Mason v. State

604 S.W.2d 83, 1979 Tex. Crim. App. LEXIS 1808

• Court: Court of Criminal Appeals of Texas
• Decided: May 2, 1979
• Docket: 60777, 60778
• Status: Published

Opinions

OPINION

DALLY, Judge.

The appeal in Cause No. 60,777 is from a conviction for the offense of murder; the appeal in Cause No. 60,778 is from a conviction for the offense of aggravated robbery. The punishment in each cause, enhanced by a prior felony conviction, is imprisonment for fifty-five years.

The appellant asserts that he should be granted a new trial because the State breached a plea bargain and because the trial judge, after finding the appellant guilty, recessed the proceedings until he could receive the probation officer’s presen-tence investigation report.

The appellant entered pleas of guilty to both offenses in the same proceeding. His claim that the State breached a plea bargain agreement is based upon the following colloquy:

“THE COURT: I must advise you then, under both the laws of this state and the laws of the United States, that plea agreements are recognized and they are allowed to be made in the Court, but it’s the duty of each of the attorneys, the attorneys for the Defendant and the State’s attorney, to fully disclose to the Judge at the beginning of the proceedings any plea bargain agreement that has been made and has been recommended to the Judge. So, I’ll ask you now to tell me for the record what you believe is to be recommended to the Court concerning punishment or are these matters being submitted to the Court without recommendation?

“MR. PRELS: Without recommendation.

“THE COURT: Mr. Mason, do you understand that if the Court hears your pleas of guilty and considers the matters without any recommendation being made, the Court will order a pre-sentence investigation to assist the Court in determining what a proper punishment will be?

“DEFENDANT: Yes, I do.

“THE COURT: Are you agreeable to proceed on that basis?

“DEFENDANT: Yes.

“THE COURT: Mr. Toomey, is this agreeable with the Defense that the matters will be submitted to the Court for a pre-sentence investigation?

“MR. TOOMEY: Yes, Your Honor.

“THE COURT: Mr. Freís, is it agreeable with the State?

“MR. FRELS: The State is agreeable to proceeding, yes, your Honor. However, the record must be clear that the State will take a very definite position on punishment at the time of the P. S. I.

“THE COURT: Is this the understanding between the State and the Defense?

“MR. TOOMEY: Yes, your Honor.

“THE COURT: Mr. Mason, do you understand that as well?

“DEFENDANT: Yes, I do.”

(Emphasis added.)

After the court had obtained the presentence investigation report, the State argued that the appellant “. . . ought to be sentenced for at least ninety-nine years or life.” This argument was made without objection and appellant did not request to withdraw his plea of guilty. In the circumstances of this case we find that there was no breach of a plea bargain agreement. Cf. Bass v. State, 576 S.W.2d 400 (Tex.Cr.App.1979).

The appellant’s complaint that the trial court improperly recessed the proceedings until he could receive the probation officer’s presentence investigation report is without merit. Although there is some division in thought as to the use of the pre-sentence investigation report, see Angelle v. State, 571 S.W.2d 301 (Tex.Cr.App.1975); Bean v. State, 563 S.W.2d 819 (Tex.Cr.App.1978); McKelvey v. State, 570 S.W.2d 95 (Tex.Cr.App.1978), it was not error for the trial court to recess the proceedings to obtain the presentence investigation report.

The judgments are affirmed.

Before the court en banc.