                                        DISSENTING OPINION

                                              No. 04-09-00237-CR

                                      Victorino Camargo GUTIERREZ,
                                                  Appellant

                                                      v.

                                                STATE of Texas,
                                                   Appellee

                        From the County Court at Law No. 2, Bexar County, Texas
                                        Trial Court No. 920451
                              Honorable Brenda Chapman, Judge Presiding1

Opinion by: Karen Angelini, Justice
Dissenting opinion by: Steven C. Hilbig, Justice

Sitting:           Karen Angelini, Justice
                   Sandee Bryan Marion, Justice
                   Steven C. Hilbig, Justice

           I agree with the majority’s analysis and resolution of all issues except for the majority’s

conclusion that the trial court’s error in failing to order a presentence investigation affected

appellant’s substantial rights. I believe that under the facts of this case, the error did not affect his

substantial rights.

           A non-constitutional error does not affect a defendant’s substantial rights if, after examining

the entire record, a reviewing court “has fair assurance that the error did not have a substantial and

injurious effect or influence in determining the jury’s verdict.” Garcia v. State, 126 S.W.3d 921, 927

(Tex. Crim. App. 2004). In conducting a harm analysis, we are to consider the “character of the error

and its relationship to other evidence.” Schutz v. State, 63 S.W.3d 442 , 444 (Tex. Crim. App. 2001).




           1
            … Former judge, sitting by assignment
Dissenting Opinion                                                                     04-09-00237-CR



        The majority concludes Gutierrez was harmed because the trial judge failed to comply with

the Texas Code of Criminal Procedure by either having a presentence report prepared or explaining

on the record why she had sufficient information to permit the “meaningful exercise of sentencing

discretion.” TEX . CODE CRIM . PROC. ANN . art. 42.12 § 9 (Vernon Supp. 2009). The majority

acknowledges the trial judge had sufficient information about the circumstances of the offense and

Gutierrez’s criminal and social history, but concludes the trial court erred because it did not have

before it a “proposed client supervision plan describing programs and sanctions that the community

supervision and corrections department would provide the defendant if the judge suspended the

imposition of the sentence or granted deferred adjudication.” See id. § 9(a). Without further analysis

or explanation, the majority simply holds it cannot not either presume the judge had knowledge of

such programs and sanctions or that Gutierrez was not harmed by such lack of knowledge. This is

the point where I diverge from the majority’s analysis.

        Gutierrez would be harmed if the trial judge’s lack of knowledge of programs and sanctions

available under a sentence of community supervision caused the trial judge to not grant Gutierrez

probation. Stated another way, the majority’s holding necessarily implies that the judge’s lack of

knowledge of such programs and sanctions had a substantial and injurious effect upon his sentence.

However, this presumes the trial judge would have considered probation a viable sentencing option.

This was hardly likely based on the evidence in the record. There was evidence at the punishment

hearing that Gutierrez had three prior convictions for driving while intoxicated. Despite trial

testimony that he had consumed eight beers the night of his arrest, Gutierrez testified during the

punishment hearing that he was not intoxicated that night and he disagreed with the jury’s verdict




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Dissenting Opinion                                                                      04-09-00237-CR



because he was “not drunk.” It is highly unlikely a judge would sentence an unremorseful, fourth-

time DWI offender to probation, regardless of any available program or sanction.

         And this court can certainly take judicial notice of the trial judge’s experience. An appellate

court may take judicial notice of a fact without a request from the parties. See TEX . R. EVID . 201;

Zarychta v. State, 44 S.W.3d 155, 165 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d), cert.

denied, 535 U.S.1105 (2002). Judge Chapman served for eight years as the judge of a county court-

at-law in Comal County, stepping down from that bench in 2006. Since that time she has served as

a visiting judge in Bexar County on several occasions. A simple search of our court records

indicates that this court has handled at least five criminal matters where Judge Chapman served as

a visiting judge in the county courts-at-law in Bexar County. From her service as a judge, it is

reasonable to infer that Judge Chapman has knowledge of the programs and sanctions available to

DWI offenders in conjunction with a sentence of community supervision. See VanNortrick v. State,

227 S.W.3d 706, 709-10 (Tex. Crim. App. 2007) (discussing appropriate inferences reviewing court

may draw from record when conducting a harm analysis).

         Based on the record as a whole, I would hold that the trial court’s failure to have the

presentence report and its “proposed client supervision plan” did not affect Gutierrez’s sentence and

therefore did not affect his substantial rights. Accordingly, I would affirm the judgment of the trial

court.



                                                         Steven C. Hilbig, Justice

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