Pierce, Daniel v. The State of Texas--Appeal from 278th District Court of Walker County

Affirmed and Opinion filed June 27, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00925-CR

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DANIEL PIERCE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 278th District Court

WalkerCounty, Texas

Trial Court Cause No. 20,224C

O P I N I O N

Appealing his punishment of ten years= confinement in the state penitentiary for aggravated sexual assault, appellant Daniel Pierce contends in a single point of error that the trial court reversibly erred during the punishment phase of trial by considering inadmissible hearsay in a presentence investigation report. We affirm.

 I.   Factual And Procedural Background

In August 1999, appellant was charged by indictment with the felony offense of aggravated sexual assault alleged to have been committed in June 1994. In April 2001, appellant waived his right to trial by a jury and entered a plea of guilty to the offense as alleged in the indictment. There was no agreement between appellant and the State as to punishment. The trial court requested the preparation of a presentence investigation (APSI@) report before sentencing.

In June 2001, the trial court conducted a punishment hearing. Before the hearing, appellant=s trial counsel indicated that some portions of the PSI report were objectionable. At the hearing, the trial court sustained all but one of appellant=s objections. The one objection the trial court overruled dealt with alleged hearsay statements contained in the Astate=s version@ of the PSI report. Specifically, appellant complained of the following statements:

On September 8, 1998, Detective Petty spoke with the victim who provided her memory of the events. [B.H., the victim] advised that Pierce [appellant] made her perform oral sex on him and tried to AFrench kiss@her. This occurred when she was eight or nine years old. Another incident occurred in a tent which was set up in the back yard. The victim said that Pierce put his finger in her vagina. She reported that the defendant tried to insert his penis in her but [sic] she cried because it hurt and he would stop. [B.H.] recalled another incident in which she was lying with Pierce on his bed. He asked her what a condom was and she said she did not know. The defendant asked if she wanted to know and she told him she did. Pierce told her they would have to use it and she told him Anever mind.@ He then showed [B.H.] a picture of her mother performing oral sex on the defendant. Elizabeth said that the defendant told her it was Atheir little secret@ and Aif you treat me good, I=ll treat you good.@ In addition, he would give her small amounts of money.

The victim said the last time she could recall any abuse was when she was 11 or 12 years old. She said the defendant stopped molesting her because she was old enough to fight back.

The victim=s description of the events, as set forth above, was taken from Walker County Detective Peggy Petty during an interview and later incorporated in the PSI report. During his testimony, appellant described the circumstances surrounding the above instances in a similar manner.

II. Issue Presented on Appeal

Appellant contends the trial court erred in overruling his hearsay objection to the forgoing statements in the PSI report and in considering this evidence in assessing his punishment.

III. Analysis

A trial court assessing punishment may consider hearsay statements contained in a PSI report. Brown v. State, 478 S.W.2d 550 (Tex. Crim. App. 1972); see also, Clay v. State, 518 S.W.2d 550, 555 (Tex. Crim. App. 1975). Several courts of appeals, including this court, have relied on this rule in holding hearsay is admissible in cases decided after the effective date of the Texas Rules of Criminal Evidence. See Stancliff v. State, 852 S.W.2d 639, 641 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d), overruled on other grounds by Whitelaw v. State, 29 S.W.3d 129 (Tex. Crim. App. 2000) (holding that a defendant=s allegation that information contained in the report is factually inaccurate does not render the report inadmissible); Garcia v. State, 930 S.W.2d 621, 623B24 (Tex. App.CTyler 1996, no pet.) (holding that Article 42.12, Sec. 9 specifies the criminal and social history of the defendant shall be included in the report, and reasoned that the accused may challenge the factual accuracy of its contents); Nicolopulos v. State, 838 S.W.2d 327, 328 (Tex. App.CTexarkana 1992, no pet.) (noting that the trial court is specifically authorized by statute to consider the presentence investigation report, including hearsay regarding extraneous offenses). Although appellant acknowledges these holdings and the rule in Brown, he maintains that hearsay in the PSI report is inadmissible under the Texas Rules of Evidence, and that the Brown rule should not apply because it predates the 1993 amendment to article 42.12, section 9 of the Texas Code of Criminal Procedure, which changed the rule to make PSI reports mandatory during sentencing. We disagree with appellant.

