                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00145-CR



            BRYAN HAYWARD, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



     On Appeal from the Criminal District Court No. 2
                 Tarrant County, Texas
               Trial Court No. 1471899D




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Burgess
                                    MEMORANDUM OPINION
        Bryan Hayward pled guilty to possession with intent to deliver four or more, but less than

200, grams of cocaine.         In the “plea recommendation” portion of Hayward’s written plea

admonishments, Hayward agreed to an “open plea to Court with PSI.” After reviewing the

presentence investigation report (PSI), the trial court sentenced Hayward to twenty years’

imprisonment.

        In his sole point of error on appeal, 1 Hayward argues that the trial court’s consideration of

the PSI violated his rights under the Confrontation Clause. We find that Hayward failed to

preserve this issue and overrule his sole point of error on appeal. Accordingly, we affirm the trial

court’s judgment.

I.      Hayward Did Not Preserve His Confrontation Clause Complaint

        To preserve a complaint for our review, a party must first present to the trial court a timely

request, objection, or motion stating the specific grounds for the desired ruling, if not apparent

from the context. TEX. R. APP. P. 33.1(a)(1). Here, when the State introduced the PSI during

sentencing, Hayward affirmatively stated that he had no objection to the report. By agreeing to

the trial court’s consideration of the PSI, the State argues that Hayward forfeited any argument

against its consideration on appeal. We agree. See Swain v. State, 181 S.W.3d 359, 368 (Tex.

Crim. App. 2005); Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005).




1
 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We follow the
precedent of the Second Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

                                                       2
       Hayward acknowledges that the Texas Court of Criminal Appeals has held that the right to

confront witnesses does not apply when a PSI is used in a non-capital case in which the defendant

has elected to have the trial court assess punishment. Stringer v. State, 309 S.W.3d 42, 48 (Tex.

Crim. App. 2010). He also claims that, although he failed to object to the introduction of the PSI,

his complaint was not forfeited because the law is well-settled on this issue. See Ex parte Hathorn,

296 S.W.3d 570, 572 (Tex. Crim. App. 2009). In other words, because the law was settled against

Hayward in Stringer, Hayward argues that a Confrontation Clause objection would have been

overruled and was futile. The Second Court of Appeals has rejected this same argument and has

expressly held that an objection to a PSI is required to preserve any Confrontation Clause argument

on appeal. Sell v. State, 488 S.W.3d 397, 398–99 (Tex. App.—Fort Worth 2016, pet. ref’d).

       We overrule Hayward’s unpreserved sole point of error.

II.    Conclusion

       We affirm the trial court’s judgment.




                                               Ralph K. Burgess
                                               Justice

Date Submitted:        January 10, 2019
Date Decided:          January 11, 2019

Do Not Publish




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