 S.W.3d 666, 673–74

(Tex. Crim. App. 2007). The fact that the PSI was not offered or admitted into

evidence, and by statute was not required to be offered or admitted into

evidence, is however demonstrative of the difficulties in superimposing

Confrontation Clause objections on information required to be in a PSI.

      To prohibit a judge from considering any portions of a PSI to which a

defendant asserts a Confrontation Clause objection would obliterate the

statutory PSI purposes and procedure.       The statutory provisions require a

judge’s consideration of a defendant’s entire “criminal and social history”—i.e.,

the good and the bad aspects of the defendant’s criminal and social history.

See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a). But Confrontation Clause

objections to negative criminal and social history statements and information

                                       12
in a PSI would limit a judge to considering only the positive statements on these

matters that are in a PSI. Thus, the fundamental and original purpose of a

PSI—to provide a judge contemplating probation for a defendant with accurate

information on factors relevant to a grant of probation—would be fatally

undermined. See, e.g., Walker v. State, 493 S.W.2d 239, 240 (Tex. Crim.

App. 1973) (explaining that “[i]t makes a great deal of sense that the judge

should have before him a thorough report of the accused’s past record and

background, when considering his motion for probation. The very purpose of

granting probation is to release a convicted defendant who shows himself

capable of adhering to certain conditions”). Otherwise, a judge would be left

with only un-Confrontation-Clause-objected-to information that was favorable

to the defendant in making the important decision of whether to grant

probation.

      In other circumstances where the PSI statutory scheme has conflicted

with the rules of evidence or with other statutory provisions—although not a

constitutional right, as here—courts have implicitly recognized the unique status

of PSIs. See, e.g., Smith, 227 S.W.3d at 761–63 (stating that extraneous

offense in PSI need not be proved beyond a reasonable doubt); Fryer, 68

S.W.3d at 630–32 (reiterating that rules of evidence do not apply to contents

of PSI and holding that victim impact statement may be contained in PSI and

                                       13
considered before sentencing); Brooks, 76 S.W.3d at 435 (stating that notice

of extraneous offense need not be given for information only in PSI). Thus, we

come to the question before us: whether a defendant who pleads guilty to a

felony, files a sworn application for probation and thereby triggers the statutory

necessity for a PSI, acquiesces in a recess for preparation of a PSI, and urges

a trial court to consider the PSI and to grant probation has forfeited any

Confrontation Clause objections to a required portion of the PSI—the

defendant’s criminal history. 4 In its second waiver argument, the State makes

this argument.    The State points out that a defendant’s ability to assert

Confrontation Clause objections to particular portions of a PSI “will allow

defendants to manipulate the sentencing system. . . . A defendant should not

be able to pick and choose on confrontation grounds” which items in the PSI

are considered by the trial court. According to the State, the defendant may

either object to the entire report or may not object at all.

      The State analogizes Stringer’s Confrontation Clause objection to the

Adult Criminal History portion of his PSI to a defendant who takes the stand




      4
       The trial court may also request that “other information relating to the
defendant or the offense” be included in the PSI. See Tex. Code Crim. Proc.
Ann. art. 42.12, § 9(a). The issue before us, however, is limited to forfeiture
of a Confrontation Clause objection to information statutorily required to be
contained in the PSI, here, criminal history.

                                       14
and testifies at punishment but seeks to avoid cross-examination in whole or

part. The State quotes Mitchell v. United States:

      The justifications for the rule of waiver in the testimonial context
      are evident: A witness may not pick and choose what aspects of
      a particular subject to discuss without casting doubt on the
      trustworthiness of the statements and diminishing the integrity of
      the factual inquiry. As noted in Rogers, a contrary rule “would
      open the way to distortion of facts by permitting a witness to
      select any stopping place in the testimony.” It would, as we said
      in Brown, “make of the Fifth Amendment not only a humane
      safeguard against judicially coerced self-disclosure but a positive
      invitation to mutilate the truth a party offers to tell.” The illogic of
      allowing a witness to offer only self-selected testimony should be
      obvious even to the witness, so there is no unfairness in allowing
      cross-examination when testimony is given without invoking the
      privilege.

526 U.S. 314, 322, 119 S. Ct. 1307, 1312 (1999) (citations omitted).

      The State also points out that the statutory PSI scheme provides a

remedy if the defendant believes that the PSI contains factual inaccuracies.

