“PLEADING TO A PSI”

Houston Criminal Attorney John Floyd Discusses the Dangers of

Pleading Guilty to a Court Without a Plea Bargain as to Sentencing.

In December former Department of Public Safety crime lab technician Jesus

Hinojosa, Jr. pleaded guilty in a Houston, Harris County, Texas district court
to two counts of possession of more than 400 grams of cocaine with intent to
deliver, all of which was stolen from the agency’s Jersey Village crime lab.
He elected to be sentenced by a judge who, by law, ordered a “presentence
investigation” report. On February 8, 2008, after reviewing the PSI and
considering arguments from the defense and prosecution, the district court
sentenced Hinojosa to 45 years in prison – an extreme sentence harsh
enough to beg the question of whether he would have fared better before a
jury.

Texas law recognizes two kinds of guilty pleas: a plea to the judge assigned
to the case and a plea to a jury. Tex. Code Crim. Proc. § 1.15 (2007) allows
a judge to accept a guilty plea. The statute provides:

“No person can be convicted of a felony except upon the verdict of a jury
duly rendered and recorded, unless the defendant, upon entering a plea, has
in open court in person waived his right of trial by jury in writing in
accordance with Articles 1.13 and 1.14; provided, however, that it shall be
necessary for the state to introduce evidence into the record showing the
guilt of the defendant and said evidence shall be accepted by the court as the
basis for its judgment and in no event shall a person charged be convicted
upon his plea without sufficient evidence to support the same. The evidence
may be stipulated if the defendant in such case consents in writing, in open
court, to waive the appearance, confrontation, and cross-examination of
witnesses, and further consents either to an oral stipulation of the evidence
and testimony or to the introduction of testimony by affidavits, written
statements of witnesses, and any other documentary evidence in support of
the judgment of the court. Such waiver and consent must be approved by the
court in writing, and be filed in the file of the papers of the cause.”

Tex. Code Crim. Proc. § 26.14 (Vernon 1989) applies to guilty pleas to a
jury and it provides that: “Where a defendant in a case of felony persists in
pleading guilty . . . if the punishment is not absolutely fixed by law, a jury
shall be impaneled to assess the punishment and evidence may be heard to
enable them to decide thereupon, unless the defendant in accordance with
Articles 1.13 or 37.07 shall have waived his right to trial by jury.”

See also: Lovo v. State, 2007 Tex.App. LEXIS 9088 (Tex.App.-Houston [1st
Dist.] Nov. 15, 2007)

The Court of Criminal Appeals in Holland v. State held that “it is well
established in a felony case where a defendant has entered a guilty plea
before the jury, because there remains no issue of guilt to be determined, it is
proper for the trial judge in his charge to instruct the jury to return a verdict
a verdict of guilty, charge the jury … as to the punishment issues and then
instruct them to decide only those issues.” Id., 761 S.W.2d 307, 313
(Tex.Crim.App. 1988). The court that this “combination instructed verdict
and charge on punishment” is not a structural error. Id. Furthermore, the
courts have held that after a guilty plea, the trial is “unitary” and merges
straight into the punishment phase. See: Houston v. State, 201 S.W.3d 212,
221 (Tex.App.-Houston [14th Dist.] 2006, no pet.). See also: Carroll v. State,
975 S.W.2d 630, 632 (Tex.Crim.App. 1998).

These restrictions on guilty pleas to a jury notwithstanding, most responsible

attorneys will opt either for a jury trial or a guilty plea to a jury over what
commonly known as “pleading to the PSI.” Tex. Code Crim.Proc. § 42.12(9)
(a) (Vernon Supp. 2005-05) applies to “Presentence Investigations.” This
statute provides that “before imposition of sentence by a judge in a felony
case, the judge shall direct a supervision officer to report in writing on the
circumstances of the offense charged, the amount of restitution necessary to
compensate a victim, the criminal and social history of the defendant, and
any other information relating to the defendant or the offense requested by
the judge.” See: Carr v. State, 2005 Tex.App. LEXIS 8229, at p. 4
(Tex.App.-Tyler Oct. 5, 2005). See also: Tex. Code Crim. Proc. Ann. §
37.07(3)(d) [allows the court to consider a PSI at the sentencing phase of a
trial].

