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Gonzales v. State4/7/1999
he record contains a "pre-post sentence report" drawn up by a Jim Wells County probation officer. Included in this report is Gonzales's substance abuse history, including alcohol, as well as Ramos's recommendation for alcohol evaluation, treatment, and education. The report, however, was issued May 12, 1997, five days after the trial court's judgment ordering Gonzales to confinement was entered. There is nothing in the record to suggest that the defendant called the trial court's attention to the lack of the PSI report and alcohol evaluation before sentencing. Given these facts, it would appear that Gonzales waived his right to the use of the report and to complain of its non-existence on appeal. Appellant failed to preserve his complaint for review. Accordingly, we overrule appellant's fourth and fifth issues.
Double Jeopardy
In his sixth issue, Gonzales asserts that it was error for the trial court to reset the case for more evidence related to the seriousness of Cadena's injuries. Gonzales contends the trial court's reset constituted a second prosecution for the same offense. We disagree.
When a defendant enters a plea of guilty in a non-capital felony case, the defendant is not entitled to a bifurcated trial. Carroll v. State, 975 S.W.2d 630, 631 (Tex. Crim. App. 1998). Once the plea is entered, the procedure becomes a "unitary trial" to determine the remaining issue of punishment. See Frame v. State, 615 S.W.2d 766, 767 (Tex. Crim. App. 1981). However, even then, there does not exist a per se punishment phase. Carroll, 975 S.W.2d at 631. By submitting his guilty plea to the offense charged, a defendant admits the existence of all facts which are necessary to establish guilt. Id. The introduction of State's evidence after the plea is merely to enable the Judge or jury discretion in assessing punishment. Id. at 632.
In sum, the evidence submitted by the State in court included (1)the TDPS offense report, (2) the breath analysis reading, and (3) the police officer's report. When asked if he had any objection to this evidence, Gonzales replied that he had none. The court found the evidence substantiated Gonzales's admissions and guilty plea. However, the court decided that it would need more information regarding Cadena's injuries. The trial court's stated purpose for seeking more information was to find out more about the consequences of Gonzales's conduct. The trial court stated, "If its simply a driving while intoxicated on the wrong side of the road in an accident with no one hurt, I might be more lenient than if someone was hurt, and I'd probably be more lenient than if someone was hurt than if someone was killed."
Based on these facts, the trial court did not reset the case as Gonzales would assert. Implicitly, the court's consideration of the extent of Cadena's injuries was to effect its determination of punishment. The trial court's decision to continue did not amount to another trial on guilt. Rather, the trial court's decision to seek more evidence on injuries amounted to a continuance of what should have been a unitary proceeding. See Tex. Code Crim. Proc. art. 27.13 (Vernon 1989). In doing this, the trial court was merely seeking evidence which would enable it to intelligently exercise its discretion when determining punishment. See Carroll, 975 S.W.2d at 632 (citing Ex parte Williams, 703 S.W.2d 674 (Tex. Crim. App. 1986). Thus, this decision did not constitute a second prosecution on the offense charged. Accordingly, we overrule appellant's sixth issue.
Conclusion
For the reasons stated above we overrule all issues raised by the appellant, and affirm the judgment of the trial court.
Alma L. López,
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