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Click here for the full text of this decision FACTS:Authorities indicted Calvin Joseph Smith for the capital murder of a child younger than 6 years of age, alleging that he killed his 5-month-old daughter. Smith pleaded guilty on April 29, 2004. The trial court granted the state’s motion to reduce the charge from a capital offense. In support of the plea, the prosecutor offered a written stipulation of evidence and waiver of rights that Smith signed. In that stipulation, Smith admitted that on Nov. 20, 2000, he had “recklessly cause[d] serious bodily injury to Kiana Smith . . . by striking her in the abdomen.” This was the only information received by the trial court when it accepted Smith’s guilty plea. The trial court ordered a presentence investigation (PSI), specifically requesting that the PSI contain “whatever statement [Smith] made, whatever findings we have from medical doctors and things of that nature.” A punishment hearing commenced on Sept. 8, 2004. The only evidence offered by the state was the PSI. Smith objected that the PSI contained references to injuries that Kiana sustained before the abdominal injury that killed her and that there was no proof beyond a reasonable doubt that Smith inflicted those injuries. The trial court took this objection under advisement, declined to admit the PSI into evidence at the time and proceeded to hear Smith’s witnesses. The last witness that Smith called was Sheila Hugo, the community supervision officer who prepared the PSI. She testified that Smith had no criminal history (thus establishing his eligibility for community supervision) and no history of drug or alcohol abuse. On cross-examination, Hugo agreed that, despite these factors favoring Smith, she recommended in the PSI that Smith serve “pen time.” After Hugo testified, Smith reiterated his objection to the part of the PSI describing the older injuries, arguing that “those are extraneous and the Court to even consider them in punishing has to believe beyond a reasonable doubt that they were done by [the appellant] and there is no evidence whatsoever before the Court on that.” The trial court agreed “that the broken ribs to the child and . . . the bruises that were several days old, there is absolutely no evidence here that would support a finding that [Smith] had anything to do with that.” The punishment hearing was then continued so that the parties could research another unrelated legal issue. The PSI was never formally introduced into evidence, but it was included in the appellate record. On Sept. 17, 2004, the hearing reconvened. After hearing argument from the parties, the trial court stated: “I can only conclude from what I have seen that this child was brutally murdered, brutally tortured. . . . I can only conclude that [Smith] not only knew about it � he has admitted to striking the girl, but the injuries and damages that I see in the records don’t � they don’t come about by one blow. They don’t come about by one striking. And they didn’t all happen on November 19th when . . . the baby was taken to the hospital.” With this, the trial judge announced that he intended to assess punishment at 20 years of incarceration, the maximum available for a second degree felony. On Oct. 1, 2004, the trial court formally assessed the maximum punishment of a 20-year sentence and a $10,000 fine. The 14th Court of Appeals began with the assumption that all extraneous offenses must be proven beyond a reasonable doubt before a trial court may take them into account in assessing punishment. The 14th Court found that the trial court had improperly taken into account in assessing punishment allegations that Smith committed the extraneous injuries. A majority of the 14th Court held that insufficient evidence supported the conclusion, beyond a reasonable doubt, that Smith actually caused any of the extraneous injuries. The majority also concluded that the circumstantial evidence failed to support the inference, to a level of confidence beyond a reasonable doubt, that Smith was even aware that the injuries were taking place, such that he could be found criminally responsible for them. The state argued that a PSI need not establish beyond a reasonable doubt that Smith was responsible for extraneous misconduct before a trial court is authorized to consider that misconduct in assessing punishment under Texas Code of Criminal Procedure Art. 37.07, �3(d). HOLDING:The CCA affirmed the 14th Court’s opinion reversing the judgment and remanding the cause to the trial court for reassessment of punishment but ordered remand of the case for different reasons than the 14th Court. In 1993, the Legislature amended Art. 37.07, �3(a)(1). The Legislature expressly provided that a trial court may permit during the punishment phase the introduction of “any other evidence of an extraneous crime or bad act[,]” regardless of whether it has resulted in a criminal conviction. But the extraneous offense must be shown by the proponent of the evidence “ beyond a reasonable doubt . . . to have been committed by the defendant,” or that “he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.” Article 42.12, �9(a) defines what a PSI may contain, including, inter alia, “any other information relating to the defendant or the offense requested by the judge.” In Smith’s case, the trial court expressly asked that the community supervision officer include information from the victim’s medical records, which may reasonably be regarded as “information relating to . . . the offense.” It was from these records that Hugo gleaned the information she included in the PSI about the extraneous injuries the victim suffered. In view of Art. 37.07, �3(a)(1)’s conditional limitation upon the admission of extraneous misconduct evidence, the CCA posed the question as such: Should the trial court have satisfied itself that Smith committed that extraneous misconduct alleged in the PSI beyond a reasonable doubt before considering the PSI, as it was otherwise authorized to do under Art. 37.07, �3(d), in assessing what punishment to assess? Answering the question after conducting statutory interpretation, the CCA held that �3(a)(1) of Art. 37.07 did not prohibit a trial court, as a sentencing entity, from considering extraneous misconduct evidence in assessing punishment “just because the extraneous misconduct has not been shown to have been committed by the defendant beyond a reasonable doubt, if that extraneous misconduct is contained in a PSI.” In reassessing punishment on remand, the CCA stated that “the trial court is free to consider any reasonably available inference deriving from the PSI that the appellant knew about and failed to respond to Kiana’s extraneous injuries, regardless of whether the PSI establishes his knowledge to a level of confidence beyond a reasonable doubt. But the trial court may not consider the appellant to have been criminally responsible for directly causing those extraneous injuries based upon what is currently in the PSI.” OPINION:Price, J., delivered the opinion of the court in which Meyers, Womack, Keasler, Hervey, Holcomb and Cochran, JJ., joined. DISSENTS:Keller, P.J., filed a dissenting opinion. “I agree that a trial court may consider extraneous offenses contained in a PSI even if the evidence does not establish beyond a reasonable doubt that the defendant committed the offenses. I also agree that the record must contain some basis for believing that the defendant committed the extraneous offenses. However, I disagree with the Court’s conclusion that the record in this case contains no basis for concluding that appellant inflicted the extraneous injuries upon his child.” Johnson, J., also filed a dissenting opinion. “Allowing the trial court to consider the kind of evidence at issue here just because it is offered through a side door constitutes an end run around our established rules on admissibility and should not be permitted.”

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