Cristian Orellana v. State

Opinion issued October 13, 2011

In The

Court of

Appeals

For The

First District

of Texas

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NOS. 01-10-00389-CR &

01-10-00390-CR

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cristian orellana , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Case Nos. 1195734 & 1195735

MEMORANDUM OPINION

Appellant, Cristian

Orellana, pleaded guilty to the offenses of aggravated robbery [1] and injury to a child, [2] and the trial court assessed

his punishment at confinement for life for both offenses. In his sole point of error, appellant contends

that article 42.12, section 9 of the Texas Code of Criminal Procedure [3] is facially

unconstitutional.

We affirm.

Background

Appellant

pleaded guilty to the offenses of aggravated robbery and injury to a child, and

the trial court reset the case for a presentence investigation (“PSI”) hearing

to assess punishment. The trial court subsequently

found appellant guilty, and commenced the PSI hearing. During the PSI hearing, the State introduced

the PSI report into evidence. Appellant

stated that he had no objections to the introduction of this report. After the PSI hearing, the trial court

sentenced appellant to life in prison for both offenses.

Waiver

In his sole point of error,

appellant argues that article 42.12, section 9 of the Texas Code of Criminal

Procedure is facially unconstitutional because it permits the use of

testimonial statements in a presentence investigation report (“PSI”) against an

accused in violation of the Sixth Amendment’s Confrontation Clause. [4]

The Texas Court of Criminal Appeals

has held that an appellant may not raise for the first time on appeal a facial

challenge to the constitutionality of a statute. Karenev

v. State , 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). In so holding, the court explained that statutes

are presumed to be constitutional until it is determined otherwise and “[t]he State

and the trial court should not be required to anticipate that a statute may

later be held to be unconstitutional.” Id .

Here, appellant concedes that he did not assert in the trial court his

facial constitutional challenge to article 42.12, section 9. All of the cases that appellant cites in

support of his attempt to raise his challenge for the first time on appeal

precede Karenev . Accordingly, we hold that appellant has

waived his challenge. Id .; see

also Reyna v. State , 168 S.W.3d 173 , 179–80 (Tex. Crim. App. 2005) (holding

that defendant did not preserve Confrontation Clause objection by failing to

clearly articulate objection in trial court).

We overrule appellant’s sole point

of error. [5]

Conclusion

We

affirm the judgment of the trial court.

Terry

Jennings

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann. §§ 29.02,

29.03 (Vernon 2011). Trial court cause

number 1195734; appellate cause number 01-10-00389-CR.

[2] See

id . § 22.04(a) (Vernon 2011). Trial

court cause number 1195735; appellate cause number 01-10-00390-CR.

[3] Tex.

Code Crim. Proc. Ann. art. 42.12, § 9 (Vernon Supp. 2011).

[4] U.S.

Const. amend. VI.

[5]

Moreover, we note that even if

we were to consider the merits of appellant’s point, the Texas Court of

Criminal Appeals has held 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. Stringer

v. State , 309 S.W.3d 42, 48 (Tex. Crim. App. 2010) (citing Crawford v. Washington , 541 U.S. 36 , 124

S. Ct. 1354 (2004)).