See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(e).          The remedy is that a

defendant, with the approval of the judge, may introduce testimony or other

information alleging a factual inaccuracy in the investigation or in the PSI. Id.

And, likewise, because the statute requires that a defendant receive a copy of

the PSI no later than forty-eight hours before sentencing, a defendant has ample

time to file a motion for continuance of the punishment hearing for the purpose

of issuing subpoenas for those persons named in the PSI whom he wishes to


                                        15
cross-examine. See id. art. 42.12, § 9(d). Thus, the State argues that the

statutory scheme itself provides a remedy for defendants like Stringer.

      The facts of this case do not fall squarely within the four corners of any

of the waiver cases, the invited error cases, or the acceptance of benefits

cases. But, the circumstances here seem analogous to aspects of each of

these three categories of cases. Stringer pleaded guilty to a felony, filed an

application for probation swearing that he had never before been convicted of

a felony in Texas, and thereby triggered the trial court’s mandatory statutory

duty to order a PSI. Id. art. 42.12, § 9(a); Griffith, 166 S.W.3d at 263. The

duty to direct the preparation of a PSI under these circumstances is mandatory,

subject to certain exceptions. See Tex. Code Crim. Proc. Ann. art. 42.12,

§ 9(a) (providing that “[e]xcept as provided by Subsection (g) . . . . before the

imposition of sentence by a judge in a felony case, . . . the judge shall direct a

supervision officer to report to the judge”) (emphasis added); cf. id. art. 37.07,

§ 3(d) (providing that “[w]hen the judge assesses the punishment, he may order

an investigative report”) (emphasis added). The trial court, in compliance with

the law, ordered a PSI; Stringer at least acquiesced in the recess of his

punishment hearing for purposes of preparation of the PSI. Also, the record

contains an order for psychological testing away from jail mandating a

psychosexual evaluation on Stringer as part of the PSI.         When Stringer’s

                                       16
punishment hearing convened, Stringer objected to the Adult Felony History of

the PSI on Confrontation Clause grounds and relied upon the remaining portions

of the PSI to urge the trial court to grant probation. Stringer forfeited or is

estopped from asserting his Confrontation Clause objection to the Adult

Criminal History portion of the PSI for three main reasons.

      First, Stringer waived his right to assert a Confrontation Clause objection

to the Adult Criminal History portion of his PSI by filing an application for

probation swearing that he had never been convicted of a felony in Texas and

by relying upon the positive information in the PSI to urge the trial court to

grant probation.   The language of the PSI statute requires the supervision

officer to report to the judge on the criminal history of the defendant. See id.

art. 42.12, § 9(a). By implication, the trial court is to consider the criminal

history of a defendant in making a probation decision. See, e.g., Smith, 227

S.W.3d at 761 n.21. By swearing that he had never been convicted of a felony

in Texas, Stringer put his criminal history at issue. See Anderson, 896 S.W.2d

at 580. By relying upon the positive portions of the PSI to urge the trial court

to grant probation, Stringer in effect elicited testimony of specific good conduct

in an attempt to show that he was suitable for probation. See id. A defendant

should not be able to seek probation, place his criminal history at issue via a

sworn pleading, rely on positive statements in the PSI and urge the trial court

                                       17
to grant probation based on such information, yet nullify the statutory

requirement that the PSI include and that the trial court consider his criminal

history by asserting a Confrontation Clause objection. Accord Mitchell, 526

U.S. at 322–23, 119 S. Ct. at 1312 (recognizing defendant waives Fifth

Amendment privilege at punishment as to the matters he himself has put in

dispute by testifying). Otherwise, the result would be that a judge is prevented

from considering the very information in the PSI that the statute implies the

judge should consider in making a probation decision.

      As the Supreme Court explained in Mitchell, “[t]he justifications for the

rule of waiver in the testimonial context are evident: A witness may not pick

and choose what aspects of a particular subject to discuss without casting

doubt on the trustworthiness of the statements and diminishing the integrity of

the factual inquiry.” Id. at 322, 119 S. Ct. at 1312. Although Mitchell dealt

with the waiver of a Fifth Amendment right against self-incrimination instead

of a Sixth Amendment right of confrontation and the Mitchell court dealt with

a defendant’s testimony instead of with a supervision officer’s “testimony” set

forth in a written report, the same analysis applies. A defendant may not use

portions of a witness’s testimony as a sword—here the supervision officer’s

presentence report—but then use a constitutional right as a shield to eliminate

portions of the same witness’s testimony that are unfavorable to the defendant.

