*1 dissent. To its decision that
has not invoked the Texas Constitution and
Texas law on subject, I also dissent. TAMMINEN, Appellant,
Charles Edward Texas, Appellee.
The STATE of
No. 103-83. Texas,
Court of Criminal Appeals of
En Banc.
July Huffman, Brock Campion,
Charles San Antonio, for appellant. Antonio, Chapman,
David K. San Judge Barrera. Jr., Dist. Ed- Millsap, Atty.
Sam D. III, Shaughnessy, Atty., ward F. Asst. Dist. Huttash, Antonio, Atty. Robert State’s San Walker, Atty., and Alfred Asst. State’s Austin, for the State. *2 prosecutor provide
OPINION ON PETITION did not attor- APPELLANT’S appellant’s (but copy with a of it. He “believed” neys FOR DISCRETIONARY REVIEW sure”) he informed the was “not CLINTON, Judge. the court that the material was “not be stinging prosecutor With rebukes to both else,” anybody shared with but was “sure” cause, and trial in this the San Anto that.”5 When that the “would know nio Court of Appeals judg affirmed the 1, 1981, for April attorneys appellant ment aggravated of conviction for but rape, judge’s appar- went to the trial chambers — vacated the sentence of confinement ently parte pre- also ex examine —“to ninety years nine and remanded the cause report sentence and to discuss to the trial court for punish compilation assessment of Judge,” they with the saw the it, by judge. another district on his desk and made mention of but Tamminen by they were told that “weren’t (Tex.App. S.W.2d 209 — San that.” The Antonio, supposed to see 1982). granted We petition for hearing following day. was held the discretionary presented, review respective ly, by appellant and the in State order to allegation prior To the enhancement assay and to evaluate the extraordinary conviction, true. The felony appellant pled action taken appellate court. 4, ante, testi- Analyst, Crime see note DPS 1976, was “a appellant fied inter alia that While the court of appeals possesses at with the Bandi- sergeant national arms” power and to render authority judg dos, about the speculate but declined did, ment it e.g., 44.24(b)1 Articles and 44.-2 It was position.6 functions of one in that 5,2 V.A.C.C.P., for reasons about to be understanding appellant presently his given we are constrained to find that member. A Har- longer was no a Bandido justify ruling. record does not its Unit County Organized ris Crime Control began parte This affair when ex unhappy sergeant analyst crime characterized words, prosecuting attorney, his “fur- that a explained an “enforcer” and arms as ”3 thirty page nished the Court with a com- an of the Bandidos directs national officer pilation pertaining of material to the “Ban- A job they and do it.” enforcer “to do a members, Motorcycle didos Club” and its into El Paso Police Officer “came former 1976, the Texas Department collected of Safe- in November appellant contact” ty.4 Because he had been told his source special agent since then as ATF information,” its content is “classified other law enforcement officers talked with From reputation. and his public,” not for release “the about general “Chi-lite;” among may appeals members 1. “The courts of ... enter in the DPS dossier “37) order, appropriate felons is listed other as the law known to be convicted TAMMINEN, may require.” aka ‘CHI- nature of the case EDWARD CHARLES .,°.” LITE’. may appeals 2. “The courts of ... reverse was news None of this information case, judgment upon in a criminal as well judge, had testified however. law as the facts.” close- and was cross-examined his own defense past ly relation- conviction and emphasis supplied throughout ship 3. All with the Bandidos. opinion indi- writer of this unless otherwise attorney professed prosecuting an inabili- 5. The cated. just ty life of the case he when in the to recall We note the material to the court. furnished 4. At the the first witness jury its returned selected March himself as an adminis- for the State identified 14, 1981, verdict March technician, Analyst, trative a Crime with “the pre-sen- custody receipt “pending manded to Analysis Depart- Service of the Texas Crime report.” tence Safety,” in his work with ment of concerned including groups in Texas the Bandidos. several aggravated rape reports of which places compilation 6. In several alleged have been committed has convicted received information ...” or “CAS “CAS