## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00012

- CR

JESUS ANTONIO

- HERNANDEZ , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 8th District Court Hopkins County, Texas Trial Court No. 2027808

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Burgess2 

### ME MORANDUM OPINION
Jesus Antonio

- Hernandez pled guilty to murder and, following a bench trial on punishment, was sentenced to sixty years’ imprisonment. On appeal, Anto nio

- Hernandez argues that the evidence was legally insufficient to support the punishment assessed and that the trial court erred in taking judicial notice of facts contained in the presentence investigation (PSI) report when it was not admitted into evide nce . We affi rm the trial court’s judgment because (1) Antonio

- Hernandez’s punishment was within the statutory range and no separate legal sufficiency review is required in this case and (2) the trial court could consider facts in the PSI report eve n thoug h it w as not admitt ed into evidence.
I. Antonio
- Hernandez’s Punishment Was Within the Statutory Range and No Separate Legal Sufficiency Review is Required in t his Case
A sentence “ within the proper range of punishment ” normally “ will not be distur bed on

a ppeal

. ” Jackson v. State , 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) ; see Harvey v. Sta te , 173 S.W.3d 841, 850 (Tex. App.

— Texarkana 2005 , no pet. ) ). Antonio

- Hernandez’s sixty

- yea r sentence is within the appropriate range for a first

- degree felon y. See T EX
. P E NAL C ODE A NN
. § 12.32. “[S] entencing is within the sound discretion of the trial court, and we review the sentence imposed by a trial court for an abuse of such discretion. ” Har vey , 173 S.W.3d at 850. Antonio

- Hernandez has neither argued nor expl a ined how the trial court, which assessed a punishment well within the statutory range, abused its discretion in assessing his sentence. “ A trial court will be found to have abused its discretion only if ther e is no evidence or factual basis for t he punis h ment impo sed. ” Id. Here, even if Antonio

- Hernandez’s brief could somehow be3

read to encompass the issue, the evidence that Antonio

- Hernandez committed murder, including his confession to the offense and the fact that the sentence is within the statutory range, l eads to the conclusion that the trial court did not abuse i t s discretion in assessing it. See id. Even so, i n his first point of error, Antonio

- Hernandez challenges the legal sufficiency of the ev idence supporting the punishment assesse d. Anton i o - Hernand ez cites to no authority to support the argument that courts should conduct a legal sufficiency review of evidence supporting an assessed sentence in the absence of an allegati on that increases or alters the applicable range of punishmen t. Indee d , Antonio

- Hernandez readily acknowledges that w e may determine that a rev iew for legal “ sufficien cy of punishment evidence is not a viable line of appellate inquiry .” This issue was recently addressed by our sis ter court in Montelongo v. State , and w e adopt its reasonin g . Montelo ngo v. State , No. 08

- 18

- 00093

- CR, 2020 WL 4034961, at *5 (Tex. App.

— El Paso July 17, 2020 , pet. ref’d) (not designated for publication)

. 1 In that case, the
El Paso Court of Ap peals explained: Underpinning legal

- sufficiency r ev iew is the princip l e that “no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof

— defined as evidence necessary to convince a trier of fact beyond a reasonable dou bt of the existence of every element of the offen se .” Jackso n v. Vir g inia , 443 U.S. 307, 316 (1979). While an appellate court always has the responsibility to confirm, when challenged, that the evidence at issue comp orts with the beyond

- a reasonable

- doub t standard during the guilt/innocence stage of a cr iminal pro ceeding, the same n eed not be said during the punishment phase. Except for enhancement allegations, which, like criminal elements, impose on the State a bey ond

- a - reasonable

- doubt standard of evi dentiary proof, see e.g. Wood v. State ,

1 “Although unpublished cases have no precedential value, we may take guidance from them ‘as an aid in developing reasoning that may be e mployed.’” Rhymes v. State , 536 S.W.3d 85, 99 n.9 (Tex. App.

— Texarkana 2017, pet. ref’d) (quoting Carrillo v. State , 98 S.W.3d 789, 794 (Tex. App.

— Amarillo 2003, pet. ref’d)).4

486 S.W.3 d 583, 589 ( Tex. Cri m . App. 201 6) (applying legal sufficiency review to evidence supporting “true” finding of enhancement paragraph), when it comes to assessing the appro priate punishment applicable to a par ticular defendant, “neither party carries the bur de n of provi ng what p unishment should be assessed within the statutorily prescribed range applicable to a given offense,” Jordan v. State , 256 S.W.3d 286, 291 (Tex. Crim. App. 2008). Indeed, we have found no case in which the Court of Criminal Appeals has ev er applied a legal

- sufficienc y review to a punishment proceeding that did not involve some form of statutory enhancement allegation which increased the punishment appli cable to a given offense. Rather, in the context of punishment assessment alone, the Co urt has ob served t h at when “c onsidering all of the evidence admitted during the guilt and punishment phases, the factfinder engages in a normative process that is uninh ibited by any required, specific fact determination to decide what particular punishme nt to assess within the range p rescribed by law.” Jordan , 256 S.W.3d at 292. In such a context, the fact finder ’ s discretion to impose any punishment within the prescri bed range is essentially “unfettered. ” Ex parte Chavez , 213 S.W.3d 320, 323 (Tex. Cri m. App. 2006 ). Id. As a resul t, because the State did not raise any allegation that would increase or alter the normal applicable range of punishment “ and the trial co urt assessed punishment within the
st atutory range, a review of the legal sufficiency o f the evide nce on wh i ch the tr ial court based its punishment assessment is simply not possible. ” Id. Consequently, we overrule Antonio

