holding that no due process violation requiring new trial occurred despite trial court’s ex parte receipt of Texas Department of Public Safety Report detailing activities of motorcycle gang to which the defendant belonged and which mentioned the defendant—even though the report was provided to the trial court by the State’s attorney who informed the trial court the report was classified, was not available to the public, and was not provided to defense counsel—where the trial court stated at sentencing that he was basing his sentencing decision solely on the testimony by the complaining witnesses during the guill/innocence phase of trial and nothing else
How later courts described this case
- holding that no due process violation requiring new trial occurred despite trial court’s ex parte receipt of Texas Department of Public Safety Report detailing activities of motorcycle gang to which the defendant belonged and which mentioned the defendant—even though the report was provided to the trial court by the State’s attorney who informed the trial court the report was classified, was not available to the public, and was not provided to defense counsel—where the trial court stated at sentencing that he was basing his sentencing decision solely on the testimony by the complaining witnesses during the guill/innocence phase of trial and nothing else
- adopting the language of the San Antonio court that improper ex parte proceedings between prosecutor and trial court "cannot be tolerated in the criminal justice system."
- in adult prosecution, there is no requirement that the evidence from the guilt/innocence stage would have to be reoffered at the punishment phase before it can be considered
- a trial judge does not deny due process in considering a presentence report before imposing sentence within the statutory limits, even though it is an out-of-court source
Written by the judges who cited it.
The opinion
TEAGUE, Judge,
dissenting.
I would summarily refuse both Petitions for Discretionary Review. This case is a classic example of why business related to a case should be conducted in the place the law has designated for it to be conducted— in the courtroom where the case is assigned.
I dissent to the majority opinion reversing the decision of the Court of Appeals to remand the case for a new punishment hearing to be held before a different trial judge. In reaching its result, I believe the majority totally overlooks the valid reasons the Court of Appeals gave in its opinion for its decision to remand the case.
The center of all the attention is a document; a booklet containing information about the Bandido Motorcycle Club, and its past and present members. The booklet contains a reference to appellant. It is undisputed that the booklet was delivered by a prosecuting attorney to and accepted by the trial judge in this cause — with the act of giving and the act of receiving carried out in ex parte fashion. The booklet was given at some point in time after the trial commenced and before the punishment was assessed. There is also no dispute over the fact that the trial judge guarded the booklet per the instructions he was given by the prosecuting attorney — not to permit or allow anyone, other than himself, to read what was contained in the booklet. Unfortunately, the record does not reflect why the trial judge was given the booklet by the prosecuting attorney, or why he did not admonish the prosecuting attorney for offering the booklet to him in the first *809 place. Apparently, the trial judge was never questioned about what, if any, express use he made of the booklet, or even whether he read any part of the booklet. There is no dispute, however, that the hearsay information contained in the booklet is most unfavorable to the Bandido Motorcycle Club, and its past and present members, including appellant. Subjectively, the booklet indicts appellant for being a past member of that organization. It would defy human experience to state that after receiving the booklet the trial judge merely placed and left it on his desk.
The Court of Appeals in its opinion did not use any one particular reason for holding that this cause should be remanded for a new punishment hearing before a different trial judge, but, instead, gave several reasons for its ultimate decision to remand this cause for a new punishment hearing before a different trial judge: (1) the booklet and the information contained therein are rank hearsay to the appellant and his counsel; (2) by receiving the booklet ex parte the trial judge denied appellant his right to a public trial; (3) contrary to many rules of law, ex parte hearings were held by the trial judge with both sides. Because of all of the above, the punishment hearing may have been tainted, thus mandating a new punishment hearing.
The majority, in reaching its conclusion that the Court of Appeals erred in its decision to remand the cause for a new punishment hearing before a different trial judge, appears, among other things, to compare the booklet to a pre-sentence investigation report. However, the booklet’s contents do not even resemble what might be included in the worst imagined presentence investigation report. It is a compilation of what appears to be nothing but hearsay information, which relates to appellant’s former peers, associates, and the organization to which he had previously belonged. Joseph McCarthy would have been proud to have witnessed such a document, and he and his associates probably would have placed much stock in it, had appellant personally appeared before the hearings conducted at a time not so distant in this country’s past.
For emphasis, the Court of Appeals expressly stated the following in its opinion: “... it is essential not only that justice be done, but also that justice appear to be done. Our criminal justice system is already burdened with too high a degree of public skepticism about its fairness. To avoid further erosions of confidence that our courts do, indeed, treat all litigants with equal fairness, judges and prosecutors alike must keep themselves, like Caesar’s wife, above suspicion in which their fairness and integrity could appear to be compromised.” I totally subscribe to those beliefs, and I further believe that those beliefs caused the members of the Court of Appeals to ultimately make the unanimous decision they did.
A principle long" established in our law is that unless such is relevant to the case, in assessing punishment, trial courts do not punish convicted persons because of who their associates might be, or because a defendant might be a member of a certain organization, which organization has principles and morals which are alien to the average citizen’s principles and morals. Today, however, by reversing the decision of the Court of Appeals, this Court denigrates that principle.
Unquestionably, the majority opinion reflects that its author searched long and hard to find objective facts that would have sustained the decision of the Court of Appeals. However, I find that the majority, instead, should have been searching for subjective and latent collateral factors that caused the Court of Appeals to enter the order it did because that is what its decision is founded upon.
The bottom line of the decision of the Court of Appeals is that because of subjective and latent collateral factors in this cause there may be the appearance that justice was not properly and correctly done in this cause; not that it was not done. To remove any question about the matter, the Court of Appeals correctly, in the interest of justice, ordered a new punishment hearing to be held before a different trial judge.
*810 This record figuratively screams out that its decision is correct. To the majority’s holding that the Court of Appeals erred, I dissent. The majority errs by not affirming the Court of Appeals on this point.