Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of March 21, 2016.

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

Estes v. State,, No. 02-14-00460-CR, (Mar. 24, 2016) (Livingston, C.J., joined by Gardner and Gabriel, JJ.).

Held:  Section 22.011(f) of the penal code, which increases the punishment range for sexual assault from a second-degree felony to a first-degree felony in some circumstances, is unconstitutional as applied to Appellant. The section punished Appellant more harshly for being married at the time he committed sexual assault than it would have punished an unmarried offender who had committed the same acts. There is no rational basis for this difference in treatment. Thus, as applied to Appellant under the circumstances of this case, section 22.011(f) violates the Equal Protection Clause. Because Appellant does not contest the sufficiency of the evidence to support his second-degree felony sexual assault convictions and because Appellant would receive an unjust windfall from the reversal of the convictions based on the equal protection violation, the proper remedy is to remand the charges to the trial court for a new trial on punishment.

Sell v. State,, No. 02-15-00199-CR, (Mar. 24, 2016) (Meier, J., joined by Livingston, C. J.; Dauphinot, J., concurs and dissents with opinion).

Held:  Notwithstanding his argument that it was not incumbent upon him to object to the State’s introduction of a presentence investigation report (PSI) at the punishment hearing, Appellant, based on established precedent from the court of criminal appeals, failed to preserve his Confrontation Clause argument regarding the trial court’s consideration of the PSI. Moreover, even assuming this complaint had been preserved, established precedent from the court of criminal appeals dictates that when a PSI is used in a non-capital case in which the defendant has elected to have the trial court determine sentencing, there is no violation of a defendant’s Sixth Amendment rights to confrontation.

Concurrence/Dissent:  PSIs violate the Confrontation Clause, but Appellant affirmatively waived his right of confrontation by telling the trial court that he had no objection to the trial court’s considering the PSI.