Mason v. State, s. 60777

• Decision Date: 02 May 1979
• Docket Number: Nos. 60777,60778,No. 2,s. 60777,2
• Parties: William Michael MASON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 83

604 S.W.2d 83

William Michael MASON, Appellant, v. The STATE of Texas, Appellee.

Nos. 60777, 60778.

Court of Criminal Appeals of Texas, Panel No. 2.

May 2, 1979.

Rehearing Denied April 2, 1980.

Donald W. Rogers, Jr., court appointed on appeals, Houston, for appellant.

Carol S. Vance, Dist. Atty., Michael C. Kuhn and Jack C. Frels, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, DAVIS and DALLY, JJ.

OPINION

DALLY, Judge.

The appeal in Cause No. 60,777 is from a conviction for the offense of murder; the appeal in Cause No. 60,778 is from a conviction for the offense of aggravated robbery. The punishment in each cause, enhanced by a prior felony conviction, is imprisonment for fifty-five years.

The appellant asserts that he should be granted a new trial because the State breached a plea bargain and because the trial judge, after finding the appellant guilty, recessed the proceedings until he could receive the probation officer's presentence investigation report.

The appellant entered pleas of guilty to both offenses in the same proceeding. His claim that the State breached a plea bargain agreement is based upon the following colloquy:

"THE COURT: I must advise you then, under both the laws of this state and the laws of the United States, that plea agreements are recognized and they are allowed to be made in the Court, but it's the duty of each of the attorneys, the attorneys for the Defendant and the State's attorney, to fully disclose to the Judge at the beginning of the proceedings any plea bargain agreement that has been made and has been recommended to the Judge. So, I'll ask you now to tell me for the record what you believe is to be recommended to the Court concerning punishment or are these matters being submitted to the Court without recommendation?

"MR. FRELS: Without recommendation.

"THE COURT: Mr. Mason, do you understand that if the Court hears your pleas of guilty and considers the matters without any recommendation being made, the Court will order a pre-sentence investigation to assist the Court in determining what a proper punishment will be?

"DEFENDANT: Yes, I do.

"THE COURT: Are you agreeable to proceed on that basis?

"DEFENDANT: Yes.

"THE COURT: Mr. Toomey, is this agreeable with the Defense that the matters will be submitted to the Court for a pre-sentence investigation?

"MR. TOOMEY: Yes, Your Honor.

"THE COURT: Mr. Frels, is it agreeable with the State?

"MR. FRELS: The State is agreeable to proceeding, yes, your Honor. However, the record must be clear that the State will take a very definite position on punishment at the time of the P. S. I.

"THE COURT: Is this the understanding between the State and the Defense?

"MR. TOOMEY: Yes, your Honor.

"THE COURT: Mr. Mason, do you understand that as well?

"DEFENDANT: Yes, I do."

(Emphasis added.)

After the court had obtained the presentence investigation report, the State argued that the appellant ". . . ought to be sentenced for at least ninety-nine years or life." This argument was made without objection and appellant did not request to withdraw his plea of guilty. In the circumstances of this case we find that there was no breach of a plea bargain agreement. Cf. Bass v. State, 576 S.W.2d 400 (Tex.Cr.App.1979).

The appellant's complaint that the trial court improperly recessed the proceedings until he could receive the probation officer's presentence investigation report is without merit. Although there is some division in thought as to the use of the presentence investigation report, see Angelle v. State, 571 S.W.2d 301 (Tex.Cr.App.1975); Bean v. State, 563 S.W.2d 819 (Tex.Cr.App.1978); McKelvey v. State, 570 S.W.2d 95 (Tex.Cr.App.1978), it was not error for the trial court to recess the proceedings to obtain the presentence investigation report.

The judgments are affirmed.

Before the court en banc.

DISSENTING OPINION ON APPELLANT'S MOTION FOR REHEARING

CLINTON, Judge, dissenting.

Today a majority overrules without written opinion a motion for rehearing that appellant was granted leave to file in order, I thought, for the Court to decide and write on the problem presented. Because it does neither I respectfully dissent.

Essentially at issue here is the validity of a procedure utilizing a presentence investigation report that appears to have developed from what may be called the "local common law" of the jurisdiction from which this appeal comes to us, and perhaps others as well. The panel opinion on original submission, without resolving it, characterized the prior treatment of the localized procedure by various panel opinions as reflecting "some division in thought" regarding use of the presentence investigation report under the local common law procedure. Before addressing the questions presented, it is appropriate that the decisions producing that division of thought be identified.

