Griffith, Darrell ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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No. PD-1121-04

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DARRELL GRIFFITH, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

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Holcomb, J., filed a dissenting opinion.

I respectfully dissent. I would hold that the trial court erred in not ordering preparation of a presentence investigation report (PSI), that appellant's request for a PSI preserved the trial court's error for appellate review, and that this case should be remanded to the court of appeals for a harm analysis.

The relevant facts are as follows. On June 6, 2001, a Harris County grand jury presented an indictment that charged appellant with unlawfully carrying a weapon on premises where alcoholic beverages were sold. See Tex. Pen. Code § 46.02. The offense alleged was a third-degree felony. On August 17, 2001, appellant pled guilty to the offense alleged, and on that same day the trial court deferred an adjudication of guilt and placed appellant on community supervision for three years. See Tex. Code Crim. Proc. art. 42.12, § 5(a). At the time appellant pled guilty, he purported, in writing, to "waive any right" that he might have to the preparation of a PSI. See Clerk's Record at 12.

On June 6, 2002, the State filed a motion to revoke appellant's community supervision and adjudicate his guilt of the primary offense. In its motion, the State alleged that appellant had violated the terms of his community supervision by, among other things, unlawfully possessing a controlled substance. On January 27, 2003, the trial court heard evidence on the State's motion and found that appellant had, in fact, violated the terms of his community supervision. Immediately thereafter, appellant requested the preparation of a PSI, but the trial court denied the request without providing a clear explanation for the denial. ⁽¹⁾ Immediately after that, the trial court adjudicated appellant guilty of the primary offense and sentenced him to imprisonment for four years.

On direct appeal, appellant, citing Article 42.12, § 9, of the Texas Code of Criminal Procedure, argued that the trial court erred in denying his request for a PSI:

The Texas Code of Criminal Procedure clearly requires that before the imposition of sentence in a felony case, a PSI report must be prepared and submitted to the trial judge for consideration. The only time such a report is not required to be prepared [in a felony case] is when it is not requested by the defendant and either punishment is to be assessed by a jury, or in a capital murder case, or when the only available punishment is imprisonment, or where there is a plea bargain for imprisonment which the judge intends to follow. Significantly, while a defendant may statutorily waive the preparation of a PSI report in a misdemeanor case, no such waiver is provided in a felony case.

(Emphasis in original; citations omitted.)

The Fourteenth Court of Appeals rejected appellant's argument, holding that, in accordance with Article 1.14 of the Texas Code of Criminal Procedure, he "waived his right" to a PSI at the August 17, 2001, plea proceeding and that that waiver "also applie[d] to the [January 27, 2003] punishment hearing." Griffith v. State, 135 S.W.3d 337, 338 (Tex.App.-Houston [14^th Dist.] 2004). This Court now affirms the court of appeals' holding and reasoning.

I agree with appellant and conclude that the trial court erred in denying the request for a PSI that he made at the January 27, 2003, hearing. Appellant never "waived" his "right" to a PSI. By its plain terms, Article 42.12, § 9, does not create a "right" that can be "waived" by a criminal defendant. Rather, the article is a directive from the Legislature to trial courts that PSI's are mandatory in felony cases except in very limited circumstances, none of which apply to this case. Indeed, under the article, a defendant in a felony case can not even request that a PSI not be made, although a defendant in a misdemeanor case can request that a PSI not be made. See generally G. Dix & R. Dawson, Texas Practice: Criminal Practice and Procedure §§ 38.177 (2d ed. 2001). As we stated in Whitelaw v. State, 29 S.W.3d 129, 134, under Article 42.12, § 9, "a PSI is now mandatory in all criminal cases unless one of the statutory exceptions is satisfied, and for felony cases, no statutory exceptions apply if the defendant timely requests a PSI." Whether this is good public policy is not for us to decide; it is the law.

In my view, the Legislature could not have been clearer when it drafted Article 42.12, § 9. I think we have to follow the statute as written. Because the majority does not do so, I respectfully dissent.

FILED: JUNE 29, 2005

PUBLISH

1. The relevant portion of the hearing on the motion to adjudicate proceeded as follows:

Defense Counsel: We would request a PSI. The court does have discretion to grant one.

The State: State is opposed, Your Honor.

Trial Court: I think that's probably inappropriate with the number of matters we had and the fact that the earlier times [sic], so I would decline that request for a PSI at this time.