stating that possession of the fullest information possible concerning the defendant=s life and characteristics is highly relevant, if not essential, to selection of an appropriate sentence
How later courts described this case
- stating that possession of the fullest information possible concerning the defendant=s life and characteristics is highly relevant, if not essential, to selection of an appropriate sentence
- under then-extant Article 37.07, Section 3(a), "general rule" was that unadjudicated bad acts were inadmissible at punishment phase, and statute was never construed "to authorize character evidence in the form of specific misconduct, except, of course, inasmuch as that misconduct has become a part of the `prior criminal record' of the accused"
- AIt is axiomatic, for example, that punishment should fit the particular crime. Accordingly, the trial court routinely instructs the jury it may consider all evidence admitted at the guilt phase in making its punishment determination.@
- after holding unadjudi-cated extraneous offenses inadmissible at punishment under article 37.07, section 3(a), holding they were also irrelevant on issue of suitability for probation, because article 42.12 did not make this an issue for the jury’s consideration in recommending probation
Written by the judges who cited it.
The opinion
CLINTON, Judge,
dissenting.
Murphy v. State, 700 S.W.2d 747 (Tex.App.-Dallas 1985), applied literally the definition of “prior criminal record,” distinguished on its facts and thus declined to be guided by a broad statement in Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967) (evidence that is relevant to the application for probation is also admissible), held Article 37.07, § 3 “controls the instant case” and, therefore, concluded: “The unadjudi-cated extraneous offense testimony admitted by the trial court was admitted in violation of article 37.07(3).” Id., at 749-750.
Being in agreement with that particular rationale, but for the leading opinion by Judge Miller, like three other judges I too would concur in the resulting affirmance of the judgment rendered by the Dallas Court of Appeals.
In my view, however, the Legislature has yet to provide in Article 42.12, § 3a (a), that discretion of a jury in determining an application for probation need be informed by any evidence beyond that permitted in Article 37.07, § 3 — much more evidence on the alleged “issue [of] whether appellant was a worthy candidate for probation,” including unadjudicated offenses for the ostensible purpose of showing his “probable future conduct,” slip opinion, at 6.
Therefore, I must dissent to that proposition, albeit expressed by a plurality of three judges. Similar issues await decision in other causes, and more will no doubt be written then.