Thus the references December The witness con- received no information ...” year. reputation to that witnesses Bandidos nickname firmed that Antonio, a San detective serving give case,” as intelli- ment you this and then gence analyst and an special agent FBI continued: testified. All said appellant’s reputation “... although have heard the evi- a peaceful abiding and law citizen dence today here has pro- State is bad. objection Without pen packet duced, although it is the opinion admitted to support repeater allegation; those who testified that you have bad *3 it revealed a 1962 conviction in Alabama for ... reputation peaceful robbery, with punishment assessed at citizen, law I want to know abiding you twelve years confinement. that my your punishment decision as to pellant they traveled back to free to “go and come as he pleased,” and as described him as “a model Sheriff For appellant November from a sheriff in testified that a Bexar everyone when he retrieved ap- San Antonio Dothan, citizen,” County he spoke to Alabama who was Deputy appel- not based not based based cycle brought out. once affiliated with the n rider or upon n upon upon the fact that any n what these men the fact of those facts that were [*] you Bandidos, that are a motor- n you said, is not % were lant “wasn’t one problem.” Ap- moments I punishment which have arrived pellant related to the deputy that he had solely on what I heard you at for is based been a arms, Bandidos sergeant at but he from testimony of the two people quit that, had got married, living with testified, complaining two wit- who his wife they had a baby boy about nesses. And I have considered com- whom he talked. Appellant himself testi- plete range ... in that * * * fied, attesting that he longer was no affili- regard. jury you found [T]he ated with or connected to the Bandidos.7 guilty and that was their it decision and marking that After both sides rested and closed the addressed from the time the jury re- appellant, first is my responsibility punish you [*] [*] [*] based upon my that decision to evidence. turned its verdict he had been “considering Whereupon assessed at what will be the fair and proper punish- confinement for a term 99 years.8 Initially appellant guilty simple, had happened stated: “I’m not for what in that motel charge, jury guilty. but the found girls me I room. And what those two said he did. anybody So, don’t ... feel said, bad towards upon, or I don’t it was based as I not ... what any anybody. feel inner animosities reputation towards his name is or that he has a from judidical procedure. That’s any And I feel that I any or source that he’s affiliated with got a fair trial and I also feel real group. solely upon testimony bad the two It’s based girls got up way they beat did. There was girls they of those two and what have ac- my somebody no doubt about that in mind that any doing cused him of to them and were it really up really flatly beat them bad.” He de- person other with the I same situation ... killing anyone being present nied ever or when my feel satisfied in heart term another was killed. same, years. ninety-nine would be the And way liberty that’s the I feel. at You are leave, appellant’s 8. With punish- counsel amade short file a motion for reconsideration of ment, plea reconsider, know, the court to you and the well and the will responded: thereon, give you hearing you if wish. But intentions, time, present at have no “Well, me, believe I have mulled over this changing that I have found to decision since and from the time that proper punishment be a fair and in this guilty. probation found I have studied the ” case.... report. officer’s I’m well aware of the fact Indeed, in due course did file a children, that he’s married and he has well sentence, motion to reduce and it was heard apparently aware of the fact that he has setting presented at his amended motion for problem same no to no one in the last implicated years. But, said, the DPS dossier on couple new trial. Both as I based Bandidos and its members and invoked due happened what I heard that in that motel process rights regard. against my in that After room merciful, natural inclination to be any mercy, pure trial court denied the motions. I can’t find