                                      18
For these reasons, by filing an application for probation swearing that he had

never been convicted of a felony and by urging the trial court to grant probation

based on the positive portions of the PSI, Stringer waived, or is estopped from

asserting, a Confrontation Clause objection to the Adult Criminal History portion

of his PSI.

      Second, the facts reflect that Stringer accepted the benefits of the trial

court’s order requiring preparation of a PSI. A PSI was prepared, and Stringer

was not required to himself develop the evidence he would need for a full,

adversarial punishment hearing. This was a distinct benefit to him. He did not

need to subpoena witnesses or to gather evidence. Instead, he relied upon the

positive hearsay information in the PSI to urge the trial court to grant probation.

He specifically relied upon the result of the PSI’s ordered psychosexual testing,

arguing that “he show[ed] potentially positive responses to the treatment in

some respects.” Stringer’s acceptance of the benefits of the trial court’s order

requiring a PSI and of the PSI itself makes these circumstances akin to the

cases holding that “[o]ne who accepts the benefits of a . . . judicial order” may

not deny “the validity or propriety thereof, or of any part thereof, on any

grounds; nor can he reject its burdensome consequences.” See Rhodes, 240

S.W.3d at 891. By accepting the benefits of the order requiring a PSI, the

order requiring psychosexual testing as part of the PSI, and the results of the

                                        19
PSI, Stringer is estopped from asserting his Confrontation Clause objections to

the Adult Criminal History portion of the PSI.

      And finally, Stringer did not indicate that he believed the PSI contained

factual inaccuracies and did not move for a continuance. See Tex. Code Crim.

Proc. Ann. art. 42.12, § 9(d), (e). Stringer was entitled to comment on the PSI

and to introduce, with the approval of the judge, testimony or other information

alleging a factual inaccuracy in the PSI.    See id., art. 42.12, § 9(e).    By

accepting the benefits of the order requiring a PSI and the order requiring

psychosexual testing as part of the PSI, Stringer’s remedies concerning the

information in the PSI were statutorily limited to utilizing the statutory

procedure available to comment on the PSI or to correct a factual inaccuracy

in the PSI. Stringer is estopped from asserting a Confrontation Clause objection

to the Adult Criminal History portion of the PSI.

      Our holding is limited to cases in which a defendant pleads guilty to a

felony, files an application for probation, and asserts a Confrontation Clause

objection to a statutorily required portion of the PSI. We need not address

whether the same analysis would apply to a Confrontation Clause objection

made to a PSI ordered under article 37.07, section 3(d). See Tex. Code Crim.

Proc. Ann. art. 37.07, § 3(d). We need not address whether the same analysis

would apply to a Confrontation Clause objection made to a nonstatutorily

                                      20
required portion of the PSI. We need not address whether the same analysis

would apply to a Confrontation Clause objection to the entire PSI. We need not

address whether the Confrontation Clause applies at the punishment phase of

trial.5       And finally, we need not address—as the dissent implies—the

constitutionality of the PSI statute; no constitutional challenge to the statute

was raised in the trial court or on appeal. We simply hold, based on the facts

before us and for the reasons set forth above, that Stringer forfeited his

Confrontation Clause objection to the Adult Criminal History portion of his PSI.

We overrule Stringer’s sole issue.




          5
        Numerous federal courts, even after Crawford, have held that it does
not. See, e.g., United States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005),
cert. denied, 127 S. Ct. 129 (2006); United States v. Chau, 426 F.3d 1318,
1322–23 (11th Cir. 2005); United States v. Monteiro, 417 F.3d 208, 215 (1st
Cir. 2005), cert. denied, 546 U.S. 1202 (2006); United States v. Roche, 415
F.3d 614, 618 (7th Cir.), cert. denied, 546 U.S. 1024 (2005); United States
v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005); United States v. Fleck, 413
F.3d 883, 894 (8th Cir. 2005). The Texas Court of Criminal Appeals has not
directly decided the issue.

