IN THE

TENTH COURT OF APPEALS

No. 10-21-00171-CR

TYLER JAMES KIRKPATRICK,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2019-476-C1

&

IN THE

TENTH COURT OF APPEALS

No. 10-21-00172-CR

TYLER JAMES KIRKPATRICK,

Appellant

v.
Kirkpatrick v. State Page 2

THE STATE OF TEXAS,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2019-594-C1

MEMORANDUM OPINION

In two issues, appellant, Tyler James Kirkpatrick, challenges the sentences 

imposed in appellate cause numbers 10-21-00171-CR and 10-21-00172-CR. Specifically, 

appellant complains that: (1) the trial court erred by admitting a presentencing report 

over his hearsay objection; and (2) the admission of the presentencing report violated his 

right to confront witnesses against him under the Sixth Amendment of the United States 

Constitution. See U.S. CONST. amend. VI. We affirm.

Background

In appellate cause number 10-21-00171-CR, appellant pleaded guilty to two counts 

of indecency with a child by contact without the benefit of a plea agreement with the 

State. See TEX. PENAL CODE ANN. § 21.11. In appellate cause number 10-21-00172-CR, 

appellant pleaded guilty to one count of aggravated sexual assault of a child and three 

counts of indecency with a child by contact also without the benefit of a plea agreement 

with the State. See id. §§ 21.11, 22.021. After a sentencing hearing where the trial court 
Kirkpatrick v. State Page 3

considered all counts in both appellate cause numbers, the trial court assessed 

punishment at twenty years’ confinement in the Institutional Division of the Texas 

Department of Criminal Justice for each count. With regard to the one count of 

aggravated sexual assault of a child and three counts of indecency with a child by contact 

in appellate cause number 10-21-00172-CR, the trial court ordered the sentences to run 

concurrently. The two counts of indecency with a child by contact in appellate cause 

number 10-21-00171-CR were ordered to run concurrently with one another, but 

consecutively with the sentences imposed in appellate cause number 10-21-00172-CR.

Admission of the Presentencing Report

In his first issue, appellant contends that the trial court erred by admitting the 

presentencing report over his hearsay objection. We disagree.

We review a trial court’s admission or exclusion of evidence for an abuse of 

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court 

abuses its discretion if it acts arbitrarily or unreasonably, without reference to any 

guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 

1990). When considering a trial court’s decision to admit or exclude evidence, we will 

not reverse the trial court’s ruling unless it falls outside the “zone of reasonable 

disagreement.” Id. at 391; see Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

During the sentencing hearing for all of the counts in both appellate cause 

numbers, appellant made a general hearsay objection to the admission of the 
Kirkpatrick v. State Page 4

presentencing report. Appellant also objected that the State had failed to lay the proper 

foundation for the admission of the presentencing report.

Notwithstanding the fact that a general hearsay objection does not preserve error 

for appeal, see Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995), the Court of 

Criminal Appeals has held that the rules of evidence generally do not apply to the 

contents of a presentencing report. See Fryer v. State, 68 S.W.3d 628, 631 (Tex. Crim. App. 

2002); Champion v. State, 126 S.W.3d 686, 699 (Tex. App.—Amarillo 2004, pet. ref’d); see 

also O’Bryant v. State, No. 10-18-00063-CR, 2019 Tex. App. LEXIS 2179, at *4 (Tex. App.—

Waco Mar. 20, 2019, pet. ref’d) (mem. op., not designated for publication). This exception 

also includes the rules pertaining to hearsay. See Champion, 126 S.W.3d at 699 (citing 

Brown v. State, 478 S.W.2d 550, 551 (Tex. Crim. App. 1972) (holding that the statute 

governing presentencing reports authorizes the trial court to consider information in the 

presentencing report that is hearsay)); see also Smith v. State, 227 S.W.3d 753, 763 (Tex. 

Crim. App. 2007) (noting that article 37.07, section 3(d) authorizes the trial court to order 

a presentencing report and places no condition on the trial court in considering the 

contents of the presentencing report (citing TEX. CODE CRIM. PROC. ANN. art. 37.07, § 

3(d))). To hold otherwise would be “to deny the obvious purpose of the statute.” Fryer, 

68 S.W.3d at 631 (citing Brown, 478 S.W.2d at 551).

Because the rules of evidence generally do not apply to the contents of a 

presentencing report, and because the Court of Criminal Appeals has held that the trial 
Kirkpatrick v. State Page 5

court can consider otherwise inadmissible hearsay contained in a presentencing report, 

we cannot say that the trial court abused its discretion by overruling appellant’s hearsay 

objection and admitting the presentencing report. See Smith, 227 S.W.3d at 763; Fryer, 68 

S.W.3d at 631; Brown, 478 S.W.2d at 551; Champion, 126 S.W.3d at 699; Wilson v. State, 108 

S.W.3d 328, 332 (Tex. App.—Fort Worth 2003, pet. ref’d) (“In this case, the Texas Court 

of Criminal Appeals has given its imprimatur to the trial court’s consideration of 

otherwise inadmissible hearsay. We are therefore compelled to hold that the trial court 

did not err in admitting or considering the hearsay statements contained in the PSI.”); see 

also O’Bryant, 2019 Tex. App. LEXIS 2179, at **4-5. We overrule appellant’s first issue.

In his second issue, appellant asserts that the admission of the presentencing 

report violated his right to confront witnesses against him under the Sixth Amendment 

of the United States Constitution. See U.S. CONST. amend. VI.

Generally, to preserve a complaint for appellate review, the party must make his 

complaint to the trial court by a timely request, objection, or motion that states the 

grounds for the ruling sought with sufficient specificity to make the trial court aware of 

the complaint. See TEX. R. APP. P. 33.1(a). Confrontation Clause complaints are subject to 

this general preservation requirement. See Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. 

App. 2010). A defendant’s failure to object on Confrontation Clause grounds at trial 

waives a Confrontation Clause complaint for appellate review. See Paredes v. State, 129 

S.W.3d 530, 535 (Tex. Crim. App. 2004) (holding that defendant failed to preserve a 
Kirkpatrick v. State Page 6

Confrontation Clause complaint for appellate review when the trial objection was solely 

on hearsay grounds).

A review of the record shows that appellant did not object to the admission of the 

presentencing report on Confrontation Clause grounds. As such, we conclude that 

appellant failed to preserve this complaint for appellate review. See TEX.R.APP.P. 33.1(a); 

Davis, 313 S.W.3d at 347; see also Paredes, 129 S.W.3d at 535. We overrule appellant’s 

second issue.1

Conclusion

Having overruled both of appellant’s issues on appeal, we affirm the judgments 

of the trial court.

STEVE SMITH

Justice

Before Chief Justice Gray,

Justice Johnson, and

Justice Smith

Affirmed

Opinion delivered and filed April 13, 2022

Do not publish

[CR25]

1 We also note that the sentences in these cases were determined by the trial judge. The Court of 

Criminal Appeals has held that: “When the sentence is determined by the judge, the information in a PSI 

is not subject to the Confrontation Clause.” Stringer v. State, 309 S.W.3d 42, 48 (Tex. Crim. App. 2010). 

Therefore, even if appellant had preserved his Confrontation Clause complaint to the presentencing report, 

the complaint would fail. See id.