Basaldua v. State

fore, was assessed punishment since the purpose court, remand for the sole we by the court. punishment

of reassessment

It is ordered. by the Court.

Opinion approved BASALDUA, Appellant,

Jorge Texas, Appellee. STATE

No. 54427. of Texas. Criminal

Nov. 1977. Motion for Denied Rehearing

State’s

Nov.

OPINION ONION, Judge. Presiding from an order appeal purported is a refusing modify to alter or conditions probation.1 7,1975 guilty appellant entered July

On having waived before the court after plea possession offense of by jury trial of more of marihuana quantity a usable was as- His punishment than four ounces. Department (3) years sessed at three a fine of of Corrections and $200.00. suspended was imposition of the sentence placed probation was appellant and the proba- to certain (3) years subject for three conditions, which included: tionary assessed, fine, and if one be Pay “h. his including all court costs at- $100.00 torney’s (Court fees attor- ney) whether a fine be assessed or not, sums, in one or several and reparation make restitution shall deter- any sum mine per attorney payable fees $10 “$100 starting Aug. month resi- his person, place “h-1. Submit and vehicle and sei- dence to search day night, time of the any zure at without a warrant with or search whenever requested to do other law Probation Officer or enforcement officer.” imposi- that at the time of the appears It and appellant tion of these conditions the objected court-appointed appeal but no particular taken time. at filed appellant 1975 the On November modify conditions a motion to stricken asking that the two conditions A granting probation. from the order Juan, ap- Harrington, James C. San January motion was held hearing on the pellant. matter under 8,1976, the court took the the court Mclnnis, Terry D. March Atty. Dist. advisement. On Oscar motion, Edinburg, April Dist. and on Key, Atty., Asst. denied gave notice of appellant State. time, during may,

1. Article modify part: period the condi- vides alter or tions ..” having jurisdiction of the case “The court shall determine the terms and conditions thereof shall and each member condi- said refusing modify order alter have, power and hereby given, and is probation. tions of cause issue and grant authority with the initially We are confronted of mandamus of writs the issuance procedural question of whether principles agreeable certiorari lies from such an order. writs, whenever in the regarding said law V, 5 Texas Article Constitution § any or member said court of judgment jurisdiction of the Court of necessary be same should thereof the Criminal follows: Appeals as of said court.” jurisdiction enforce the “The Court of shall Appeals Criminal State, it is stated: In Walker v. supra, appellate have coextensive with the limits state all criminal in “It is from constitution- clear the above excep- with grade, cases of whatever such that the Court statutory provisions al and regulations may as tions and under such appellate juris- has Appeals of Criminal law. prescribed by cases State in all criminal diction . law in Arti- Appeals by

