Jackson v. State

• Decision Date: 21 November 1984
• Docket Number: No. 118-84,118-84
• Parties: Wesley Valsom JACKSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 809

680 S.W.2d 809

Wesley Valsom JACKSON, Appellant, v. The STATE of Texas, Appellee.

No. 118-84.

Court of Criminal Appeals of Texas En Banc.

Nov. 21, 1984.

Charles Campion, Don W. King, Jr., San Antonio, for appellant.

Bill M. White, Former Dist. Atty., Wayne Hampton and Alan E. Battaglia, Former Asst. Dist. Attys., Sam D. Millsap, Jr., Dist. Atty., and Charles Estee, Asst. Dist. Atty., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This is an appeal from a conviction for sexual abuse of a child pursuant to former V.T.C.A. Penal Code, § 21.10. ¹ The trial court assessed punishment at eight years confinement in the Texas Department of Corrections. On direct appeal, the San Antonio Court of Appeals affirmed the conviction in an unpublished opinion. We granted the appellant's petition for discretionary review to examine the procedure employed by the trial court in assessing appellant's punishment. We find that the trial judge abused his discretion in setting punishment and we remand the case to the trial court for a new assessment of punishment.

The record reflects that appellant waived trial by jury and entered a plea of not guilty. On December 26, 1979, trial commenced in the 187th Judicial District Court of Bexar County before the Honorable John Benavides. At the conclusion of the evidence, Judge Benavides found the appellant guilty of the offense of sexual abuse of a child. At that time, counsel for appellant requested the trial court postpone hearing the punishment evidence until a later date. Defense counsel represented to the court that there were other witnesses not presently available who could furnish evidence on appellant's behalf. Defense counsel also requested that a comprehensive presentence investigation report be prepared and studied by the court, as appellant had filed an application for probation. Judge Benavides deferred judgment on punishment pending a presentence investigation and recessed the proceedings.

The record reflects that the Honorable John Benavides died prior to assessing punishment in this case, and the next proceeding shown in the statement of facts occurred on January 15, 1981. In the proceeding, no evidence was offered by either the State or the appellant. The Honorable Pat Priest entered a judgment assessing appellant's punishment at eight years confinement in the Texas Department of Corrections. ² Judge Priest denied appellant's application for probation, as well as his motion for mistrial. Formal sentence was pronounced on January 29, 1981, ordering that appellant be confined in the Department of Corrections for not less than two years nor more than eight years. Appellant's motion for new trial was also denied on January 29, 1981.

Appellant complains that the trial court erred in assessing punishment, over appellant's objection, without having reviewed the transcript of the evidence presented at the guilt-innocence stage of trial. More specifically, appellant contends that the trial judge abused his discretion by assessing punishment based solely on the probation officer's presentence investigation report. We agree.

The record reflects that during the January 15, 1981, punishment hearing, appellant's counsel asked Judge Priest whether a transcript of the proceedings before Judge Benavides had been prepared. Judge Priest responded that he did not have access to the transcript of the trial. Appellant's counsel then objected, in connection with his motion for mistrial, to the trial court's action in fixing punishment in that manner.

It is undisputed that the trial court assessed punishment in this case without reviewing the transcript of the testimony adduced at the guilt-innocence stage of trial. Further, no evidence was presented by the State or the appellant at the punishment hearing. It follows, therefore, that the sole basis for the trial court's assessment of punishment was derived from the presentence investigation report prepared by the probation office. We now turn to consider whether, at the time of the trial of this case, a presentence investigation report was a proper tool for the trial court to employ in determining the punishment to be assessed. ³

Early on, Presiding Judge Onion expressed his view on the use of presentence reports in Rodriguez v. State, 502 S.W.2d 13 (Tex.Cr.App.1973), stating that:

"The primary purpose of the pre-sentence report is to provide the trial court with succinct and precise information upon which to base a rational decision on the motion for probation." ⁴

Judge Onion's opinion on the proper use of a presentence report grew stronger in 1978 when he authored concurring opinions in Bean v. State, 563 S.W.2d 819, 821 (Tex.Cr.App.1978), and Nunez v. State, 565 S.W.2d 536, 538 (Tex.Cr.App.1978). In those cases, the trial court bifurcated a plea of guilty trial, deferring punishment "in order to obtain a presentence investigation." Judge Onion took the occasion to "add a word of caution to trial judges about the use of pre-sentence reports to determine punishment." In Bean, supra, he opined:

"The use of presentence investigation reports is to be commended. The only reference to such reports, however, to be found in the Code of Criminal Procedure is in Article 42.12, Section 4, V.A.C.C.P. The proper use of such reports is to enable the trial court to pass on the issue of probation, not to determine the punishment to be assessed."

