Tamminen v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

With stinging rebukes to both prosecutor and trial judge in this cause, the San Antonio Court of Appeals affirmed the judgment of conviction for aggravated rape, but vacated the sentence of confinement for ninety nine years and remanded the cause to the trial court for assessment of punishment by another district judge. Tamminen v. State, 644 S.W.2d 209 (Tex.App.—San Antonio, 1982). We granted petition for discretionary review presented, respectively, by appellant and the State in order to assay and to evaluate the extraordinary action taken by the appellate court.

While the court of appeals possesses the power and authority to render the judgment it did, e.g., Articles 44.24(b) and 44.-25, V.A.C.C.P., for reasons about to be given we are constrained to find that the record does not justify its ruling.

This unhappy affair began when ex parte the prosecuting attorney, in his words, “furnished the Court ” with a thirty page compilation of material pertaining to the “Ban-didos Motorcycle Club” and its members, collected by the Texas Department of Safety. Because he had been told by his source that its content is “classified information,” not for release to “the general public,” the prosecutor did not provide appellant’s attorneys with a copy of it. He “believed” (but was “not sure”) he informed the judge of the court that the material was “not to be shared with anybody else,” but was “sure” that the judge “would know that.” When on April 1, 1981, attorneys for appellant went to the trial judge’s chambers — apparently also ex parte — “to examine the pre-sentence report and to discuss punishment with the Judge,” they saw the compilation on his desk and made mention of it, but were told by the judge that they “weren’t supposed to see that.” The punishment hearing was held the following day.

To the enhancement allegation of a prior felony conviction, appellant pled true. The DPS Crime Analyst, see note 4, ante, testified inter alia that in 1976, appellant was “a national sergeant at arms” with the Bandi-dos, but he declined to speculate about the functions of one in that position. It was his understanding that appellant presently was no longer a Bandido member. A Harris County Organized Crime Control Unit crime analyst characterized a sergeant at arms as an “enforcer” and explained that a national officer of the Bandidos directs an enforcer “to do a job and they do it.” A former El Paso Police Officer “came into contact” with appellant in November 1976, and since then as ATF special agent had talked with other law enforcement officers about appellant and his reputation. From San Antonio, a detective serving as intelligence analyst and an FBI special agent also testified. All said appellant’s reputation for being a peaceful and law abiding citizen is bad. Without objection a pen packet was admitted to support the repeater allegation; it revealed a 1962 conviction in Alabama for robbery, with punishment assessed at twelve years confinement.

For appellant a Bexar County Deputy Sheriff testified that when he retrieved appellant from a sheriff in Dothan, Alabama in November 1980, everyone he spoke to described him as “a model citizen,” who was free to “go and come as he pleased,” and as they traveled back to San Antonio appellant “wasn’t one moments problem.” Appellant related to the deputy that he had been a Bandidos sergeant at arms, but he had quit that, got married, was living with his wife and they had a baby boy about whom he talked. Appellant himself testified, attesting that he was no longer affiliated with or connected to the Bandidos.

After both sides rested and closed the trial judge addressed appellant, first remarking that from the time the jury returned its verdict he had been “considering what will be the fair and proper punishment to give you in this case,” and then continued:

“... and although I have heard the evidence here today that the State has produced, and although it is the opinion of those who testified that you have a bad reputation ... for being a peaceful and law abiding citizen, I want you to know that my decision as to your punishment is not based upon what these men said, is not based upon the fact that you were once affiliated with the Bandidos, is not based upon the fact that you are a motorcycle rider or any of those facts that were brought out.

⅜ ⅝ ⅜ * ⅝ %

The punishment which I have arrived at for you is based solely on what I heard from the testimony of the two people who testified, the two complaining witnesses. And I have considered the complete range of punishment ... in that regard. * * * [T]he jury found you guilty and that was their decision and it is my responsibility and my decision to punish you based upon that evidence. * * *

Whereupon the trial assessed punishment at confinement for a term of 99 years.

