# Smith v. State

> Court of Criminal Appeals of Texas · June 27, 2007 · 227 S.W.3d 753

URL: https://www.frixlaw.com/law-library/cases/9677847

## Case

- **Full name:** Calvin Joseph SMITH, Appellant v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 27, 2007
- **Citations:** 227 S.W.3d 753; 2007 Tex. Crim. App. LEXIS 872; 2007 WL 1829174
- **Precedential status:** Published
- **Opinion:** Dissent by Johnson
- **Judges:** Price, Meyers, Womack, Keasler, Hervey, Holcomb, Cochran, Keller, Johnson
- **Cited by:** 101 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9677847

## How later opinions describe it (automated extraction)

- holding that a trial court, as the sentencing entity, may consider extraneous misconduct set forth in the PSIR over the defendant's objection that “the extraneous misconduct has not been shown to have been committed by the defendant beyond a reasonable doubt” as required by th…
- holding that article 37.07, section 3(a)(1) does not prohibit a trial court, in assessing punishment, from considering extraneous offenses or bad acts contained in the PSI report, even there is no proof beyond a reasonable doubt that the defendant committed these extraneous of…
- concluding that a trial court could consider extraneous acts not proven beyond a reasonable doubt, if the PSI provided some basis from which the trial court could rationally infer that the defendant was responsible
- holding that due process is only limitation, requiring that there be evidence from some source from which it can be rationally inferred that defendant had criminal responsibility for extraneous misconduct
- noting that article 37.07, section 3(d) authorizes the trial court to order a presentencing report and places no condition on the trial court in considering the contents of the presentencing report (citing TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(d))

## Opinion text

JOHNSON, J.,
filed a dissenting opinion.
Tex.Code Ckim. Proc. art. 37.07, § 3(a)(1) states that “[rjegardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to ... any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.” (Emphasis added.) Tex.Code CRIM. Peoc. art. 37.07, § 3(d) states that “[w]hen a judge assesses the punishment, he may order an investigative report as contemplated in Section 9 of Article 42.12 of this code and after considering the report, and after the hearing of the evidence hereinabove provided for, he shall forthwith announce his decision in open court as to the punishment to be assessed.” (Emphasis added.) Tex. *766 Code CRim. PROC. art. 42.12, § 9, speaks to circumstances of the charged offense, appropriate restitution, criminal and social history of the defendant, and any other information about the defendant or the charged offense that the judge requests. Nowhere does it say that the contents of the pre-sentence report are exempt from the established rules of evidence and admissibility.
By its plain language, Article 37.07, § 3(d), limits the evidence that a trial court may consider to “the evidence here-inabove provided for,” that is, the evidence provided for in Article 37.07, § 3(a)(1)— “any matter the court deems relevant to sentencing, including but not limited to ... evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible.... ” Allowing the trial court to consider the kind of evidence at issue here just because it is offered through a side door constitutes an end run around our established rules on admissibility and should not be permitted.
I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9677847. Public record. Not legal advice.