certainly the judge has discretion in sentencing a defendant and the judge has that discretion within the basic range of twenty to sixty years first degree murder the statute says that on top of that sentence shall be added this firearm this exceedingly broad range of twenty five years to natural life so this and hence me can far exceed the base sentence itself which is just a maximum six year sentence isn't that what the having done so it's incumbent on the legislature to the biker better word to not be face to provide the earth factors to guide the judge's discretion so that the judge and the defendant  conviction and there are all sorts of factors that trial judges have to consider and that you know the defendant can argue in this judge here at this court review to determine whether the judge abused or lawfully exercised d for which the legislature has given us no guidelines as to how to apply that to a particular defendant both the judge has guidelines and factors that he or she takes into in the first place was that the trial judge treated this is two separate counts two separate charges if you will and this court made it very clear that this is one murder one offense and so it would be improper to take those aggravating factors i didn't elevate the sentence within the but having done so they can't leave it to the judges you know to use you know their own perception of who knows what to make that well i think i think they can simply leave that to the judges to use their aggravated actors and then you come up with a sentence and i'm trying to pin you down on what is different about this one what is the crux of your argument see if we if we agree with you we have to write something you know we've got to write something to say this is why we agree with them what is that what is the crux of your argument i'm just not getting it i think part of the problem is this goes back to you again that's of the big news of the statute you have a statute that says you know fifteen years for being armed with a firearm twenty years from discharging and that if it possibly caused all of a sudden it goes from those you know sort of single numbers that are at it to a range from twenty five to life and it's up to the judge to decide the statute itself isn't guy the judge in any way and granted judges are large here is to consider many factors but the statute doesn't explain what those factors how would you like to see the statute written which you have or i mean are you suggesting it should have side for certain injury it's twenty five to forty five for what what do you see that statute looking like that  times into the back of a car knowing i mean the reason that he was firing the gun was to hit somebody we can assume that and he went up to the car and fired the gun in the jets pointed that out and she also talked about the fact that the and certainly the judge are going to fight those aggravating factors and those are certainly proper within the context of determining the basis he's a twenty to sixty years which is already a very severe sentence and the judge gave a severe sentence within that range of fifty years quite close to the maximum and then when it came to the separate consideration of the fire and the judge gave a thirty year and that's meant for reasons that are entirely unclear that illustrate why the statute is so constitutionally problematic in order to overcome vagueness in the case law says that you have to have you know sufficient criteria to know to not allow a trier of fact to base decisions based on his or her own private conception that's what you have here when the judge having already considered all those heavy factors making that fifty year sentence determination then comes to the fire and handsome and it's a number greater than twenty five for no reason  to be a right in number and here you're relying on this this range in the statute for the in here's one of the case issues given us on your second issue which do you think is the most relevant to our analysis and why you think it requires us to find this particular hymns from system to be unconstitutional i'm not so sure this is this far as i understand a case of first impression i don't think there's a published decision addressing this biggest argument  another case i hear the judge is left to his or her private conceptions deciding what if anything over the twenty five to give to the defendant but in making that decision  the case process says that we are to look at the legislative object and so i mean the legislative of jacked up as fairly clear and has been articulated in sharp sentencing in terms of you know we have a twenty to sixty base range we have certain factors that elevated to an extended term range sixty to one hundred we have certain factors that make it a net and for a natural life se come up with any factors other than the so called sliding scale of you know the level of harm but that doesn't really apply here for the first degree murder in texas there's automatically going to be a victims that the twenty five to life provision that which was thirty years which wasn't posed here does not present a vagueness problem if you look at the tast for determining whether a statute is  it states that the prohibitions must be definite so there's fair warning as to the conduct that's permitted and that there's sufficient standards so that the application is not dependent merely on the private conceptions so clearly the vagueness standard itself except the proposition that there is going to be some exercise of discretion by the person who's applying the statute in question specifically in this case it simply reflects the longstanding practice of allowing a court why discretion in fashioning a sutton's that's always been accepted because it's recognized that a court is in the best position to impose a sentence and it also reflects that sentences are into the individual eyes they are based on the facts of the case and other factors which the court in this case considered and imposing it sentencing the defendant fifty years in the first place and now those same factors have been applied to the enhanced from that what about that but i would reply to that in two ways number one  case flies very clear that it is presumed that a court in fashioning a sentence properly applied the factors in aggravation and medication so we can assume here that this court did the same that he considered the factors an aggravation he considered the factors in mitigation any properly applied as to the double enhancement problem i would jurek this court to people versus shark in that case there was an argument made regarding double enhancement  court said to that was where the legislature is made clear that there is an an intention to enhance the penalty for a crime even in a way that would constitute