                                      21
                              IV. C ONCLUSION

     Having overruled Stringer’s sole issue, we affirm the trial court’s

judgment.


                                                SUE WALKER
                                                JUSTICE

PANEL: DAUPHINOT, HOLMAN, and WALKER, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: October 23, 2008




                                    22
                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                   NO. 2-05-111-CR


FRANCIS WILLIAM STRINGER                                               APPELLANT

                                          V.

THE STATE OF TEXAS                                                           STATE

                                      ------------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                      ------------

                   DISSENTING OPINION ON REMAND

                                      ------------

      The     majority   opinion   correctly   points   out that the   presentence

investigation report (PSI) statute is in direct conflict with the Constitution of the

United States.6     By statute, a PSI is an ex parte communication providing

hearsay evidence to the trial court, denying a defendant the right to confront




      6
          Majority op. at 12–13.
witnesses against him in open court.7 As the majority provides, requiring the

trial court to comply with the Confrontation Clause before considering the PSI

would “obliterate the statutory PSI purposes and procedure.” 8

      The PSI statute not only violates the Confrontation Clause; its ex parte

nature undermines our system of public trials. Nothing in our law prevents the

State’s offering a PSI into evidence through a sponsoring witness. Nothing

prevents the State’s offering a defendant’s criminal history through a

sponsoring witness. A jury assessing punishment does not require a PSI. A

jury hears witnesses and examines evidence in open court to determine the

appropriate sentence.

      In a jury trial, a jury must be instructed that they may not consider

extraneous offenses or acts of misconduct unless they believe beyond a

reasonable doubt that the defendant committed those acts and offenses.9 The

State, then, bears a burden of proof beyond a reasonable doubt when it seeks

to prove extraneous offenses at the punishment phase of a jury trial. 1 0 The


      7
      See Tex. Code Crim. Proc. Ann. arts. 37.07, § 3(d), 42.12, § 9 (Vernon
Supp. 2008).
      8
          Majority op. at 12.
      9
          Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000).
      10
           See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp.
2008).

                                      24
State is not relieved of its burden of proof merely because the trial judge

assesses punishment.

     Additionally, the protections of the Confrontation Clause apply to the

punishment phase of trial.11 In addressing reports admitted at the punishment

phase, the Texas Court of Criminal Appeals held in Russeau v. State,

            The Sixth Amendment’s Confrontation Clause provides that,
     “[i]n all criminal prosecutions, the accused shall enjoy the
     right . . . to be confronted with the witnesses against him.” This
     procedural guarantee is applicable in both federal and state
     prosecutions and bars the admission of testimonial statements of
     a witness who does not appear at trial unless he is unavailable to
     testify and the defendant had a prior opportunity to cross-examine
     him. Generally speaking, a statement is “testimonial” if it is a
     solemn declaration made for the purpose of establishing some fact.

            The reports in question contained testimonial statements
     which were inadmissible under the Confrontation Clause, because
     the State did not show that the declarants were unavailable to
     testify and appellant never had an opportunity to cross-examine
     any of them. Indeed, the statements in the reports amounted to
     unsworn, ex parte affidavits of government employees and were
     the very type of evidence the Clause was intended to prohibit. The
     trial court erred in admitting those portions of the reports that
     contained the testimonial statements.12

     Similarly, in the case now before this court, the statements in the PSI

were clearly testimonial. The State did not show that the declarants were



     11
       See Russeau v. State, 171 S.W .3d 871, 880–81 (Tex. Crim. App.
2005), cert. denied, 548 U.S. 926 (2006).
     12
          Id. (citations omitted).

                                     25
unavailable to testify, and Appellant never had an opportunity to cross-examine

any of them. Appellant preserved his confrontation objection in the trial court.

The portion of the PSI accusing Appellant of extraneous acts of misconduct

was properly objected to, and the trial court should have sustained Appellant’s

objections.