We will not disturb the findings reported particu that whatever it was not San objectionable. Antonio Court of respect larly to the conduct of the prosecuting attorney Supreme Court of United nor the assessment that an “represents has held an accused is not de States act reprehensible prosecutorial miscon- process nied due when trial court duct,” Tamminen v. at 217. supra, practice follows the in “age-old seeking Nor disposed are we reject finding its formation from out-of-court sources to that ex parte acceptance of compi- DPS more guide judgment enlight toward a [its] lation is conduct sentence,” just New ened Williams v. “cannot be justice tolerated” in criminal York, 241, 251-252, U.S. S.Ct. id., system, However, at 217-218. rem- (1949). Then “the L.Ed. edy fashioned the court in the circum- Court assumed after defendant given has stances this Court much concern. offense, like capital convicted of a oth offense, complete er a trial dis *4 As judges we of “fully are still aware any to within the impose cretion sentence duty protect ac rights the of the [our] prescribed by limits legislature [and] binding cused and of the of new effect long judge within those stayed [a]s concepts process of due by announced limits, his was sentencing discretion essen Supreme States,” of United tially unreviewable and the of possibility State, 909, (Tex. Charles v. 424 S.W.2d 921 remote, if, indeed, was it existed at error Cr.App.1967), highest and like that tribunal 349, 358, Florida, all.” Gardner v. 430 U.S. we continue to determine whether a denial 1204, 1197, (1977).10 51 393 97 S.Ct. L.Ed.2d process due has occurred from “an inde was no Certainly proc there denial due pendent undisputed examination of the ess, much less an abuse of discretion on facts,” Roberts, 353, parte Ex 165 Tex.Cr.R. part considering of the trial (1957). 307 94 record S.W.2d From the presentence report. before us we cannot find a violation of due process that pun taints the assessment of Article V.A.C.C.P. contem court, new by ishment the trial such that a punish a plates separate hearing proper on punishment hearing by “may conducted another and evidence categorizes ment what offered,” id., required. 3(a), is inform discre be § tion of the But punishment. assessor as Though at the time was mandatory offer the State bar, in the case a sessed at trial court State, evidence, Wright such v. order, not expressly receive authorized held (Tex.Cr.App.1971), and it has been presentence and re investigation consider conducting hearing separate without port, place it was common do so. See term of judge may a trial assess a confine State, 83, (Tex. Mason v. 604 S.W.2d 84-91 prescribed than the minimum. more Cr.App.1979, 1980) (Dissenting Opinion).9 (Tex.Cr. v. Morales The trial court here ordered and received 424- App.1967); Wright supra, v. at one, we know and that counsel for with it familiarized themselves and that it, sepa ante. trial hold trial court studied see note Here the court did content, and the we do not know its rate on State While record, whose testi report not in did offer witnesses reputation our since in the Ban- outcry mony implicated appellant’s it we assume role made no must 1, 1981, authority opportu- 9. Effective September no he had basis nity information which Florida, provided explain,” 37.- deny was 07, an amendment to Article or Gardner 3(d), supra, V.A.C.C.P. § 1207. We do at S.Ct. at 430 U.S. teaching process not understand that the due however, cases, Supreme 10. In capital York, supra, has been other- Williams Newv. Court has since made clear an accused Supreme wise modified Court. process of law when the death “denied due imposed, part, least at sentence Yet, didos. when it assessing pun- came to So much of the judgment of the San ishment the Antonio expressly eschewed Court of that vacates the “any out,” of those sentence brought facts that were and remands the cause to the trial court with instructions for making proceed- further determination of the court reversed, ings is the judgment of con- “solely ... from the ... testimony of viction sentence imposed by two complaining testimony the witnesses” — court is affirmed. court of appeals “depicts night found terror, brutality abuse,” and sexual ODOM, J., concurs in result. sufficiency con- did not test,” Tamminen, supra, at 210. “nor- CAMPBELL, Since JJ., not par- MILLER and mally there would be requirement no ticipating.