Judge Onion reiterated his views in Nunez, supra. After all, it should be remembered that these reports often contain reports of arrests not resulting in final convictions, McNeese v. State, 468 S.W.2d 800 (Tex.Cr.App.1971); Valdez v. State, 491 S.W.2d 415 (Tex.Cr.App.1973), reports of pending indictments, Clay v. State, 518 S.W.2d 550 (Tex.Cr.App.1975), hearsay statements, Brown v. State, 478 S.W.2d 550 (Tex.Cr.App.1972), or unseen psychological reports, Rodriguez, supra. Eyeing the possible contents of a presentence report, Judge Onion declared:

"While many of these matters can be considered by the court in passing upon the issue of probation, they would not be considered admissible on the issue of guilt or upon the issue of the punishment. [footnote omitted] ... If there be a pre-sentence report, it should be used to determine the question of granting probation alone. This would avoid any argument that in assessing punishment the court took into consideration arrest reports not resulting in final convictions, extraneous offenses, hearsay, rumors, etc., which frequently find their way into pre-sentence reports and which should not be used in determining punishment." Nunez, supra at 539-40.

Two months later, however, an entirely different panel decided Angelle v. State, 571 S.W.2d 301 (Tex.Cr.App.1978). In Angelle, the trial court employed substantially the same procedure as in Bean, supra. Judge Roberts espoused the view that "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." In October of 1978, the Court's Motion for Rehearing En Banc in Angelle, was denied.

The issue was revisited in Mason v. State, 604 S.W.2d 83 (Tex.Cr.App.1979), where the trial court again bifurcated a guilty plea trial, deferring punishment until it reviewed the probation officer's presentence investigation report. A panel opinion held that "[a]lthough there is some division in thought as to the use of the presentence investigation report ... it was not error for the trial court to recess the proceedings to obtain the presentence investigation report." On April 2, 1980, the Appellant's Motion for Rehearing En Banc in Mason was denied.

Judge Clinton, however, dissented to the denial of Appellant's Motion for Rehearing, Mason, supra at 84-91. Judge Clinton noted that utilizing a presentence investigation report to assess punishment developed as a "local common law procedure" and was frequently employed without objection by the defendant. Judge Clinton also observed in his opinion that ordering a presentence report was authorized only by the Adult Probation and Parole Act, but utilizing it in assessing punishment was not authorized at all. He found that the use of the presentence investigation report via this "local common law procedure" was not permissible. Mason, supra at 88. In Judge Clinton's view, "a trial court is not authorized to order, receive and consider a presentence investigation report in assessing punishment by confinement. In sum, the local common law procedure utilized here should be rejected by the Court." Mason, supra at 90.

Why, then, was the procedure not rejected by the Court? Judge Clinton enlightens us in footnote 21 of Mason, supra at 90.

"... I take it, though, the Court has concluded that by being agreeable then our appellant may not protest now, and we must await the day when an accused refuses to comply with the local common law procedure."

This failure to object to the use of a presentence report in determining punishment grew in significance in the next case to address the issue: Green v. State, 617 S.W.2d 253 (Tex.Cr.App.1981). In Green, a panel opinion authored by Presiding Judge Onion, and joined by Judge Clinton and Judge Tom Davis, the defendant contended that the trial court committed reversible error by utilizing a presentence investigation report to assess the punishment. After noting that the "proper use of such reports is to enable the trial court to pass on the issue of probation, not to determine the punishment to be assessed," Judge Onion went to the crucial aspect of the case.

"There was no objection at the time, and the pre-sentence report, made available to the appellant, was not made a part of the appellate record. Appellant makes no assertion that there were improper matters in the report which the court should not have...