Hernandez’s first point of error.
II. The Trial Court Could Consider Unobjected
- to Facts in the PSI Report Even Though I t Was Not Admitted into E vidence
After Antonio

- Hernandez’s plea of guilt, the trial court ordered the preparation of a PSI report as required by Article 42A.252 of the Texas Code of Criminal Procedure

. At punishment , t he State asked the trial court to t ake judic ial notic e of its file, including the PSI report , without objection from Antonio

- Hernandez. During closing argument, Antonio

- Hernandez relied on5

information contained in the PSI report , including the lack of a significant criminal record and
st at ements ma de by Ant o nio

- Hernandez that he did n ot intend to kill the victim. At sentencing, the trial court made statements indicating that it considered evidence from the PSI report

. 2
Antonio

- Hernandez filed a motion for new trial on puni shment complain in g that th e trial c o urt erred in considering the facts contained in the PSI report . The trial court denied Antonio

Hernandez’s motion after noting , “ T he facts referenced by the defendant and cited by the Court were contained in the pre

- sentence i nvestiga ti on report as part o f the agreement of the parties.” On appe al, Antoni o - Hernandez argues that the trial court erred in considering the facts in the PSI report because they were not offered by the State or admitted into evidence. We disagree. Nothing re qu ir es the PSI repor t to be admitted into evidence before a trial court can consi der it , and we have previously stated that , because the PSI report often contains confidential information, “ the better practice is to not admit the PSI into evidence .” Bell v. State , 155 S.W. 3 d 635, 639 n.3 ( Tex. App.

— Texarkana 2005 , no pet. ) ; see T EX
. C ODE C RIM
. P ROC
. A N N
. art. 42A.256.

“ When the judge assesses the punishment, the judge may order a presentence report

. . . , and after considering the report, and after the he aring of the evi d e n ce . . . , the judge shall forthwith announce the j udge ’ s decision in open cou rt as to the punishment to be assessed. ”

2 Specifically, Antonio

- Hernandez complains that the following statement by th e trial court showed that it considered the truth of the facts s tated in the PSI report : That’s what I’m alw ays interested in, is the truth. And what I found fascinating in reviewing the discovery, which took me many, many hours, part of the discovery in t h is case involved 2 4 separa te disks of various videos from officers’ d ash cam videos, to body cam videos, t o interview room videos, and from the very beginning, when officers first arrived, that’s when it started, first arrived to investigate the scene of t he burned

- out vehi c le that had been reported by some citizens who hap pened to be riding around and found t he truck, discovered what appeared to be human remains in the truck and called it in.6

T EX
. C ODE C RIM
. P ROC
. A NN
. art. 37.07 , § 3(d) (Supp.)

. “ Because a PSI report is intended to acquaint the sentencin g trial judge with t h e defendant ’ s criminal history, and the defendant h as a full opportunity to ob

ject to the accuracy of the PSI report, a trial court may consider unobjected

to [facts] listed in the PSI report when ass essing an appropriate sentence. ” J ac kson v. Stat e , 4 7 4 S.W.3d 755, 757

– 58 (Tex. App.

— Houston [14th Dist.] 2014, pet. ref ’ d ). In fact , in an unpublished opinion, the Texas Court of Criminal Appeals concluded that a trial court could consider facts contained in a judicially noticed PSI repo rt for the pur pose o f finding enhancement allegations true based on prio r convictions. See Brewer v. State , No. 1270

- 03, 2004 WL 3093224, at *2

– 3 (Tex. Crim. App. May 19, 2004) (not designated for publication)

. This opinion is not precedent, and we do no t cite it as a utho r i t y, but the court ’ s reasoning is persuasive. See T E X
. R. A PP
. P. 77.3. The c o urt wrote: The purpose of compiling a PSI is to fully inform the trial court of the circumstances of the offense, the defendant ’ s background, education, prio r off ense s, and pro s p ects for rehabilitation, and the harm, if any, caus ed to the victim of a crime

. There would be little pu rpose in compiling this report if the trial judge cannot rely upon the information contained within it. Because the Texas Legisla tu re gave the defen d a nt an explicit statutory right and opportunity to object to the factual accura cy of its contents and to correct any mistakes or misstatements, it surely intended that the trial judge would rely upon unobjected

to facts contained within t hat PSI when asse s s ing an appropriate punishment.
Brewer , 2004 WL 30 93224, at *3 ( footnotes omit ted) (citations omitted) ; see Petrea v. State , No. 06

- 18

- 00075

- CR, 2018 WL 4472224, at *2 (Tex. App.

— Texarkana Sept. 19, 2018, no pet.) (mem. op. , not d esig n at ed for publicatio n ) (“[W]hen a PSI report is prepared, the trial cour t may take judicial notice o f unobjected

- to facts contained within the PSI report.”).7

In sum , because Ant onio

- Hernandez did not object to the accuracy of statements contained in the P SI r eport but instead r e lied on it in closing argument and because the repo rt is not required to be adm itted into evidence before it can be considered, we overrule Antonio

Hernande z’s last point of error.
III. Conclusion We affirm the trial court’s ju dgm e n t.

Ralph K . Burgess Justice Date Submitted: June 17, 20 21 Date Decided: July 29 , 2 021 Do Not Publish