stating that the amount of punishment to impose lies within the trial court’s discretion and that the sentence will not be disturbed on appeal if it is within the proper range of punishment
How later courts described this case
- stating that the amount of punishment to impose lies within the trial court’s discretion and that the sentence will not be disturbed on appeal if it is within the proper range of punishment
- holding that a trial court abuses its discretion when it imposes a sentence upon a defendant without having any factual basis for that sentence
- holding that a trial court abuses it discretion when it imposes a sentence upon a defendant without having any factual basis for that sentence
- stating it is “the general rule that as long as a sentence is within the proper range of punishment it will not be disturbed on appeal.”
Written by the judges who cited it.
Distinguished
Distinguished by Michael D. Price v. State (2009)
Accordingly, Jackson is inapposite to the argument that Price
Distinguished by Rashard Tramon Mays v. State (2005)
However, the facts in Jackson are inapposite.
The opinion
*815 TEAGUE, Judge,
concurring.
I respectfully concur in the result the majority reaches.
I totally agree with Judge Miller, in the opinion he authors for the majority, that “the trial court’s use, over objection, of a presentence investigation and report, [prepared by the local probation department], in determining what punishment will be assessed, prior to the effective date of the 1981 amendment to Article 37.07(3)(d), Y.A. C.C.P., was error.” (My emphasis). I also totally agree with Judge Miller that such error was not harmless in this instance.
I concur only in the result because I am unable to agree with many of the statements Judge Miller makes in the opinion he authors for the Court. For example, I am unable to agree that the holding in Angelle v. State, 571 S.W.2d 301 (Tex.Cr.App.1978), is “peculiar” to our jurisprudence; especially is this not so when one considers that the presentence investigation and report that was ordered and conducted in that cause was done and made without objection by the defendant.
I will, however, agree that prior to the amendment to Art. 42.12, V.A.C.C.P., many trial court judges of this State ordered a presentence investigation and report only when considering whether the defendant should be granted probation. However, prior to the amendment, there was not any statutory prohibition that would have prevented a trial judge from using such in assessing punishment in general-where the defendant agreed, either expressly or im-plictly, to such occurring. Judge Roberts reached this same conclusion in Angelle, supra, when he stated the following on behalf of the panel in that cause: “We are not convinced that a pre-sentence investigation and report are appropriate only when the issue of whether a trial judge should grant a defendant probation is raised. Rather, whenever an issue of the proper punishment is present, [and the defendant does not object], a presentence investigation and report may be utilized to assist the trial judge in the exercise of his discretion [in the assessment of punishment].” (302). I wholeheartedly agree with what Judge Roberts stated. 1
In this instance, the trial judge, over objection, considered the presentence investigation and report in assessing punishment. This he should not have done. The majority thus reaches the correct result in holding that the trial judge erred and that such error was not harmless.
For the above reasons, I concur in the result the majority reaches.
. It is, of course, time for the Legislature of this State to further amend Art. 42.12, V.A.C.C.P., to expressly provide, as do some States, see, for example, California Penal Code Section 1204, that a presentence investigation and report may be conducted and prepared by other than the local county probation department. The reason this amendment is needed is obvious — not all such investigations and reports are done and prepared in a fair and impartial manner. Furthermore, why should the defendant himself not be able to present to the trial judge, from his standpoint, a comprehensive presentence report that could have a favorable impact on what punishment the trial judge might assess.