the evidence heard at the guilt stage of the ONION, Presiding Judge, concurring in trial would have to be re-offered part dissenting part. penalty stage of the trial before it could be aggravated was convicted of considered on the issue of punishment,” rape by a jury. punishment, His enhanced Wright State, supra, at the allowable by allegation proof prior robbery of a discretion of the in assessing a conviction, was assessed the court at term years only by limited the maxi- (99) ninety-nine years’ confinement. Wright, provided mum law. supra. appeal panel On Antonio San judgment, affirmed the All that remains impeach what but vacated the sentence and remanded the appears to be an otherwise fair exercise of *5 cause to the trial court for the re-assess discretion is the matter of the dossier. DPS ment punishment by of another district concedes, The court below as it must: “The judge, being the held original judge record is silent as to whether or not the disqualified. In assaying appellant’s eighth judge document, read the any part or of ground error, appellate of the court found it...,” Tamminen, supra, at 218. But the the prosecutor guilty reprehensible pros- of record is vocal when it comes to devastating misconduct, ju ecutorial and concluded the testimony the concerning did hear the dicial misconduct could not be tolerated. Bandidos and appellant’s past association Tamminen v. (Tex. with the group appellant himself —from App. 1982). Antonio — San during the guilt stage as well reputa from of turning eighth ground Before to the tion punishment witnesses at the phase. error, the basis for the vacation But, again, the stated at specifically sentence, a recitation of the facts is in brief least twice that taking he was not into order. The court commenced San Antonio Thus, consideration that live testimony. al its discussion of the facts: “The voluminous though presses the State now terror, brutality, depicts night record Court the often “presumption” utilized spins and sexual abuse. The evidence judge disregarded compilation from which web of facts and circumstances material appellant, about the Bandidos and virtually and com- jury justified was we need not rely presumption. on such pelled aggravated to convict appellant Flowers v. (Tex. rape.” Cr.App.1972). say To the dossier was given any consideration whatsoever in his P- and another prosecutrix The punishment deliberations, we would first woman, C_, years seventeen both have to find that throughout punish Inn on age, Lamp went to the Post and the subsequent hearing they There night of December on motion to reduce sentence the trial and his with came in contact C_ dissembling conducting an elaborate was threatened friends. — P_was chair and charade. There is not even a hint in this out of her yanked in the justify drugs. record to such a Later finding. try get told to some P_ C_ lot, parking where sergeant was “a national at arms with gone had with appellant and two men of Another analyst Bandidos.” crime fearful, whom they were a friend of County Harris at arms sergeant testified P-gave her baggies three or four in the Bandidos was an “enforcer.” Three men, marihuana. The all three members ap- other law enforcement officers testified Motorcycle Club, the Bandido girls took the being peaceful pellant’s reputation for in appellant’s pickup truck to a motel where law-abiding citizen was bad. appellant had a room. longer affil- Appellant testified he was no At the girls room were forced to a Bexar iated with the Bandidos. He called gunpoint. disrobe at left. One of the men sheriff, him County deputy who returned man, “Shooter,” Appellant and another deputy Alabama in 1980. The testi- from girls then forced the perform oral sex in Ala- fied to him described they with them and inter- each had sexual a model citizen and bama girls course with both of The girls. him on the re- give any problems did not were brutally pistol whipped. beaten and told trip turn to San Antonio. C- her rectum sodomized in sergeant deputy he had been a Bandidos gun. they use told girls were arms, married quit, gotten but had killed if would be screamed. they baby boy. had a The girls badly were so at one bleeding point appellant put them in the bathtub stage At the close of the penalty up. to clean bleeding continued im- at 99 years’ assessed the girls were returned to the bedroom. range of prisonment, which was within the Appellant suggested girls, they “waste” alleged crime. taking but “Shooter” recommended error, eighth Appellant’s ground girls somewhere else. as- caused the vacation of the noise, As a result of the were police sessed, read: police gain called. While the trying were reversible “The Trial Court committed entrance, C_, a naked with blood when, sentencing, error face, her came out the and fell in the door *6 appellant evidence and denied ceived to get hall. P-was on a bed unable evi- counsel to this appellant’s access up. Appellant companion had de- his dence, secretly presented which had been win- parted, apparently through open an such prosecution, to the Court the the dow. was near apprehended compiled evidence document pistol motel and a .45 caliber automatic Safety. Public Department the Texas at- found near where was seen appellant hearsay rank The document itself is climb a his tempting during flight. fence prejudicial appellant. to the Such highly At the the trial before penalty stage of right denied the conduct court, jury’s eighteen days the after the I, 10 confrontation under Article Section verdict, of “true” plea entered a of Texas of the Constitution of the State felo- allegations concerning prior to the the 1.05 Ann.C.C.P., Articles Vernon’s support conviction. ny Record evidence to a the appellant’s and 1.25 and offered, showing allegations of the I, 10 of under public trial Article Section with a robbery a 1962 Alabama conviction of Texas the State Constitution imprison- (12) years’ of twelve 1.05 and Ann.C.C.P., Article and Vernon’s Safety Department ment. A of Public 1.24.”1 Analyst Crime testified in 1976 State, (Tex.Cr.App. complained ground 595 106 drid of er S.W.2d 1. The State 134, compliance 66 1979), ror was multifarious and not 449 101 S.Ct. cert. den. U.S. State, 9, V.A.C.C.P., (Tex. Ely 58; and that with Article 416 § S.W.2d 582 L.Ed.2d Williams v. nothing presented for review. Cr.App.1979). State, (Tex.Cr.App.1980); Ma 605 S.W.2d 596
805
At the hearing
duct,
3A(4),
the motion for new
Canon No.