double enhanced meant this court will not overrule the legislature and it found that even if there was a double enhancement in that case that it was permissible and i would say the same is true here it's our position that in considering the sentence to be imposed under the twenty five to life range that the trial court is free to consider the same aggravating factors there's nothing within the twenty five to life perfect statute which would which indicates that that's not to be done there's nothing in the aggravating factors provision that indicates it's not to be done and it clearly states that it those are the factors to be considered and extending the sentence now over there to kind of get back to the question that us and that you asked there was really nothing else that can be considered other than the same factors that are listed in that in the aggravating factor section and i think turning back again to people versus shart in that case there was a long discussion about the fifteen twenty twenty five sentencing scheme in general and one of the issues that was raised in that case was a vagueness challenge to the same statute the twenty five to life granted it was on different grounds but part of the discussion that came up with in that case was that the reason that those the that sentencing scheme was constitutional was because it considered the degree of harm that was caused by the firearm and the use of the firearm in the commission of the crime  certainly those are the same kind of things that this court would be considering in imposing the sentence under twenty five to life and while perhaps those factors are not specifically set out in the statute as the more pointed out this is what this the trial court does every day it fashions appropriate sentences based on appropriate factors and this court nor our supreme court has ever felt it necessary to specifically lay out for each and every offense what type of of factors need to be considered in considering you know for example within a class for range what you need to look at like in a class  you need to look at and it it certainly ranges quite a ride don't you think you it would be at least wise for the legislature to let it lay out reasons to go one hundred years two hundred years or n i as opposed to twenty well it it is a very wide range but i think that it reflects the fact that there are a number of things that are contained within that statute this is personal discharge of a firearm which causes great bodily harm permanent disfigurement or dad so certainly there needs to be a wide range you know as a whole for someone who was murdered during the course of the event as opposed to someone who was shot in the arm and certainly the people's position is that the legislature's intent was to have the wide range because of the wide disparity of things contained within the statute i recognize as you pointed out that in this case that that did not seem to be the consideration of the court as it imposed only a five year over the twenty five but i believe that that is why there is such a wide range and the plain language of the provision itself provides for that kind of guidance to the court so your argument is that the provision the statutory provision have to guidance when talks about  include shop in the arm as you use it there is someone who was killed that enhanced would be less is that what you're arguing i think opposition is is to fall number one that there isn't a need for more specific criteria and number two that if this court is looking for criteria that there is a sort of i hate to use the term again but sliding scale set forth within the provision itself that and i understand that certainly it's not reflected in this case but again i would point to the fact that the vagueness standard itself would not preclude the would not preclude the fact that a statute allows for discretion by the court of the key word in that in that vagueness standard is merely it can the standards cannot rely merely on the applicant's private conception so certainly the fact that private conception can be taken into consideration reflects the fact that a chord is allowed some discretion in imposing the sentence if there's no further  thank you thank you would be making this argument what the court said is that as compared to the twenty and twenty five year life twenty five to life and hence meant there is no double enhancement because a person convicted of murder will automatically be subject for the twenty so they decided that as compared to the twenty and twenty five there was a double any chance of an issue so they did not address sort of the double enhancement argument i'm making here with respect to the statutory third you know double counting the here we have one offense of first degree murder where the judge has to first fashion a base and it's a twenty to sixty years and has to do so based on appropriate factors as this court  who says what's appropriate well you look to the statute which gives you you know twenty some odd statutory aggravating factors to consider having reached that sentence of you know in this case fifty years there shall be at another court recognized that when every man did first sentencing on a single counts as one offense of first degree murder it would be highly appropriate that certainly the legislature did not intend for you to take for a judge to take all of those aggravating the facts are whatever the facts are that that on which the defendant is going to be convicted for the underlying murder so there's not going to be any separate set of facts for you to which the court is going to be able to look really there's certainly a sense in hearing in the beginning evidence of aggravation mitigation yes and i'm don't understand your argument that the court in this case did not take those factors into consideration i don't think we don't know any indication of when i think the problem is that we don't know that's why it's unconstitutionally bay we don't know what factors the judge considered and we don't know how to review that because the judge here number of thirteen years are you suggesting now we have opportunity to tell the legislature how to rewrite this statute and i know you said you would presume to do that but just to me for the moment what kind of factors would you be looking at but you know what it really put in your comment talked about the think the legislature should put in there that would satisfy you that there are some guidelines that the court can rely on those factors that are in the statute that great bodily harm to state your mentor that are the facts that trigger thing to give the judges and us some idea as to what should be considered anything that stands i think most defendants get the twenty five year add on it just as a matter of course so it seems