We will not disturb the findings of the San Antonio Court of Appeals with respect to the conduct of the prosecuting attorney nor the assessment that it “represents an act of reprehensible prosecutorial misconduct,” Tamminen v. State, supra, at 217. Nor are we disposed to reject its finding that ex parte acceptance of the DPS compilation by the trial judge is conduct that “cannot be tolerated” in the criminal justice system, id., at 217-218. However, the remedy fashioned by the court in the circumstances has given this Court much concern.

As judges we are still “fully aware of [our] duty to protect the rights of the accused and of the binding effect of new concepts of due process announced by the Supreme Court of the United States,” Charles v. State, 424 S.W.2d 909, 921 (Tex.Cr.App.1967), and like that highest tribunal we continue to determine whether a denial of due process has occurred from “an independent examination of the undisputed facts,” Ex parte Roberts, 165 Tex.Cr.R. 353, 307 S.W.2d 94 (1957). From the record before us we cannot find a violation of due process that taints the assessment of punishment by the trial court, such that a new punishment hearing conducted by another judge is required.

Though at the time punishment was assessed in the case at bar, a trial court was not expressly authorized to order, receive and consider a presentence investigation report, it was common place to do so. See Mason v. State, 604 S.W.2d 83, 84-91 (Tex.Cr.App.1979, 1980) (Dissenting Opinion). The trial court here ordered and received one, and we know that counsel for appellant familiarized themselves with it and that the trial court studied it, see note 8, ante. While we do not know its content, for the report is not in our record, since appellant made no outcry about it we must assume that whatever it reported was not particularly objectionable.

The Supreme Court of the United States has held that an accused is not denied due process of law when a trial court follows the “age-old practice of seeking information from out-of-court sources to guide [its] judgment toward a more enlightened and just sentence,” Williams v. New York, 337 U.S. 241, 251-252, 69 S.Ct. 1079, 1085, 93 L.Ed. 1337 (1949). Then “the Court assumed that after a defendant was convicted of a capital offense, like any other offense, a trial judge had complete discretion to impose any sentence within the limits prescribed by the legislature [and] [a]s long as the judge stayed within those limits, his sentencing discretion was essentially unreviewable and the possibility of error was remote, if, indeed, it existed at all.” Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977). Certainly there was no denial of due process, much less an abuse of discretion on the part of the trial judge in considering the presentence report.

Article 37.07, V.A.C.C.P. contemplates a separate hearing on proper punishment and categorizes what evidence “may be offered,” id., § 3(a), to inform the discretion of the assessor of punishment. But it is not mandatory that the State offer any such evidence, Wright v. State, 468 S.W.2d 422 (Tex.Cr.App.1971), and it has been held that without conducting a separate hearing a trial judge may assess a term of confinement more than the prescribed minimum. Morales v. State, 416 S.W.2d 436 (Tex.Cr.App.1967); Wright v. State, supra, at 424-425.

Here the trial court did hold a separate hearing on punishment and the State did offer reputation witnesses whose testimony implicated appellant’s role in the Ban-didos. Yet, when it came to assessing punishment the trial judge expressly eschewed “any of those facts that were brought out,” making the determination of the court “solely ... from the testimony of ... the two complaining witnesses” — testimony the court of appeals found “depicts a night of terror, brutality and sexual abuse,” and the sufficiency of which appellant did not contest,” Tamminen, supra, at 210. Since “normally there would be no requirement that the evidence heard at the guilt stage of the trial would have to be re-offered at the penalty stage of the trial before it could be considered on the issue of punishment,” Wright v. State, supra, at 425, the allowable discretion of the trial judge in assessing a term of years was limited only by the maximum provided by law. Wright, supra.

All that remains to impeach what appears to be an otherwise fair exercise of discretion is the matter of the DPS dossier. The court below concedes, as it must: “The record is silent as to whether or not the judge read the document, or any part of it...,” Tamminen, supra, at 218. But the record is vocal when it comes to devastating testimony the judge did hear concerning the Bandidos and appellant’s past association with the group — from appellant himself during the guilt stage as well from reputation witnesses at the punishment phase. But, again, the judge specifically stated at least twice that he was not taking into consideration that live testimony. Thus, although the State now presses upon the Court the often utilized “presumption” that the judge disregarded the compilation of material about the Bandidos and appellant, we need not rely on such presumption. Flowers v. State, 482 S.W.2d 268, 269 (Tex.Cr.App.1972). To say that the dossier was given any consideration whatsoever in his punishment deliberations, we would first have to find that throughout the punishment hearing and the subsequent hearing on motion to reduce sentence the trial judge was dissembling — conducting an elaborate charade. There is not even a hint in this record to justify such a finding.