and concluded the
trial,2 it was established
testimony of
judicial
could not
conduct
be tolerated.
one of appellant’s lawyers that on the day
of Appeals
Court
found the trial
before the penalty stage of the trial defense
accepted
received and
the document
counsel were in
chambers,
the trial judge’s
use
it despite
and made
apparently to see the pre-sentence report
(1)
not for-
the fact
document was
which had been ordered and to discuss the
offered into evidence
to the
mally
there,
to be assessed. While
imposition
punishment;
counsel observed on the
desk a
judge’s
(2)
objection
the fact there was no
booklet or document dealing with the Ban-
penalty stage
possible
to the court’s
dido Motorcycle Club.3 One
lawyers
of the
document,
though
consideration of
requested
booklet,
to see the
but the trial
appellant’s counsel had observed the doc-
permit
declined to
counsel to examine
day
ument in the
chambers
judge’s
the document.
before;
It was also shown that sometime after
silent,
(3) the fact that the record is
as
the trial commenced assistant district attor-
Appeals acknowledges,
as to
ney Dick Ryman
furnished the trial
document;
whether
read the
with a document compiled by the Depart-
,
(4)
judge expressly
the fact
of Public Safety regarding the Bandi-
penalty stage
do
stated at the
that he was
Motorcycle Organization. Ryman testi-
fied he
basing
furnished the
the assessment of punishment
document for general
information purposes.
He
testimony
prosecutrix
denied it was to
influence
assessed. He
and her companion
night
ques-
did
on the
not furnish a copy of the same to defense
tion. This did not include the document.
counsel because he had been informed it
addition,
In
if the evidence was received
was classified
Ryman
information.
accepted
as found
obtained the document
investigator
from an
Appeals, that court did not deal with the
in his office.
well
rule that
judge,
established
The exact circumstances of how the docu-
facts,
the trier
penalty stage
at the
ment was delivered to the judge were not
trial,
of the
is presumed
disregard
to have
developed.4
well
At the close of the new
ed
evidence that was
admit
improperly
trial hearing,
the trial judge ordered the
State,
ted. Kimithi v.
document
A,
marked
Exhibit
State,
(Tex.Cr.App.1977); Maden v.
part
and made a
appellate
record.
Flowers v.
(Tex.Cr.App.1976);
S.W.2d 189
State,
(Tex.Cr.App.
The Court of Appeals found that
in re-
Smith v.
1972);
(Tex.
during penalty stage of the trial. Her were not State, preserved of error (Tex.Cr. ground nandez v. 556 337 S.W.2d State, review. App.1977); supra. Kimithi v.
