Webb v. State

OPINION COHEN, Justice. Appellant was found guilty of aggravated sexual assault, and the trial court assessed punishment at confinement for life. In point of error one, appellant contends that the Hon. A.D. Azios erred in assessing punishment, over objection, because he had not presided at the guilt-innocence phase of the trial. In point of error two, appellant claims that his election for the court to assess punishment was not knowingly and voluntarily made because he assumed that the judge who presided at the guilt-innocence stage would determine punishment. Appellant's first trial resulted in a mistrial due to a hung jury. His second trial ended in a mistrial when defense counsel withdrew before the jury was sworn. This appeal resulte from the third trial. Judge A.D. Azios presided at appellant’s first two trials, at which appellant elected to have the jury assess punishment. Judge Frank C. Price presided over appellant’s third trial, in which appellant again chose jury punishment. However, appellant amended that election and chose for the court to assess punishment. The jury was excused after it found appellant guilty, and the punishment hearing was set to a later date to secure a pre-sentence investigation report (“PSI"). Judge Azios then presided at the punishment hearing. Appellant objected that Judge Price should assess punishment because he had heard the evidence. The objection was overruled. During the punishment hearing, the State offered the evidence that Judge Azios had heard in the first trial and the PSI. Appellant presented testimony from a Harris County Jail sergeant and from two jail chaplains. The State argued for a sentence of 50 years. Appellant requested no particular figure, but pointed out his absence of prior convictions. It is not error for a judge to assess punishment without having presided at the trial, absent an abuse of discretion. Hogan v. State, 529 S.W.2d 515, 517 (Tex.Crim.App.1975); Ben-Schoter v. State, 634 S.W.2d 28, 30 (Tex.App.—Beaumont), rev’d on other grounds, 638 S.W.2d 902 (Tex.Crim.App.1982). In Ben-Schoter, the elected judge presided over the guilt-innocence stage, but an assigned judge heard several punishment witnesses. The elected judge then returned and assessed punishment, over the defendant’s objection. The court reasoned that there was no abuse of discretion or injury because the PSI had given the elected judge adequate factual knowledge and the defendant had not been denied an opportunity to supplement the record. In Jackson v. State, 680 S.W.2d 809 (Tex.Crim.App.1984), the judge who presided during the guilt-innocence stage died before the punishment hearing was held. The judge who assessed punishment used the PSI to assess eight years confinement. Neither party presented evidence at this hearing. The defendant objected that the sentencing judge had not reviewed the transcript of the evidence presented at the guilt-innocence stage. On appeal, the appellant complained on this basis and argued that the trial judge had abused his discretion by assessing punishment based solely on the PSI. The court agreed, noting that because no evidence was presented at the punishment hearing, the sole basis for the punishment must have been the PSI, which was incompetent evidence under then existing law. Id. at 814. The court reasoned: [224] However, in all of the cases dealing with review in this area there was at least some evidence or facts available to the court and upon which the court could have relied in assessing punishment. We can find no case sanctioning, over timely objection, a particular punishment decision in which there was no evidence of the offense, no information about the defendant, no punishment evidence, no plea bargain; in short, nothing at all upon which the punishment decision could have been based. We decline to sanction such procedure and hold that under the limited facts of this case the trial judge abused his discretion when, over proper objection, he determined the appellant’s punishment. Such determination was a violation of Art. 1.04, V.A.C. C.P., and Art. 1, Sec. 19 of the Texas Constitution constituting reversible error. Id. The present case differs from Jackson because Judge Azios had before him: 1) judicial knowledge of the evidence at the first trial that, in light of that jury’s inability to convict, may have been more favorable to appellant than the evidence at the third trial; 2) the PSI, which is competent evidence under present law; and 3) defense evidence at the punishment hearing. Moreover, appellant did not request that the statement of facts from the third trial be transcribed and reviewed by Judge Azios. Thus, as in Ben-Schoter, appellant was not denied the opportunity to bring that evidence forward at the punishment stage. Moreover, appellant did not object at trial that having Judge Azios preside rendered his jury waiver unknowing or involuntary, and neither party presented evidence on that issue. We agree with the dissenting opinion that the better practice would have been to have Judge Price preside, assuming that he was available. However, under present case law, Judge Azios did not abuse his discretion by presiding. Points of error one and two are overruled. The remainder of the opinion does not meet the standards for publication and therefore will not be published. Tex.R. App.P. 90. The judgment is affirmed.