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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   Cochran, J., filed a concurring opinion.

OPINION

I join the majority opinion. I add these comments only to suggest that the defendant at a motion to adjudicate or motion to revoke probation hearing normally does not need a presentence investigation (PSI) report. The probation officer will almost always be a testifying witness in the courtroom. ⁽¹⁾ All of the topics that might usefully be included in a written PSI may be addressed by the probation officer on the witness stand. Additional evidence may be offered by the live testimony of defense witnesses or the defendant.

Article 42.12, section 9, of the Texas Code of Criminal Procedure sets out the topics that should be addressed in a written PSI report:

• the circumstances of the underlying offense;
• the amount of restitution;
• the criminal and social history of the defendant;
• any other information relating to the defendant or the offense requested by the judge;

• a description of community supervision programs and sanctions available to the defendant.

These topics may be fully addressed by the probation officer and other witnesses who are all subject to cross-examination and appropriate inquiry by the trial court during a motion to adjudicate hearing.

A defendant is entitled to present mitigating evidence during the hearing on the motion to adjudicate. ⁽²⁾ If a defendant wishes to present any evidence that would normally be included in a PSI report, this is the time and place to do so.

In this case, appellant expressly waived his statutory right to a written PSI report during the original plea hearing. He did not, however, thereby waive his right to present mitigating evidence, including the type of information normally included in a PSI report, during the motion to adjudicate hearing. But appellant does not argue or demonstrate that the trial court prevented him from offering any such testimony at the hearing. With these comments I join the majority opinion.

Cochran, J.

Filed: June 29, 2005

Publish

1. The defendant may always issue a subpoena to ensure that the probation officer is present with his file and prepared to testify to the defendant's probation record and suitability for community-based programs.

2.

See Duhart v. State, 668 S.W.2d 384, 387 (Tex. Crim. App. 1984) ("Fairness would dictate that a defendant be accorded an opportunity to offer appropriate evidence in mitigation of punishment after the revocation of 'probation' and the adjudication of guilt and before the assessment of punishment if such evidence has not already been elicited during the proceedings, particularly if the defendant requests the opportunity"); see also Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (per curiam) (holding that "when a trial court finds that an accused has committed a violation as alleged by the State and adjudicates a previously deferred finding of guilt, the court must then conduct a second phase to determine punishment"; under art. 42.12, § 5(b), "the defendant is entitled to a punishment hearing after the adjudication of guilt, and the trial judge must allow the accused the opportunity to present evidence") (emphasis in original); but see Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex. Crim. App. 1999) (stating that Issa does not require a separate sentencing hearing after a defendant's guilt has been adjudicated if the defendant was provided an opportunity during the adjudication hearing to present mitigating evidence).