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Lena J. Davis v. State ( 2016 )


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  •                         COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00261-CR
LENA J. DAVIS                                                       APPELLANT
V.
THE STATE OF TEXAS                                                       STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1304621D
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MEMORANDUM OPINION1
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Appellant Lena J. Davis appeals her conviction for possession of a
controlled substance (Gamma Hydroxybutyric Acid) of four grams or more but
less than 200 grams. Tex. Health & Safety Code Ann. §§ 481.102(9), 481.115(d)
(West 2010). In one point, she asserts that the trial court violated her right to
confront witnesses when it considered the presentence investigation report (PSI)
at punishment. We affirm.
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See Tex. R. App. P. 47.4.
Background
Appellant entered an open plea of guilty to the charged offense on March
24, 2014, after which the trial court continued the proceedings until July 1, 2014,
pending the preparation of a PSI. At the July 1, 2014 hearing, the trial court
admitted the PSI without any objection from defense counsel. The trial court
stated on the record that it had considered the evidence alluded to in the PSI,
denied Appellant’s application for community supervision, and sentenced her to
two years’ incarceration.
Argument and Discussion
In one point, Appellant contends that her right to confront adverse
witnesses was violated when the trial court considered the PSI at punishment.
Appellant acknowledges that her complaint was not preserved at trial; however,
citing Ex parte Hathorn,
    296 S.W.3d 570
    , 572 (Tex. Crim. App. 2009); Black v.
State,
    816 S.W.2d 350
    , 364 (Tex. Crim. App. 1991); Ex parte Turner,
    542 S.W.2d 187
    , 189 (Tex. Crim. App. 1976); and Ex parte Casarez,
    508 S.W.2d 620
    , 622
(Tex. Crim. App. 1974) (op. on reh’g), she contends her claim should not be
considered forfeited because, based upon the law existing at the time of her trial,
the trial court would have overruled any objection anyway. We disagree. All four
cases involved instances where after the trial, the law changed.
    Hathorn, 296 S.W.3d at 572 
    (holding that defendant, who was tried in 1985, could not be
faulted for not objecting because the law changed four years later in 1989 with
the decision in Penry v. Lynaugh,
    492 U.S. 302
    ,
    109 S. Ct. 2934 
    (1989)); Black,
    2 816 S.W.2d at 364 
    (holding that defendant, who was tried in 1986, could not be
faulted for not objecting because the law changed three years later in 1989 with
the decision in Penry);
    Turner, 542 S.W.2d at 189 
    (holding error not forfeited
where law changed two years after trial);
    Casarez, 508 S.W.2d at 622 
    (holding
error not forfeited where law changed five years after trial).     Appellant is not
arguing that the law changed. Appellant is trying to use her case to change the
law. Appellant’s reliance on these cases is, therefore, misplaced.
The right of confrontation is a forfeitable right.     Deener v. State,
    214 S.W.3d 522
    , 527 (Tex. App.—Dallas 2006, pet. ref’d); see Fisher v. State, No.
02-04-00434-CR,
    2005 WL 994740
    , at *1 (Tex. App.—Fort Worth Apr. 28, 2005,
no pet.) (mem. op., not designated for publication). Because Appellant failed to
object to the trial court’s consideration of the PSI, she has forfeited her complaint
on appeal.
Conclusion
Having overruled Appellant’s sole point, we affirm the trial court’s
judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DAUPHINOT, J. concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
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DELIVERED: February 4, 2016
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