The Texas Code of Criminal Procedure provides that when assessing punishment, the trial court shall direct a supervision officer to report to the court in writing on the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal social history of the defendant and any other information relating to the defendant or the offense requested by the court. Tex. Code Crim. Proc. Ann. art. 42.12 ' 9(a) (Vernon Supp. 2002). The statute expressly provides that the PSI report should contain the criminal social history of the defendant.

InBrown, the Texas Court of Criminal Appeals, relying on what was then Article 42.12, Sec. 4 of the Texas Code of Criminal Procedure, made it clear that PSI reports may contain hearsay. 478 S.W.2d at 551. Recently, but after appellant submitted his appellate brief to this court, the Texas Court of Criminal Appeals reaffirmed its holding in Brown, stating that the PSI statute authorizes the trial court to consider information in the PSI report that was hearsay and to hold otherwise would Adeny the obvious purpose of the statute.@ Fryer v. State, 68 S.W.3d 628, 630 (Tex. Crim. App. 2002) (holding a victim=s recommendation in a PSI report could be considered by the trial court during the punishment phase); see also Holland v. State, 761 S.W.2d 307, 318B19 (Tex. Crim. App. 1988); Perez v. State, 478 S.W.2d 550, 551 (Tex. Crim. App. 1972); Williams v. State, 958 S.W.2d 844, 845B46 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d) (holding that extraneous offenses presented to the court in the form of hearsay in a PSI report does not preclude their consideration by the trial court); Holman v. State, 697 S.W.2d 824, 826 (Tex. App.CHouston [1st Dist.] 1985, no pet.).

The presentence investigation and the PSI report may be utilized to assist the trial court in the exercise of its discretion whenever an issue of the proper punishment is present. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); see also Nicolopulos, 838 S.W.2d at 328 (holding that the trial court is specifically authorized by statute to consider the contents of the presentence investigation report). The Texas Code of Criminal Procedure=s express statutory provision for PSI reports governs over the Texas Rules of Evidence. Fryer, 68 S.W.3d at 630; DuBose v. State, 977 S.W.2d 877, 881 (Tex. App.CBeaumont 1998, no pet.); Tex. R. Evid. 101(c).

The law clearly states that the trial court shall direct the supervision officer to report to the court in writing the circumstances of the offense. That is precisely what happened here. The supervising officer provided the trial court with a summary of the circumstances of the offense, both in the defendant=s version and in the state=s version. The victim in this case is the appellant=s stepdaughter. Appellant testified at the punishment hearing as to the circumstances surrounding the abuse in detail and admitted that the abuse occurred on ten to twenty different occasions. Appellant=s version of the events is similar to the victim=s statements contained in the PSI report. The fact that the victim=s statements were contained in the PSI report, but that she did not testify at the punishment hearing does not render the statements irrelevant or inadmissible. Article 37.07, section 3(a) of the Texas Code of Criminal Procedure provides that evidence as to any matter may be offered during the punishment phase of a trial if the trial court deems it relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a) (Vernon 1994). Appellant pled guilty to an offense for which the range of punishment is five years to ninety nine years or life in prison. See Tex. Pen. Code Ann. ' 12.42 (Vernon 1994); Tex. Pen. Code Ann. ' 22.021 (Vernon 1994). There is no indication that the trial court considered any improper evidence in arriving at appellant=s ten-year sentence. The trial court did not err when it admitted those portions of the PSI report containing hearsay because they were relevant to punishment. Accordingly, we overrule appellant=s sole point of error.

Having found no merit in appellant=s arguments, we affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Opinion filed June 27, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

Do Not Publish C Tex. R. App. P. 47.3(b).