Friday, July 30, 2010

Trial Judge Must Make an Informed Decision

"It is highly unlikely a judge would sentence an unremorseful, fourth-time DWI offender to probation, regardless of any available program or sanction," says Justice Hilbig in his dissenting opinion in Gutierrez v. State.

However, a majority of the 4th District Court of Appeals (San Antonio) reversed and remanded the case for a new sentencing hearing because the trial judge failed to order a presentence investigation report.  
Article 42.12, section 9, of the Texas Code Criminal Procedure requires the court to order such a report in most cases, but excepts misdemeanor offenses if the defendant does not request a report and the judge agrees, or 'if the judge finds there is sufficient information in the record to permit the meaningful exercise of sentencing discretion and the judge explains this finding on the record.'
The trial judge having failed to order a report or explain on the record why a report was unnecessary, the Court found harmful error.  The Court explained that:
because there was no presentence investigation report, the trial judge was not provided with required 'proposed client supervision plan.'  Without a 'proposed client supervision plan' outlining the programs and sanctions available through the community supervision and corrections department to [the defendant], the trial judge did not have before her all the information required by statute for her consideration before imposing sentence.
While, in my opinion, it is doubtful that Gutierrez' new sentencing will be any less than the original sentence of 4 months in jail and a $1,500 fine, he will get his chance.  I think 4 months and $1,500 is pretty light for a 4th DWI.