Further, State, examining that after Angelle 571 It is also observed v. S.W.2d A) (appellant’s Exhibit 303 it was made the sealed document (Tex.Cr.App.1978), Appeals wrote: clear that the burden is on the defendant to the Court of objected show that he and that document, appears to be a “The on or even im- judge “relied considered” compilation of information proper determining punishment. evidence in Club, names gives Motorcycle Bandido here his bur- appellant did sustain regarding some and other information den. purports of the club. It the officers prison, under names of members record noted, appellant As earlier did not felonies, indictment, convicted of those object stage at the of the trial to penalty being sought by those and some of any consideration of the document seen name Appellant’s officers. enforcement chambers de- day judge’s before The document has both is in Exhibit A. trial, new fense counsel. In his motion for information; general specific Paragraph VIII: appellant alleged most as a document can be characterized punish- “It is believed that to the ” Bandidos .... unfavorable to the the court was furnished hearing, shows materials, of the document and discussions An examination parte with ex one only on thereto, appears name relative which are considered Defendant, page.5 to the highly prejudicial be purpose which sole would be to in- prop- from the evidence undisputed It is to such
flame the mind of the trial court that erly before the degree impartial punishment that an Motorcycle Bandido a member of the hearing impossible.” would be officer, Bandido Club, that a was a national en- was an sergeant at arms like motion, new trial At the on the testi- forcer, admitted in his etc. objected at no time or con- Bandi- mony he had been a member to confron- tended he was denied dos. public tation or trial. He raises denied ap- contentions for the first time on
these 313,326 State, v. 568 S.W.2d In Chambers peal. wrote: this court (Tex.Cr.App.1978), of evidence “The admission improper made in the trial objection Where the if the reversible error does not constitute is not the same as court the defendant to which by facts same facts were shown properly he has not urged appeal, v. addressed. Watson objection no complaint Hodge for review. preserved State, (Tex.Cr.App.1976); 619 532 State, S.W.2d (Tex.Cr.App.1982); v. 631 754 S.W.2d State, (Tex.Cr. 213 Hayles v. 507 S.W.2d State, (Tex.Cr. 554 Nelson v. 607 S.W.2d State, Brasfield v. App.1974).” 604 See parte Scarbrough, Ex App.1980); How (Tex.Cr.App.1980); 600 288 Reger v. S.W.2d (Tex.Cr.App.1980); 170 S.W.2d (Tex.Cr.App. State, 597 599 State, ard v. S.W.2d (Tex.Cr.App.1980); 868 598 S.W.2d State, 1979); Boles v. S.W.2d State, (Tex.Cr.App.1978); Crocker v. State, 573 v. Crocker (Tex.Cr.App.1980); v. 559 S.W.2d veen McIl 815 Wood (Tex.Cr.App.1978); Bouchillon (Tex.Cr.App.1977); *8 State, (Tex.Cr.App.1974). 37 511 S.W.2d (Tex.Cr.App.1976). 319 540 S.W.2d felony appellant had a The fact members of the Bandi- 5. Under a list of known Lite, age, appellant’s conviction, is known as Chi be convicted felons found dos to etc., page other sources. 14 as follows: evidence from name on were in ‘Chi-Lite’, Tanninen, aka “Charles Edward 2,005,983, w/m, 3-23-44, Texas DPS # date DL # 0832 8743.”
807
trial,
It is noted
pre-sentence report
that the
the penalty stage
document at
record,
not
in the
so we are unable to
eomplaint in the
new
and the
motion for
determine how much of the
informa-
same
comport
complaint
with the
trial does not
tion
in
contained
the document was re-
Thus no review
appeal.
preserved.
on
in
report
flected
said
The pre-sen-
as well.
Further,
examination of the
an
document
report
tence
was before the court without
con-
some of the information
shows that
objection,6 and it had
been seen
apparently
facts
was shown
other
tained therein
counsel.
rep-
further,
evidence.
properly in
Still
Further,
the reputation
the Bandido
of
the Bandidos is common knowl-
utation of
Motorcycle Club
knowledge
is common
to
any
can be said to be
error
edge.
If it
most
personnel
enforcement
and the
error,
least
all,
is harmless
or at
the error
judges
trial
trying criminal cases. One
not
The
not reversible error.
only
needs
to read
of this court
opinions
to
cross-
right
denied the
confrontation and
the last
years
over
few
of that
be aware
any
public
or denied a
trial to
examination
reputation.7
by the
Appeals.
extent as found
Surely it
a
judge
cannot be said that
trial
of this court now states
majority
The
put
knowledge
must
aside his common
in
a
of
process
“cannot find
violation
due
deciding on the punishment
to be assessed
punishment by
taints the assessment of
criminal defendant.
court,
such that
new
The facts do not
show that the trial
is re-
conducted
another
accepted the document into evidence or that
of
but the
quired.8
fully agree,
Court
he considered or
otherwise utilized
doc-
viola-
Appeals
not base its decision on a
did
ument. The record does not show he even
however,
The
process.
majority,
tion of due
read the document.
