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February 19, 2008
“PLEADING TO A PSI”
Houston Criminal Attorney John Floyd Discusses the Dangers of Pleading Guilty to a Court Without a Plea Bargain as to Sentencing.
In December former Department of Public Safety crime lab technician Jesus Hinojosa, Jr. pleaded guilty in a Houston, Harris County, Texas district court to two counts of possession of more than 400 grams of cocaine with intent to deliver, all of which was stolen from the agency’s Jersey Village crime lab. He elected to be sentenced by a judge who, by law, ordered a “presentence investigation” report. On February 8, 2008, after reviewing the PSI and considering arguments from the defense and prosecution, the district court sentenced Hinojosa to 45 years in prison – an extreme sentence harsh enough to beg the question of whether he would have fared better before a jury.
Texas law recognizes two kinds of guilty pleas: a plea to the judge assigned to the case and a plea to a jury. Tex. Code Crim. Proc. § 1.15 (2007) allows a judge to accept a guilty plea. The statute provides:
“No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.”
Tex. Code Crim. Proc. § 26.14 (Vernon 1989) applies to guilty pleas to a jury and it provides that: “Where a defendant in a case of felony persists in pleading guilty . . . if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.”
See also: Lovo v. State, 2007 Tex.App. LEXIS 9088 (Tex.App.-Houston [1st Dist.] Nov. 15, 2007)
The Court of Criminal Appeals in Holland v. State held that “it is well established in a felony case where a defendant has entered a guilty plea before the jury, because there remains no issue of guilt to be determined, it is proper for the trial judge in his charge to instruct the jury to return a verdict a verdict of guilty, charge the jury … as to the punishment issues and then instruct them to decide only those issues.” Id., 761 S.W.2d 307, 313 (Tex.Crim.App. 1988). The court that this “combination instructed verdict and charge on punishment” is not a structural error. Id. Furthermore, the courts have held that after a guilty plea, the trial is “unitary” and merges straight into the punishment phase. See: Houston v. State, 201 S.W.3d 212, 221 (Tex.App.-Houston [14th Dist.] 2006, no pet.). See also: Carroll v. State, 975 S.W.2d 630, 632 (Tex.Crim.App. 1998).
These restrictions on guilty pleas to a jury notwithstanding, most responsible attorneys will opt either for a jury trial or a guilty plea to a jury over what commonly known as “pleading to the PSI.” Tex. Code Crim.Proc. § 42.12(9)(a) (Vernon Supp. 2005-05) applies to “Presentence Investigations.” This statute provides that “before imposition of sentence by a judge in a felony case, the judge shall direct a supervision officer to report in writing on the circumstances of the offense charged, the amount of restitution necessary to compensate a victim, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge.” See: Carr v. State, 2005 Tex.App. LEXIS 8229, at p. 4 (Tex.App.-Tyler Oct. 5, 2005). See also: Tex. Code Crim. Proc. Ann. § 37.07(3)(d) [allows the court to consider a PSI at the sentencing phase of a trial].
The Court of Criminal Appeals has held that the PSI statute is broadly worded and allows the inclusion of “any information” relating to the defendant or the offense. See: Fryer v. State, 68 S.W.3d 628, 629 (Tex.Crim.App. 2002). This frequently allows highly prejudicial inaccurate, false, or misrepresented information to influence a judge’s sentencing considerations. As the court in Carr pointed out: “Information contained in the PSI is not considered an uncontroverted truth. The defendant may, with the court's approval, introduce testimony or other information alleging a factual inaccuracy in the report. A defendant bears the burden of proving that the information contained in a presentence investigation report was materially inaccurate and that the judge relied on inaccurate information. Further, a PSI may include hearsay information.” Id., LEXIS at p. 4-5. See also: Garcia v. State, 930 S.W.2d 621, 624 (Tex.App.-Tyler 1996, no pet.)
Id., at 4-5.
In Carr the defendant pleaded guilty to burglary of a habitation with intent to commit an assault against the victim. He allowed the judge to assess the punishment. The court ordered a PSI which contained a letter written by the victim’s mother and signed by the victim. The letter was addressed to the trial judge, and even though the letter did not meet the statutory requirements of a victim’s impact statement [Tex. Code Crim. Proc. Ann. §§ 56.01 & 03 (Vernon Supp. 2004-05)], the judge nonetheless made the letter part of his sentencing consideration.
“In the letter, Kathaleen described some of the circumstances of the offense charged and painted a troublesome picture of Appellant's character. This is exactly the sort of information a trial judge should be apprised of when assessing a defendant's sentence. Because the information included in the letter falls within the scope of article 42.12, section 9, the PSI could appropriately contain the letter. Accordingly, the trial court correctly considered the letter to determine the appropriate sentence. Id., at LEXIS p. 5 [Internal citations omitted].
When a criminal defendant waives a jury, the trial judge has virtually unfettered discretion to assess punishment with the range permitted by law, including the maximum, – and that sentence “will not be disturbed on appeal absent a showing of abuse of discretion and harm.” See: Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984). This follows “the general rule that as long as a sentence is within the proper range of punishment it will not be disturbed on appeal. Id. See also: Flowers v. State, 2007 Tex.App. LEXIS 301 (Tex.App.-Waco Jan. 17, 2007).
Some defense attorneys argue, and it is the writer’s opinion, that an attorney should not recommend that his/her client plead guilty without a plea bargain affecting punishment. There are two such types of plea bargains: (1) sentencing bargaining and (2) charge bargaining. See: Carender v. State, 155 S.W.3d 929, 930 (Tex.App.-Dallas 2005, no pet.). Sentence bargaining may be for binding or non-binding recommendations to the court on sentences, including a recommended “cap” on sentences and a recommendation for deferred adjudication community supervision. Id., at 931. Charge bargaining involves questions of whether the defendant will plead guilty to the offense that has been alleged or a lesser or related offense and whether the prosecutor will dismiss or refrain from bringing other charges. Id. Both sentence bargaining and charge bargaining affect punishment. Id. See also: Houston v. State, supra, 201 S.W.3d at 2l5, HN1.
Straight, unconditional “pleading to a PSI” is most often not an effective defense strategy. It’s a historical byproduct of a defendant “throwing himself at the mercy of the court,” and mercy is not a judicial commodity often dispensed by most Texas Courts, especially those in Harris County. Basically it sets a defendant up for a sentence that could be harsh and outside what is reasonable for the particular defendant and the facts of the case. Thus, absent an extremely sympathetic defendant and a case with specific factors that demand leniency, pleading without a plea bargain to the court, subject to a PSI, seems to approach mal-practice. This is especially so in Houston, Harris County, Texas, where judges often run on and are elected upon a tough on crime platform. If a defendant is looking for moderation and compassion, looking to a jury is most often the best course.
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