### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00040-CR

NO. 03-03-00041-CR

Alex Isaiah, IV, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NOS. 53,693 & 53,694, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant Alex Isaiah, IV pleaded guilty, without benefit of a plea bargain, to charges

of aggravated robbery and felony e scape. See Tex. Pen. Code Ann. §§ 29.03(a)(2), 38.06 (West

2003). At the punishment phase, the trial court considered a pre-sentence investigation report

(“PSI”) that listed restitutio n owed by appellant for other robberies for which he had not been

indicted. Appellant received a sentence of ten years’ imprisonment for the felony escape and a

sentence of thirty-five years’ imprisonment for the aggravated robbery. On appeal, appellant

conte nds that the trial court erred by improperly considering the unindicted offenses without

adequate proof that they occurred.

The punishment phase of appellant’s trial was conducted based on appellant’s PSI.

See Tex. Code Crim. Proc. Ann. arts. 37.07, § 3(d) ; 42.12, § 9 (West Supp. 2003). Article 37.072

allows the court to consider extraneous felony offenses and misdemea n ors punishable by

confinement in jail, so long as they are supported by evidence beyond a reasonable doubt, regardless

of whether a defendant has previously been charged with or convicted of the crime or act. S ee id.

§ 3(a)(1)(A), (B). On defendant’s request, the State must provide notice before introducing such

evidence. I

d. § 3(g). Thus, when a trial court assesses punishment, it may determine that an

extraneous offense is relevant to punishment and admit such evidence, but the trial court may only

consider t he extraneous offense in assessing punishment if it finds that the offense was proven

beyond a reasonable doubt. S ee Williams v. State, 958 S.W.2d 844, 845 (Tex. App.—Houston [14th

Dist.] 1997, pet. ref’d) (construing Mitchell v. State

, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996)).

In t his case, the PSI included amounts of restitution owed by appellant for other

incidents for which no indictment had yet issued. It also detailed the results of psychological profiles

and substance abuse risks. Appellant’s counsel specifically requested that the trial court not consider

the restitution amounts on uncharged offenses in making its decision. The State responded that it

had not yet determined whether it would seek an indictment for the other incidents, but indicated that

it did not object to the trial court excluding the restitution from consideration. Appellant’s counsel

argued for leniency based on appellant’s age, lack of prior criminal history, and acknowledgment of

his guilt, requesting eith er probation or a minimal sentence. The State responded by pointing out

various other facts contained in the PSI: appellant had juvenile convictions on his record, had

apparent ly failed to comply with court-ordered treatment plans in the past, and had bad results on

his psychological assessments. The State requested a sentence of fifty years.3 The trial court assessed a punishment of ten years for the escape and thirty-five years

for the robber y

, the sentences to run concurrently. In making this determination, the trial court

stated, “So I’m not considering any of the other restitutions since those cases are still pending.” The

trial court continued, “Now, I don’t know if there is going to be any resolution of those cases but,

nevertheless, I’m ordering restitution for this one case whatever that may be . . . .”

There is no indication in the record that the trial court considered the extraneous

offenses or bad acts. Indeed, the trial court specifically stated that it would disregard the other

restitution amounts. The PSI indicated that appellant had admitted drug use, alcohol use, and one

violent robbery. While appellant’s counsel requested probation, the State requested fifty years’

imprisonment. The trial court’s sentence of thirty-five years was well within the range of

punishment. We cannot say that the trial court erred by entering a sentence between the punishments

requested by the State and appellant’s counsel. Appellant’s point of error is overruled. The trial

court’s judgment is affirmed.

__________________________________________

Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Patterson

Affirmed

Filed: August 14, 2003

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