       The majority suggests that Appellant could have subpoenaed the

witnesses with personal knowledge of the hearsay contained in the PSI in order

to invoke his confrontation rights.13 In the context of article 38.071 of the

code of criminal procedure, which governs the admission of out of court

statements of a child complainant in certain circumstances, 14 the Texas Court

of Criminal Appeals has discussed this approach much more eloquently than I

can:

              Due process does not lend itself to simple, concise
       definitions. In its most basic sense due process is the impediment
       that is constitutionally imposed on governmental conduct that
       offends our fundamental rights. Relative to the protection of one’s
       liberty: “[t]he essential guarantee of the due process clauses is
       that the government may not imprison or otherwise physically
       restrain a person except in accordance with fair procedures.” In
       other words, due process is in itself essentially the same as
       fairness. Or, at the very least, due process is the vehicle used to
       arrive at fairness thereby protecting our fundamental rights.



       13
            Majority op. at 15–16.
       14
            Tex. Code Crim. Proc. Ann. art. 38.071 (Vernon Supp. 2008).

                                        26
Accordingly, “a fair trial in a fair tribunal is a basic requirement of
due process.” If legislation alters the essential fairness of a trial
then a due process violation is necessarily implicated. In Estelle v.
Williams, it was specifically stated that “[t]he right to a fair trial is
a fundamental liberty secured by the Fourteenth Amendment.” . . .

      ....

       The opinion continues with guidelines for determining
whether a particular procedure diminishes fairness and is thus
violative of due process. The court commented:

             But this Court has left no doubt that the
      probability of deleterious effects on fundamental rights
      calls for close scrutiny . . . . Courts must do the best
      they can to evaluate the likely effects of a particular
      procedure, based on reason, principle, and common
      human experience.

       Consequently, in a criminal prosecution, when viewing
legislatively authorized procedures that could be detrimental to
one’s fundamental rights, i.e., “a fair trial in a fair tribunal . . . ,”
the legislation must be closely scrutinized. Such an examination
must be “based on reason, principle, and common human
experience.”

      Scrutinizing Art. 38.071, § 2, and applying the predicates of
consideration as suggested in Estelle v. Williams, it is evident that
on its face Art. 38.071, § 2 imposes upon the defendant a
constitutionally unacceptable burden. The courts of this state and
country have never had to confront and review a trial procedure
that requires the defendant to call as a witness his accuser if he
wants to question the witness. Doing so places the defendant in
the proverbial Catch-22: call the complainant and be able to
question the witness; or alternatively, decline to do so and thereby
waive the opportunity to cross-examine the witness. Either way
the defendant is placed at a distinct and undue disadvantage.
Conversely, the prosecution is placed in the unique and
substantially advantageous position of being able to in essence

                                   27
present its evidence, then wait for the defendant to call the
complainant, thereby allowing the State to repeat the videotaped
statement. Or, by not calling the witness fail to controvert the
videotape statement. . . .

        “[R]eason, principle, and common human experience”
dictate that a jury will respond negatively to a defendant compelling
a child witness to testify after they have already seen the videotape
of the child’s allegations. The possible, if not probable, reaction of
the jury to a trial incident of this nature would be unduly prejudicial
to the defendant. Prejudice, to this extent, will create a risk that
the entire proceedings were fundamentally unfair. A risk of this
nature does not comport with the concept of due process.

       In Lee v. Illinois, the Supreme Court was concerned with both
due process and confrontation violations by an infringement upon
the right of confrontation when a non-testifying co-defendant’s
confession was admitted into evidence and considered as
substantive evidence of the defendant’s guilt. Noting initially the
historical unanimity of the court in its commitment to the
defendant’s right of confrontation and cross-examination, the Court
recognized the overlapping due process issue when it observed that
the right of confrontation and cross-examination “ ‘is an essential
and fundamental requirement for the kind of fair trial which is this
country’s constitutional goal.’ “

      The Court continues and pertinently states:

            On one level, the right to confront and
      cross-examine adverse witnesses contributes to the
      establishment of a system of criminal justice in which
      the perception as well as the reality of fairness
      prevails. To foster such a system, the Constitution
      provides certain safeguards to promote to the greatest
      possible degree society’s interest in having the accused
      and the accuser engage in an open and even contest in
      a public trial.