In Thom v. State, 563 S.W.2d 618 (Tex.Cr.App.1978), writing for a unanimous panel, Judge Odom, as is his wont, stated succinctly that "there is no bifurcated trial at a plea of guilty trial." ¹ Thus, refusal of a trial court to permit an accused to call witnesses to testify at sentencing, after the trial court on an earlier day had found him guilty and assessed punishment, was not error. The next week the same panel handed down its opinion in Bean v. State, 563 S.W.2d 819 (Tex.Cr.App.1978); the trial court had bifurcated a plea of guilty trial in that, having found the accused guilty on his plea and without assessing punishment, the trial court reset the case "in order to obtain a presentence investigation." Eyeing that procedure, Presiding Judge Onion took the occasion to opine 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," Bean, supra at 821. He reiterated his views in Nunez v. State, 565 S.W.2d 536, 539-540 (Tex.Cr.App.1978) (Concurring Opinion). Some three months later, however, an entirely different panel decided Angelle v. State, 571 S.W.2d 301 (Tex.Cr.App.1978), in which the trial court had followed substantially the same procedure as in Bean. Judge Roberts developed a different view: ". . . (W)henever 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," Angelle, supra at 302. In the fall the principles expressed by Presiding Judge Onion in Bean, supra, and the terse pronouncement of Judge Odom in Thom, supra, were revisited by Judge Tom Davis for a unanimous panel in McKelvey v. State, 570 S.W.2d 951, 954 (Tex.Cr.App.1978) and found to be still viable. October 18, 1978, the Court's Motion for Rehearing En Banc in Angelle, supra, was denied.

Pointing to some of these developments in his Motion for Rehearing En Banc, our appellant urges the Court to resolve the "confused state of the law discussed herein." We granted leave to file the motion with the idea that the chasm of disagreement over this matter may be firmly bridged. Laying first an historical foundation, I then turn to bridge-building.

Unlike the federal judicial system in which assessment of punishment, consideration of probation and pronouncement of sentence are always the sole prerogatives of the trial court, in Texas the right to trial by jury, demanded in our Declaration of Independence, ² has been zealously guarded. See Article I, §§ 10 and 15, Texas Constitution and Article 1.05, V.A.C.C.P. Even when an accused in a felony case persisted in pleading guilty, if punishment was not absolutely fixed, the trial court was required to empanel a jury to assess punishment upon evidence submitted, Article 502, C.C.P.1925, "evidence" meaning "legal evidence, such as would be authorized to go before a jury," Woodall v. State, 58 Tex.Cr.R. 513, 126 S.W. 591, 593 (1910). Not until 1931 was one pleading guilty in a felony case less than capital permitted to waive trial by jury, see McMillan v. State, 122 Tex.Cr.R. 583, 57 S.W.2d 125 (1933) and Hardin v. State, 57 S.W.2d 127 (Tex.Cr.App.1933); nor until then was a trial court, acting alone, statutorily authorized in certain felony offenses to which an accused pled guilty before the court "to suspend the sentence . . .During his good behavior," Article 776a, C.C.P. 1925. ³

Whether by trial court or jury, however, punishment was assessed upon a consideration of evidence, generally the circumstances surrounding commission of the offense on trial, see Bolton v. State, 123 Tex.Cr.R. 543, 59 S.W.2d 833 (1933), and suspension of sentence was determined after presentation of evidence that the accused had never been convicted of a felony and testimony as to the general reputation of the accused, Articles 776, 776a, 778, C.C.P.1925. Anything like a presentence investigation report was alien to assessment of punishment or suspension of sentence. ⁴

Not until more recent times did the Legislature undertake statutorily to draw contours and bounds for assessment of punishment.

The 1965 revision of the code provided the "Alternate procedure" for assessment of punishment, Article 37.07, V.A.C.C.P., then seen as becoming, perhaps, "the most controversial in the new Code," Special Commentary by Presiding Judge Onion. Section 2(b) then and § 3(a) now, the latter making clear that it is "regardless of the plea," ⁵ contemplates that whether the punishment be assessed by judge or jury evidence may be adduced "as to the prior criminal record ⁶ of the defendant, his general reputation and his character." ⁷ Of course, this Court held early on in Allaben v. State, 418 S.W.2d 517, 519 (Tex.Cr.App.1967) that punishment evidence "is by no means so limited," Basaldua, supra, 481 S.W.2d at 854, and embraces that which is "legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any," Allaben, supra, 418 S.W.2d at 519. Moreover, after...