If it was before the
appellate
does
the basis of the
not discuss
court,
presumed
it is
the court disre-
opinion
vacating the sentence.
below
evidence,
garded any inadmissible
and the
majority
expressly
declines
appellant did not sustain his burden to show
findings of the
upon
the court considered
disturb the
improp-
or relied
er evidence. There
objection
prosecut-
was no
the with
to the conduct of the
respect
purpose
may
properly
primary
6.It
has been said that the
of a
now be
considered
matters
presentence report
using
pre-sentence report
provide
to de-
the court
the court
information
as well as the issue
which to base a rational deci-
termine
Rodriguez
probation.
probation.
v.
sion
the motion for
State,
State,
(Tex.Cr.App.
In Lee v.
tolerated’ in sys- joins opinion. the criminal in this W.C. tem. ...” TEAGUE, Judge, dissenting. While the the prosecutor action of in fur- I Petitions summarily would refuse both nishing the to be document is not commend- case is a Discretionary for Review. This ed, facts, I find of the difficulty, light in in to a example why classic business related condemning the judge trial without more. place the case be conducted in the should “furnishing” The facts of the are clear- not for it be conducted— designated law has to developed. ly Though the document was assigned. the where the in courtroom case judge’s by seen in the chambers defense revers- majority opinion I the dissent to counsel, the silent as to he record is whether to Appeals the the Court of ing decision of same, read the the expressly stated remand case for a new the upon punish- evidence which the assessed trial held before a different to be ment was It not the based.9 did include result, the its I believe judge. reaching In of Appeals document. Neither the Court valid reasons totally overlooks the majority nor the clarifies majority today what its for gave opinion the facts, by points meant nor to “acceptance” the remand case. its decision to constituting the same. While trial every judge pre- must exercise extreme caution to is a docu- of all the attention center attorneys party vent either or others to ment; containing information a booklet evidence, documents, show parte ex him Club, Motorcycle and its Bandido the etc., him, relating to I pending a case before booklet members. The past present Texas, find no violation Bar of of State It appellant. to contains a reference Conduct, Canon Rules Code of Judicial the booklet was delivered undisputed that 3A(4),10 the record this No. under before attorney accepted prosecuting by Those in the armchairs of the court. of us this the judge the cause —with by courts ivory appellate towers of should receiving act of and the act of giving standing, when hip. Only shoot from The book- ex fashion. parte carried out in of an adequate after careful consideration time after point was at some given let cause, record, we adequate and with should punish- and before the the trial commenced at at the fire bullets of condemnation those dispute There no ment assessed. is also criminal I dis- justice system. of our front guarded that the trial over the fact majority’s reject sent to the refusal giv- he was the instructions per the booklet misconduct judicial by the Court finding of per- attorney prosecuting en —not Appeals. himself, to other than anyone, ormit allow the booklet. contained in read what was reached
I concur the result not reflect the record does Unfortunately, part judg- of the majority reversing that the booklet given vacating why ment of did why he attorney, or prosecuting remanding the cause for reas- sentence and attorney for prosecuting not admonish before different sessment first in the him the booklet judgment offering also agree judge. stage reads: penalty 10. Said Canon 9. While basing stated he every person accord to should “A compan- testimony prosecutrix and her proceeding, or legally interested in who is ion, according record that he was he later stated into the lawyer, to be heard full robbery law, considering law, Alabama neither except as authorized alleged punish- private parte enhancement of conviction ex or other consider initiate nor plea pending im- concerning entered or communications pending proceeding.” “true.” *10 place. Apparently, emphasis, was nev- For Appeals Court of ex- er questioned what, about if any, express pressly opinion: stated the following its use booklet, he made of the or even whether “... it not only justice is essential that be any part read of the is booklet. There done, justice appear but also to be however, no dispute, hearsay infor- system justice done. Our criminal is al- mation contained in the is booklet most ready degree with too a high burdened of to unfavorable Motorcycle the Bandido public skepticism about its fairness. To Club, past members, and its and present avoid of further erosions confidence that including appellant. Subjectively, indeed, do, our all litigants courts treat booklet indicts for a past fairness, equal judges prosecutors organization. member It would themselves, alike keep must like Caesar’s defy human experience to state that after wife, above