                                  28
             Under Art. 38.071 § 2, the essential state’s witness, the
      complainant, will be what due process and the confrontation clause
      endeavor to prevent: “unseen” and “unchallengeable” witnesses.
      Unless, of course the defendant takes the step of calling to testify
      the essential prosecution witnesses []. Nowhere and at no time in
      Anglo-American jurisprudence has an accused ever been required
      to call as a witness the accuser in order to enjoy the fundamental
      right of cross-examination. That is, until Art. 38.071 § 2. It is an
      illogical as well as unconstitutional scheme to place a defendant,
      who, again must be presumed innocent in the untenable position
      of either requiring the child to testify and thereby run the very real
      risk of incurring the wrath of the jury or forgo the right to invoke
      “‘the greatest legal engine ever invented for the discovery of
      truth.’“ 15

      Even though Long discusses the right of confrontation at the guilt phase

of trial, Rousseau makes clear that the right of confrontation applies equally at

punishment, and therefore Long’s lessons also equally apply to the punishment

phase of Appellant’s trial for the offense of possessing child pornography. The

trial court as fact finder is, like a jury, also capable of an emotional reaction.

      The majority also finds waiver, forfeiture, or estoppel.16 The majority has

established a new rule: when a defendant files an application for community

supervision, he waives or forfeits his right to assert a Confrontation Clause

objection to the PSI or is estopped from asserting it. That is, a defendant must



      15
         Long v. State, 742 S.W.2d 302, 320–21 (Tex. Crim. App. 1987)
(citations omitted), 485 U.S. 993 (1988), overruled on other grounds, Briggs
v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).
      16
           See majority op. at 16–20, 21.

                                        29
trade his right to confrontation of witnesses against him for his right to apply

for community supervision.        Nowhere in our jurisprudence is there any

suggestion that a person requesting community supervision must give up his

constitutional right to a fair trial. This is the very issue addressed in Carroll v.

State.17 Carroll had filed an application for community supervision. The trial

judge said that he would be hard pressed to give her probation if she did not

give up her right to remain silent by testifying in the punishment phase of the

bench trial. The Texas Court of Criminal Appeals held that Carroll’s “guilty plea

to the offense charged did not waive her right against self-incrimination as to

sentencing.” 18 The Texas Court of Criminal Appeals relied on the U.S. Supreme

Court’s holding in Mitchell v. United States that the right against self-

incrimination does not disappear with an adjudication of guilt because “[w]here

the sentence has not yet been imposed a defendant may have a legitimate fear

of adverse consequences from further testimony.” 19              Analogously, an

appellant’s right to confront witnesses against him does not disappear with an

application for community supervision because until sentence is imposed, he




      17
           Carroll v. State (Carroll V), 42 S.W.3d 129 (Tex. Crim. App. 2001).
      18
           Id. at 132.
      19
           526 U.S. 314, 326, 119 S. Ct. 1307, 1314 (1999).

                                        30
too may have a legitimate fear of unfavorable information submitted for the fact

finder’s consideration.

      The majority also found that Appellant waived or forfeited his right of

confrontation or was estopped from asserting it because he accepted the

benefits of the favorable portions of the PSI.20 A defendant is not required to

abandon his objections to inadmissible evidence because he does not object to

the admissible portions of the evidence.      That is, a Confrontation Clause

objection lies only when the evidence is unfavorable, not when it is favorable.

      The majority further holds that because Appellant accepted the benefits

of the order requiring a PSI and the order requiring psychosexual testing as part

of the PSI, he was estopped from asserting a Confrontation Clause objection

and limited to the statutory remedy of objecting to factual inaccuracies.

Essentially, the majority holds that the constitutional right to due process as

expressed in the Confrontation Clause must bow to the PSI statute.

      To summarize the majority’s new rule: When a defendant in a criminal

case pleads guilty and applies for community supervision from the judge, he

gives up his constitutional due process rights to confront and cross-examine the

witnesses against him, his right to have the evidence against him presented




      20
           See majority op. at 19.

                                       31
under oath, his right to challenge the admissibility of the evidence against him,

and his right to have the evidence against him presented in open court.

Essentially, the majority holds that when the PSI statute conflicts with the

Constitution, the statute prevails over the Constitution. I cannot agree.

      The trial court erred by denying Appellant his constitutional rights to

confront and cross-examine witnesses accusing him of crimes. Additionally,

the State emphasized the extraneous acts of misconduct in its closing argument

to the trial court, harming Appellant. Because the majority holds that Appellant

forfeited his constitutional right to due process guarantees by applying for

community supervision, I must respectfully dissent.




                                            LEE ANN DAUPHINOT
                                            JUSTICE

PUBLISH

DELIVERED: October 23, 2008




                                       32
