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Townes v. State

Court of Appeals of Texas, Fourteenth District

April 2, 2019


          On Appeal from the 209th District Court Harris County, Texas Trial Court Cause Nos. 1331227 & 1524616

          Justice Panel consists of Justices Christopher, Jewell, and Hassan.



         Appellant Antwain Townes III appeals two sentences imposed by the trial judge on the ground that the presentence investigation report was biased. Acknowledging he did not object to the presentence report in the trial court, appellant contends the lack of objection does not preclude our review because his asserted right to an unbiased presentence report is a "category-two" Marin[1] right, or, alternatively, his trial counsel was ineffective by failing to object. We conclude the record does not support the violation alleged even assuming preservation, and we affirm the trial court's judgments in both cause numbers.


         This appeal involves the sentences imposed for two separate offenses. The first was a Harris County grand jury indictment for felony robbery. Pursuant to a plea bargain with the State, appellant pleaded guilty to the lesser offense of theft from a person, and the trial court deferred adjudication and placed appellant on community supervision for three years. A few months before appellant's community supervision expired, the State moved to adjudicate appellant's guilt. The State alleged that appellant violated the terms and conditions of his community supervision by committing another criminal offense, among many other claimed violations.

         In a separate cause, the State indicted appellant for aggravated robbery with a deadly weapon, and appellant pleaded guilty. Because the parties had not agreed to a recommended sentence, the trial court deferred entering a finding of guilt for the aggravated robbery charge and recessed appellant's sentencing hearing pending completion of a presentence investigation report.[2] The report was prepared by the Harris County Community Supervision and Corrections Department. As required by statute in part, the report included the circumstances of the charged offense (including appellant's version), a victim impact statement, appellant's social and criminal history (including the prior theft offense), and a multi-factor risk assessment.[3] The report also attached several character reference letters supporting appellant. Overall, the report indicated that appellant scored in the moderate risk range for recidivism, based on a criminal attitude, poor judgment, negative peers, and a lack of motivation to address primary problems. The report recommended that appellant be placed in the Young Men About Change (YMAC)-Criminal Conduct Track, if appellant was to be placed on community supervision.

         Before the sentencing hearing began, the judge confirmed that appellant's counsel had received a copy of the report. Counsel stated he had no objections to the report, and the State offered it into evidence.

         The trial court adjudicated appellant guilty of the offense of theft from a person and sentenced appellant to two years' confinement in state jail. For the aggravated robbery charge to which appellant pleaded guilty, the court sentenced appellant to eight years' confinement in the institutional division of the Texas Department of Criminal Justice. The trial court ordered the two sentences to run concurrently.

         Appellant timely appealed the judgments in both cases.


         Appellant presents a single issue for our review, albeit one with multiple sub-parts. The crux of his complaint is that the presentence report was unfairly biased because the author used words possessing negative connotations when discussing appellant but maintained neutrality when discussing the complainant's report. According to appellant, just as he is entitled to neutrality from the tribunal, he is entitled to neutrality from the presentence report because the preparing officer is the court's "agent." Though appellant did not object to the report in the trial court, he contends no objection was required or, alternatively, his trial counsel was ineffective by failing to object.

         Presentence reports are prepared by community supervision and corrections departments, which serve the district courts and county courts at law handling criminal cases within a designated judicial district or combination of districts. See Tex. Code Crim. Proc. arts. 42A.001(4), 42A.252(a); Tex. Gov't Code §§ 76.002, 76.004. A presentence report is used anytime a sentence is to be determined by a judge. Stringer v. State, 309 S.W.3d 42, 45 (Tex. Crim. App. 2010). Except in situations inapplicable here, trial judges "shall direct a supervision officer to prepare a presentence report for the judge." Tex. Code Crim. Proc. art. 42A.252(a).[4] The report contains general punishment-phase evidence and assists the court in determining the sentence to assess. Stringer, 309 S.W.3d at 45; see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (presentence investigation and report may be utilized to assist trial judge in the exercise of discretion when an issue of the proper punishment is present). The report's purpose is to "provide a wide range of information to the trial court without an adversarial hearing," Stringer, 309 S.W.3d at 48, and to that end the report's contents are prescribed by statute. Tex. Code Crim. Proc. art. 42A.253. For example, a presentence report must be in writing and include the circumstances of the charged offense, the defendant's criminal and social history, a proposed supervision plan if the court grants community supervision, and any other information relating to the defendant or the offense as requested by the judge. Id.

         A presentence report may not be inspected by the judge nor may its contents be disclosed unless the defendant pleads guilty or nolo contendere or is convicted of the offense, or the defendant authorizes in writing the judge to inspect the report. Id. art. 42A.254. Unless waived, a defendant has the right to read the report at least forty-eight hours before sentencing. Id. art. 42A.255(a). If a defendant believes the report is biased or contains factual inaccuracies, the Legislature has provided statutory remedies, including a right to object, the right to comment on the presentence investigation, and (with the judge's ...

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