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Click here for the full text of this decision FACTS:Appellant was originally charged with capital murder for causing the death of his 5-month-old daughter by striking her in the abdomen. The decedent’s mother, Diretha Jones, was also charged with capital murder. The prosecutor subsequently dismissed the charge against Jones, apparently due to lack of evidence, and filed a motion to proceed against appellant on the lesser included offense of reckless injury to a child. Pursuant to an agreement with prosecutors, appellant pleaded guilty to this offense. In his Written Stipulations and Waivers, appellant stated that on or about Nov. 20, 2000, he recklessly caused serious bodily injury to his daughter by striking her in the abdomen. The trial court Ordered a Presentence Investigation Report (PSI). During the punishment phase, appellant presented numerous favorable character witnesses. He also called Sheila Hugo, author of the PSI, as a witness. After counsel concluded their questioning, the trial judge asked several questions. In response, Hugo stated that she had received medical records from the decedent’s pediatrician but that they did not contain any additional relevant information on the child’s condition. She further testified that she was not able to establish when appellant had possession of the child prior to the day she was taken to the hospital. Although the child’s mother usually went to work at noon, appellant was not necessarily the child’s caretaker while the mother was away. The maternal grandmother also cared for the child. Hugo did not interview the grandmother. Toward the end of his questioning, the judge stated: “This question is very important to me. Is there any record that you have looked at that would place this defendant in the possession of this child for a week at anytime during a week prior to November 19th?” Hugo responded “No, sir.” The judge said, “This is about the worst investigation I ever saw,” and “the evidence as to what really happened on that day is still rather murky. About all we have is the statement of the defendant.” He also expressed consternation that a file was lost. The trial court sentenced appellant to 20 years in prison and a $10,000 fine, the maximum sentence permitted for reckless injury to a child. HOLDING:Reversed and remanded. The trial judge spoke at length regarding the dearth of evidence establishing how the decedent’s various injuries occurred. At the conclusion of the punishment hearing, the judge clearly indicated that he was considering extraneous bad acts in assessing appellant’s punishment. The trial court did not have to accept appellant’s self-serving version of events as true (that he only performed CPR, that he did not know what happened to his daughter), but there is no other direct evidence regarding how the decedent’s injuries occurred. The medical reports are evidence that she was horribly mistreated over a period of time, but they are not evidence that appellant was the person who mistreated her over time or that he knew that it was occurring. The absence of evidence that someone else committed horrible acts against the decedent does not constitute evidence that appellant committed the extraneous acts. The court concludes that the trial court improperly considered extraneous offenses in assessing appellant’s punishment. The conclusion that the trial judge considered extraneous acts in assessing punishment is bolstered by the judge’s suggestion during the first day of the punishment hearing that the existence of older injuries could “[make] a big difference in punishment.” The court is unable to say with fair assurance that the trial court’s erroneous consideration of extraneous offenses did not influence the assessment of punishment or had only a slight effect. OPINION:Hedges, C.J.; before Hedges, C.J., Yates and Anderson, J.J. Yates, J., dissenting.

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