in which their suspicion fairness receiving the merely booklet the trial judge integrity appear compro- could be to placed and left on his desk. totally beliefs, mised.” I subscribe to those The Court of Appeals in its opinion did and I further believe that those beliefs not any particular use one reason for hold- caused the members the Court of Ap- ing that this cause should be remanded for peals ultimately make the unanimous a new hearing before a differ- they decision did. instead, ent judge, but, gave several principle long" A established in our is reasons its ultimate decision to remand case, that unless such is relevant to the this cause for a punishment hearing new assessing punishment, trial courts do not before a (1) different trial judge: the book- punish persons convicted because of who let and the information contained therein be, their might associates or because de- are hearsay rank the appellant and his fendant be a might member of a certain counsel; (2) by ex receiving booklet organization, princi- which organization has parte the trial judge denied appellant his trial; ples and morals which are to the aver- alien public (3) contrary many law, age rules of citizen’s parte hearings principles Today, ex morals. were held the trial judge however, by with both sides. of the reversing Because decision above, all of the punishment hearing Appeals, denigrates this Court may tainted, have been mandating thus principle. new punishment hearing. Unquestionably, majority opinion majority, in reaching its conclusion long flects that its author searched that the Court of Appeals erred in its deci- objective hard to find facts that would have sion to remand the cause punish- new of Ap- sustained the decision the Court ment hearing before a different trial judge, However, peals. I find that the majority, appears, among things, other compare instead, searching have been for sub- should pre-sentence booklet to a investigation jective and latent collateral factors that report. However, the booklet’s contents do caused to enter the the Court might not even resemble what be included order it did because that what its decision
in the worst imagined presentence investi- upon. founded gation report. It a compilation of what The bottom line of decision appears to be but nothing hearsay informa- subjec- is that because of Court tion, which relates to appellant’s former this tive and latent collateral factors in associates, peers, organization and the may be appearance cause there previously which he had belonged. Joseph correctly done justice properly was not McCarthy proud would have been to have cause; in this that it was not done. To not document, witnessed such and he and his matter, question remove probably placed associates would have much the interest Appeals correctly, it, personally stock in had appellant ap- hear- justice, ordered a new peared before the at a hearings conducted judge. time so a different trial country’s past. distant in this to be held before ing figuratively This screams out that its OPINION record To majority’s decision is correct. hold- *11 DAVIS, Judge. W.C. erred, ing Appeals that the Court dis- majority affirming errs carrying sent. The was convicted of Appellant point. on this the Court of assessed handgun. jury confinement, probated. year’s
one now contends the court erred of necessi- to submit defense refusing jury. ty by the for consideration that she had been Appellant had testified by the offense two weeks before raped if she who her with death man threatened rape, that she seen reported the ARMSTRONG, Appellant, Louise Marie and week the offense one before rapist with the aid of police in to the turned him home, that the she at her weapon kept Texas, Appellee. STATE bail, subsequently in- rapist made No. 63110. mother, timidated Texas, Court of Criminal the ra- lodgings her to avoid moved from 1. offense, Panel No. that, she pist, day on the believed rapist fear of the great was in July immediately weapon carrying harm to her necessary imminent to avoid person. Code,
V.T.C.A., provides: 9.22 Penal § justified if: “Conduct believes the (1) reasonably actor necessary to immediately conduct harm; avoid imminent urgency (2) desirability outweigh, ac- clearly avoiding the harm of rea- ordinary standards cording pre- sonableness, sought to be the harm con- prescribing vented duct; and to exclude purpose (3) legislative conduct for the claimed justification appear.” plainly does not otherwise V.T.C.A., Penal The State contends Dallas, Burns, Reed, D. Danny Roark M. carrying Code, prohibits § appellant. pur- legislative shows a handguns, plainly defense, and necessity pose to exclude Jeffrey Wade, B. Henry Atty. Dist. 552 S.W.2d Roy points Sorrells, Attys., Barry Asst. Dist. & Keck of its conten- support (Tex.Cr.App.1977) Dallas, Huttash, Atty. and Robert State’s necessity only held Roy tion. But Austin, Walker, Atty., Alfred Asst. State’s gener- by proof not be established could for the State. area”, “high-crime aor of crime alized fear the in- from distinguishable DAVIS, clearly and W.C. Before TOM G. DAVIS case. JJ. stant