So much of the judgment of the San Antonio Court of Appeals that vacates the sentence and remands the cause to the trial court with instructions for further proceedings is reversed, and the judgment of conviction and sentence imposed by the trial court is affirmed.

ODOM, J., concurs in result.

MILLER and CAMPBELL, JJ., not participating.

. “The courts of appeals ... may enter any other appropriate order, as the law and the nature of the case may require.”

. “The courts of appeals ... may reverse the judgment in a criminal case, as well upon the law as upon the facts.”

. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

. At the punishment hearing the first witness for the State identified himself as an administrative technician, a Crime Analyst, with “the Crime Analysis Service of the Texas Department of Safety,” concerned in his work with several groups in Texas including the Bandidos. In several places the compilation reports that “CAS received information ...” or “CAS has received no information ...” The witness confirmed that appellant’s Bandidos nickname is “Chi-lite;” in the DPS dossier among members known to be convicted felons is listed “37) CHARLES EDWARD TAMMINEN, aka ‘CHI-LITE’. .,°.”

None of this information was news to the trial judge, however. Appellant had testified in his own defense and was cross-examined closely about his prior conviction and past relationship with the Bandidos.

. The prosecuting attorney professed an inability to recall just when in the life of the case he furnished the material to the court. We note that a jury selected March 9, 1981, returned its verdict March 14, 1981, and appellant was remanded to custody “pending receipt of pre-sen-tence report.”

. The aggravated rape of which appellant was convicted is alleged to have been committed December 9, 1976. Thus the references of the reputation witnesses to that year.

. Initially appellant had stated: “I’m not guilty of the charge, but the jury found me guilty. I don’t ... feel bad towards anybody or I don’t feel any inner animosities towards anybody. That’s judidical procedure. And I feel that I got a fair trial and I also feel real bad the two girls got beat up the way they did. There was no doubt about that in my mind that somebody really beat them up really bad.” He flatly denied ever killing anyone or being present when another was killed.

. With leave, appellant’s counsel made a short plea for the court to reconsider, and the judge responded:

“Well, believe me, I have mulled over this decision since and from the time that he was found guilty. I have studied the probation officer’s report. I’m well aware of the fact that he’s married and he has children, well aware of the fact that he has apparently presented no problem to no one in the last couple of years. But, as I said, based upon what I heard that happened in that motel room against my natural inclination to be merciful, I can’t find any mercy, pure and simple, for what happened in that motel room. And what those two girls said he did. So, it was based upon, as I said, not ... what his name is or that he has a reputation from any source or that he’s affiliated with any group. It’s based solely upon the testimony of those two girls and what they have accused him of doing to them and were it any other person with the same situation ... I feel satisfied in my heart that that term would be the same, ninety-nine years. And that’s the way I feel. You are at liberty to file a motion for reconsideration of punishment, as you well know, and the Court will give you a hearing thereon, if you wish. But I have no intentions, at the present time, of changing the punishment that I have found to be a fair and proper punishment in this case.... ”

Indeed, in due course appellant did file a motion to reduce sentence, and it was heard at the same setting at his amended motion for new trial. Both implicated the DPS dossier on Bandidos and its members and invoked due process rights in that regard. After hearing the trial court denied the motions.

. Effective September 1, 1981, that authority was provided by an amendment to Article 37.-07, § 3(d), V.A.C.C.P.

. In capital cases, however, the Supreme Court has since made clear that an accused is “denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain,” Gardner v. Florida, supra, 430 U.S. at 363, S.Ct. at 1207. We do not understand that the due process teaching of Williams v. New York, supra, has been otherwise modified by the Supreme Court.