                           PD-0884-15                                                                    PD-0884-15
                                                                                       COURT OF CRIMINAL APPEALS
                                                                                                        AUSTIN, TEXAS
                                                                                       Transmitted 7/27/2015 1:26:38 PM
                                                                                         Accepted 7/28/2015 4:33:23 PM
                                                                                                         ABEL ACOSTA
                                                                                                                 CLERK

                                    SHAREN WILSON
                                    Criminal District Attorney
                                         Tarrant County


                                          July 27, 2015
                                                                                        July 28, 2015
Hon. Abel Acosta, Clerk
Court of Criminal Appeals
P.O. Box 12308
Austin, Texas 78711

      Re:    Whatley v. State, No. PD-0884-15

Greetings:

      This letter is in response to Appellant’s Petition for Discretionary
Review filed on July 17, 2015, attacking the decision in Whatley v.
State, No. 02-14-00472-CR, 2015 WL 3422159 (Tex.App. -- Fort Worth
May 28, 2015, pet. filed) (per curiam mem. op. on reh’g, not designated
for publication). The court of appeals held that Appellant failed to
prove that he was subjected to a pre-determined sentence. Id. at *2.
      Appellant’s sole ground for review maintains that the trial court’s
consideration of unobjected-to evidence concerning the victim’s wishes
regarding probation constitutes a failure to consider the entire
applicable range of punishment. Pet. at 3. Appellant’s complaint is
unworthy of discretionary review for a number of reasons.
      First, the bulk of Appellant’s complaint constitutes a mere rehash
of the complaint that Appellant presented to the court of appeals rather
than an attempt to demonstrate where the court of appeals’ decision
violates precedent.1 Degrate v. State, 712 S.W.2d 755, 756 (Tex. Crim.
App. 1986) (per curiam) (discretionary review petition should
specifically address court of appeals' decision, and “[a]ny petition which
1      While the “argument” portion of Appellant’s petition mentions the court
of appeals’ decision once, in passing, Pet. at 8, this solitary mention does not
“amplify” Appellant’s stated reason for why the Court should grant review.
Id. at 3 (citing TEX. R. APP. P. 66.3(b)); TEX. R. APP. P. 68.4(f).
                 401 West Belknap     •   Fort Worth, Texas 76196   •   817.884.1400
fails to set forth adequate reasons for this Court to exercise its
discretion to review a court of appeals' opinion is subject to . . .
summary refusal”); see also TEX. R. APP. P. 66.1 & 68.1.
      Second, Appellant points to no comment from the trial court
showing that the trial court imposed a pre-determined sentence.
Appellant’s reliance on evidence that was admitted at trial (without
objection), or arguments made by the prosecution, simply do not
advance a claim that Appellant was subjected to a pre-determined
sentence.2 A trial court does the opposite of imposing a pre-determined
sentence when it considers evidence that was admitted at trial. See Ex
parte Brown, 158 S.W.3d 449, 456-57 (Tex. Crim. App. 2005) (per
curiam). Absent a clear showing of bias, a trial court’s actions are
presumed to be correctly-based rather than pre-determined. See
Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).
      Third, if Appellant felt that certain evidence should not be
considered, Appellant needed to object to that evidence at trial rather
than attempt to transmute an unpreserved evidentiary complaint into a
pre-determined sentence claim.3 See, e.g., Anderson v. State, No. 05-12-
01341-CR, 2013 WL 6229542, at *1 (Tex.App. -- Dallas Dec. 2, 2013, no
pet.) (mem. op., not designated for publication) (complaint that trial
court improperly considered hearsay evidence in probation file was not
preserved where defendant did not timely object to admission of the
hearsay); Adams v. State, No. 05-05-01014-CR, 2006 WL 2337743, at *1
(Tex.App. -- Dallas Aug. 14, 2006, no pet.) (not designated for


2      Even Appellant concedes that it would not be a pre-determined
sentence for the trial court to consider a victim’s wishes contained in a PSI.
Pet. at 8 n.3.
3      The court of appeals did not reach the State’s argument that
Appellant’s complaint about the trial court’s consideration of evidence was
forfeited by Appellant’s failure to object to that evidence. State’s coa br. at 7-
9. Instead, relying upon Grado v. State, 445 S.W.3d 736, 739-43 (Tex. Crim.
App. 2014), the court of appeals held that Appellant was not required to
object to the sentence. Whatley, 2015 WL 3422159, at *1. The court of
appeals also did not reach the State’s argument that Appellant could not
have excluded the victim’s testimony even had Appellant objected to it.
State’s coa br. at 11-15.
                                        2
publication) (appellant cannot complain about trial court’s consideration
of evidence in assessing punishment that appellant did not object to).
      Finally, Appellant’s unjustified assault on a factfinder’s
consideration of unobjected-to evidence, Pet. at 10, casually challenges a
great deal of this Court’s precedents. See, e.g., Poindexter v. State, 153
S.W.3d 402, 406 (Tex. Crim. App. 2005) (jury may consider “unobjected-
to hearsay evidence” for any purpose).
      Appellant’s fact-bound petition should be refused. Thank you.

Respectfully submitted,

SHAREN WILSON                   /s/ ANNE SWENSON
Criminal District Attorney      ANNE SWENSON, Assistant
Tarrant County, Texas           State Bar No. 19575500
                                401 W. Belknap Street
DEBRA WINDSOR,                  Fort Worth, Texas 76196-0201
Assistant Criminal              (817) 884-1687
District Attorney               FAX (817) 884-1672
Chief, Post-Conviction          ccaappellatealerts@tarrantcountytx.gov

                  CERTIFICATE OF COMPLIANCE

The number of words computed in accordance with TEX. R. APP. P.
9.4(i)(1) are 862.
                            /s/ ANNE SWENSON____
                            ANNE SWENSON, Assistant
                            Criminal District Attorney
                     CERTIFICATE OF SERVICE

One copy of the State's letter reply to Appellant's petition for
discretionary review has been sent to (1) counsel for Appellant, Mr.
Paul Francis at pfrancis@birch.net and (2) Ms. Lisa McMinn, State
Prosecuting Attorney at information@spa.texas.gov, on this the 27th
day of July 2015.
                                    /s/ ANNE SWENSON___
                                    ANNE SWENSON, Assistant
                                    Criminal District Attorney
                                    3