The Court of Criminal Appeals has held that the PSI statute is broadly
worded and allows the inclusion of “any information” relating to the
defendant or the offense. See: Fryer v. State, 68 S.W.3d 628, 629
(Tex.Crim.App. 2002). This frequently allows highly prejudicial inaccurate,
false, or misrepresented information to influence a judge’s sentencing
considerations. As the court in Carr pointed out: “Information contained in
the PSI is not considered an uncontroverted truth. The defendant may, with
the court's approval, introduce testimony or other information alleging a
factual inaccuracy in the report. A defendant bears the burden of proving
that the information contained in a presentence investigation report was
materially inaccurate and that the judge relied on inaccurate information.
Further, a PSI may include hearsay information.” Id., LEXIS at p. 4-5. See
also: Garcia v. State, 930 S.W.2d 621, 624 (Tex.App.-Tyler 1996, no pet.)
Id., at 4-5.

In Carr the defendant pleaded guilty to burglary of a habitation with intent to

commit an assault against the victim. He allowed the judge to assess the
punishment. The court ordered a PSI which contained a letter written by the
victim’s mother and signed by the victim. The letter was addressed to the
trial judge, and even though the letter did not meet the statutory
requirements of a victim’s impact statement [Tex. Code Crim. Proc. Ann. §§
56.01 & 03 (Vernon Supp. 2004-05)], the judge nonetheless made the letter
part of his sentencing consideration.

“In the letter, Kathaleen described some of the circumstances of the offense
charged and painted a troublesome picture of Appellant's character. This is
exactly the sort of information a trial judge should be apprised of when
assessing a defendant's sentence. Because the information included in the
letter falls within the scope of article 42.12, section 9, the PSI could
appropriately contain the letter. Accordingly, the trial court correctly
considered the letter to determine the appropriate sentence. Id., at LEXIS p.
5 [Internal citations omitted].

When a criminal defendant waives a jury, the trial judge has virtually
unfettered discretion to assess punishment with the range permitted by law,
including the maximum, – and that sentence “will not be disturbed on
appeal absent a showing of abuse of discretion and harm.” See: Jackson v.
State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984). This follows “the
general rule that as long as a sentence is within the proper range of
punishment it will not be disturbed on appeal. Id. See also: Flowers v. State,
2007 Tex.App. LEXIS 301 (Tex.App.-Waco Jan. 17, 2007).

Some defense attorneys argue, and it is the writer’s opinion, that an attorney
should not recommend that his/her client plead guilty without a plea bargain
affecting punishment. There are two such types of plea bargains: (1)
sentencing bargaining and (2) charge bargaining. See: Carender v. State, 155
S.W.3d 929, 930 (Tex.App.-Dallas 2005, no pet.). Sentence bargaining may
be for binding or non-binding recommendations to the court on sentences,
including a recommended “cap” on sentences and a recommendation for
deferred adjudication community supervision. Id., at 931. Charge bargaining
involves questions of whether the defendant will plead guilty to the offense
that has been alleged or a lesser or related offense and whether the
prosecutor will dismiss or refrain from bringing other charges. Id. Both
sentence bargaining and charge bargaining affect punishment. Id. See also:
Houston v. State, supra, 201 S.W.3d at 2l5, HN1.

Straight, unconditional “pleading to a PSI” is most often not an effective

defense strategy. It’s a historical byproduct of a defendant “throwing
himself at the mercy of the court,” and mercy is not a judicial commodity
often dispensed by most Texas Courts, especially those in Harris County.
Basically it sets a defendant up for a sentence that could be harsh and
outside what is reasonable for the particular defendant and the facts of the
case. Thus, absent an extremely sympathetic defendant and a case with
specific factors that demand leniency, pleading without a plea bargain to the
court, subject to a PSI, seems to approach mal-practice. This is especially so
in Houston, Harris County, Texas, where judges often run on and are elected
upon a tough on crime platform. If a defendant is looking for moderation
and compassion, looking to a jury is most often the best course.