Jesus Favila v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00215-CR
JESUS FAVILA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1483077R
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MEMORANDUM OPINION 1
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In two points, Appellant Jesus Favila appeals his conviction for continuous
sexual abuse of a child. See Tex. Penal Code Ann. § 21.02 (West Supp. 2017).
We affirm.
1
See Tex. R. App. P. 47.4.
Background
On January 17, 2017, Appellant entered an open guilty plea to the offense
of continuous sexual abuse of a child. See id. The trial court accepted the plea
and recessed the case pending the preparation of a presentence investigation
report (PSI).
On July 6, 2017, the trial court held a sentencing hearing. At the opening
of the hearing, the State presented the PSI and asked the trial court to take
judicial notice of its contents. When the trial court asked if Appellant had any
objection, Appellant’s counsel responded, “No, Your Honor,” and offered an
exhibit intended as a supplement to the PSI which contained Appellant’s notes
and corrections to the report. The State voiced no objection to Appellant’s
exhibit, and both the exhibit and the PSI were admitted into evidence for the trial
court’s consideration.
The State relied solely on the PSI’s contents and did not call any witnesses
during the punishment phase. Appellant called his mother and sister as
witnesses and submitted the report from Appellant’s psychological evaluation.
The trial court sentenced Appellant to 45 years’ confinement. This appeal
followed.
Discussion
Appellant brings two points on appeal. In his first, Appellant argues that
the trial court’s consideration of the PSI violated his right to confrontation. In his
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second, he argues that the “Child Abuse Prevention Fee” assessed as a court
cost is unconstitutional.
I. Consideration of the PSI
Appellant argues in his first point that the trial court’s consideration of the
PSI violated his right to confront the witnesses against him. We overrule
Appellant’s first point because he failed to properly preserve it, but we also note
that even if it was preserved, the court of criminal appeals has held that the
consideration of a PSI does not violate a defendant’s Confrontation Clause
rights.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d
670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). When the
State presented the PSI to the trial court and requested that the trial court take
judicial notice of it, Appellant’s counsel not only stated that he had no objection to
the trial court’s consideration of the PSI but also offered his own supplement to
the report as an exhibit. By agreeing to the trial court’s consideration of the PSI,
Appellant forfeited any argument against its consideration on appeal. See Swain
v. State, 181 S.W.3d 359, 368 (Tex. Crim. App. 2005) (holding “affirmative
acceptance” of evidence forfeited any error in its admission), cert. denied, 549
U.S. 861 (2006).
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In any event, even if we were to consider Appellant’s argument, the court
of criminal appeals has held that a trial court’s consideration of a PSI does not
violate a defendant’s Confrontation Clause rights. Stringer v. State, 309 S.W.3d
42, 48 (Tex. Crim. App. 2010); Smith v. State, 227 S.W.3d 753, 763 (Tex. Crim.
App. 2007). The court based its holding, at least in part, by considering the
neutral, nonadversarial source of the report and its contents:
[T]he purpose of a report such as the PSI used here is to provide a
wide range of information to the trial court without an adversarial
hearing. The probation officer who prepares the report is neutral
and the report is written in anticipation of consideration by the trial
judge for sentencing, not for prosecution. The PSI “is prepared by
the community supervision and corrections department and is as
likely to contain information adverse to the punishment position of
the state as of the defense.” . . . The PSI statute also provides the
defendant the opportunity to present contrary evidence.
Stringer, 309 S.W.3d at 48.
We are bound by the decisions of the court of criminal appeals. See Wiley
v. State, 112 S.W.3d 173, 175 (Tex. App.—Fort Worth 2003, pet. ref’d) (citing
State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971),
cert. denied, 404 U.S. 910 (1971)). We therefore overrule Appellant’s first point.
II. Child abuse prevention fee
In his second point, Appellant challenges the $100 child abuse prevention
fee assessed as part of his court costs. See Tex. Code Crim. Proc. Ann. art.
102.0186 (West 2018). Appellant argues that the fee is unconstitutional because
it violates the separation of powers clause of the Texas constitution. See Tex.
Const. art. II, §1. We rejected the same argument in Ingram v. State, 503
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S.W.3d 745, 749 (Tex. App.—Fort Worth 2016, pet. ref’d) (“Because the
imposition of this cost is limited to those defendants found guilty of crimes
against children, the $100 imposed to be deposited in ‘the county child abuse
prevention fund’ is related to the administration of the criminal justice system
such that this cost is not facially unconstitutional.”). Appellant has given us no
reason to reconsider our prior ruling, and we decline his invitation to do so. 2 We
therefore overrule Appellant’s second point.
Conclusion
Having overruled both of Appellant’s points, we affirm the trial court’s
judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
CHIEF JUSTICE
PANEL: SUDDERTH, C.J.; WALKER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 12, 2018
2
In fact, Appellant candidly concedes in his brief that both of his arguments
have been resolved against his position by the court of criminal appeals and this
court but explains that the arguments are presented to preserve them for further
review.
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