Angelle v. State

• Decision Date: 12 July 1978
• Docket Number: No. 57460,No. 3,57460,3
• Citation: 571 S.W.2d 301
• Parties: Jerry ANGELLE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 301

571 S.W.2d 301

Jerry ANGELLE, Appellant, v. The STATE of Texas, Appellee.

No. 57460.

Court of Criminal Appeals of Texas, Panel No. 3.

July 12, 1978 Court's Motion for Rehearing En Banc Denied Oct. 18, 1978.

Charles E. Myers, Beaumont, on appeal only, for appellant.

Tom Hanna, Dist. Atty. and William G. Ogletree, Asst. Crim. Dist. Atty., Beaumont, for the State.

Before ROBERTS, PHILLIPS and VOLLERS, JJ.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated robbery. The appellant pleaded guilty, and after a trial before the court, the trial judge assessed the appellant's punishment at twenty-five years in the Texas Department of Corrections.

The appellant contends that the trial judge erred by ordering a presentence investigation and by considering, as a factor in the assessment of punishment, pending charges against the appellant. We affirm.

The record reveals that on April 13, 1977, the appellant pleaded guilty before the court. At that time, the trial judge had a written statement from the prosecutor recommending that the appellant's punishment be assessed at twenty-five years. The trial judge also had been supplied with a written statement from the appellant and his attorney requesting that his punishment be assessed at 20 years. The trial judge deferred his decision on the punishment to be assessed and ordered a presentence investigation. At that time, the trial judge stated:

"Now, a pre-sentence report will be conducted in your case, Mr. Angelle. That means that the probation officer will interview you and get all your background and all the details of this event and everything. So when you go over there will you take him over there and talk to Mr. Morgan. Be sure to tell him anything that you think is favorable in your case or background so he can investigate it and put it in your report."

On May 16, 1977, the trial judge held a hearing to assess the appellant's punishment. During the hearing, the trial judge noted that the presentence report, a copy of which had been given to the appellant, was adverse to the appellant. Accordingly, the trial judge decided to follow the prosecutor's recommendation.

The appellant's first contention is that the trial judge erred by ordering a presentence investigation and report since probation was not an issue. The appellant also contends that the report contained hearsay which was prejudicial to the appellant and that the trial judge erred by considering the hearsay contained in the report. The appellant relies on Valdez v. State, 491 S.W.2d 415, 417 (Tex.Cr.App. 1973), in which we stated:

"While not required to utilize a pre-sentence report, it is desirable in such cases that the trial court '. . . use the probation officer's report and take into consideration all of the pertinent information to more intelligently determine if the person convicted is entitled to probation. . . .' McNeese v. State, 468 S.W.2d 800, 801 (Tex.Cr.App. 1971)."

We are not convinced that a presentence investigation and report are appropriate only when the issue of whether a trial judge should grant a defendant probation is raised. Rather, whenever an issue of the proper punishment is present a presentence investigation and report may be utilized to assist the trial judge in the exercise of his discretion. We hold that the trial judge did not abuse his discretion by ordering a presentence investigation and report.

Furthermore, it is well established that "(t)he fact that the court considers the arrest record of a person applying for probation is not error, McNeese v. State, supra, and the court is not required to disregard information in the pre-sentence report because 'hearsay statements' are included." Valdez v. State, supra at 417. (Citation omitted). See also Clay v. State, 518 S.W.2d 550 (Tex.Cr.App. 1975). Thus, although the presentence report contained hearsay statements, the inclusion of the hearsay statements does not reflect reversible error. We further note that there is no showing that the trial judge relied on or even considered the hearsay statements. Finally, the appellant failed to object, at the hearing on May 16, 1977, to the inclusion of the hearsay statements. We are unable to...