“The Court of Criminal exception made with the the writ of originat- shall have the to issue cases power 4.03, relating to supra, cle regula- under such corpus, habeas Mu- Peace and Justice of the ing law, issue may tions as prescribed de and tried novo nicipal Courts to enforce necessary such writs as bemay as- the fine then where County Court its .” jurisdiction. own Bridges v. less. or sessed $100.00 State, (Tex.Cr.App.1968); 931 423 S.W.2d provision, constitutional Under such State, 489 (Tex.Cr. 622 Leggio v. S.W.2d make power has the Legislature 4.03, supra, also Article App.1973). See right appeal proper exceptions to cited. 7, there # and cases note regulate appellate criminal cases and Ap jurisdiction of the Court Criminal constitutional clear from the “It is also State, peals, see Walker v. .2d 38 537 S.W Ap- Criminal provisions that State, 98 (Tex.Cr.App.1976); De Silva v. gener- have Judges thereof peals and the (1924), 271 and also 267 Tex.Cr.R. S.W. of habeas writ authority al to issue issue provide which the court writs Further, prescribed corpus. may, Walker v. jurisdiction. to enforce its own necessary may be law, issue such writs as State, supra. jurisdiction. general own enforce its ex State also 4.04, supra. See Article See Ann.C.C.P., pro- 4.03, Vernon’s Blackwell, 97 S.W.2d v. 500 rel. Smith vides: Giles, 502 Ex parte (Tex.Cr.App.1973); shall Appeals Criminal “The Court of (Tex.Cr.App.1973). 774 jurisdiction coextensive appellate writs, than other to issue court in all criminal with the limits of limited.” is thus corpus, habeas con- shall be so This Article cases. which has as to case strued embrace by statute established Further, it is court to from inferior appealed been may review Appeals Court of Criminal court, criminal county county by appeal cases in criminal forfeiture bond law, court, in which court county final writ error from court, the imposed by county fine Articles bond. See forfeiting the bail court at county criminal county Ann.C.C.P.; Walker 44.43, 44.44, Vernon’s dol- one law shall not exceed hundred State, Tex. v. 155 State, Glenn v. supra; lars.” v. (1951); Kubish 498, 236 809 Cr.R. Ann.C.C.P., pro- 480 State, 84 S.W.2d Tex.Cr.R. 128 State, 73 Tex.Cr.R. v. Hodges (1935); vides: State, 86 Tex. (1913); Jeter 165 S.W. In addition “Sec. Swanson (1894); 555, 26 S.W. now vested the Court authority 334 S.W.2d Texas, 169 Tex.Cr.R. the State of Appeals of Criminal The Court of Criminal proceeding since to dismiss the not exceed its as stated in 15 require separate a new and Tex.Jur.2d, Courts, 23, p. 445: application require would a useless thing. . When proceeding (Tex.Cr. See Rice v.

which an attempted App.1977); comes with- Ramirez v. none the statutory or constitutional 373 (Tex.Cr.App.1972); Taylor v.

provisions conferring jurisdiction, (Tex.Cr.App.1972).

court will not exercise authority We conclude that the facts raise a issue and fall within neither We find constitutional nor statu- our corpus jurisdiction.2 See Ex tory authority jurisdic- would confer Herrin, 537 S.W.2d 33 (Tex.Cr.App. tion on this court to hear an appeal from an 1976). pursuant 42.12, 6, order entered to Article § 1),

supra (footnote altering # “The writ of modifying corpus habeas is intended order, conditions or an probationary applicable as in to be to all . . . cases of case, refusing restraint, the instant modify alter or confinement and where there is such conditions. It must be remembered no lawful right person exercising that is not an appeal from an where, order power, though power granting probation, 42.04, cf. Article Ver- exists, fact it is exercised in a manner or Ann.C.C.P., non’s nor is it an appeal from degree not sanctioned by law.” Article an order revoking probation. 42.12, Article 11.23, Vernon’s (Emphasis Ann.C.C.P. 8, Vernon’s Ann.C.C.P. We conclude § that added.) this court lacks the authority to entertain a Ann.C.C.P., Vernon’s direct appeal from the order entered. See defines “restraint” as: State, and cf. Walker v. supra; Hardin v. “. . the kind of control which State, 283, 157 Tex.Cr.R. 248 S.W.2d 487 person one another, exercises over not to (1952); Morgan 76, 135 Tex.Cr.R. limits, confine him within certain but to (1938); 117 76 Griffin v. subject him general authority and 349, 350 (Tex.Cr.App.1930). See person claiming such right.” (Tex.Cr. also Bretz v. 508 S.W.2d 97 (Emphasis added.) App.1974); Swanson v. supra. We imposition conclude that of condi- tions of that contain unconstitu- Although purported appellant infringements tional of freedom of action has characterized the appeal, case as an he constitutes “restraint” within scope prays, by supplemental brief, that if this relief. Ex parte See court decides that no appeal lies then the Guzman, 551 (Tex.Cr.App.1977) proceedings considered as an application Therefore, (Concurring Opinion). we will for writ of corpus. He cites Ex address constitutional appellant’s argu- Giles, (Tex.Cr.App. ments on the merits. 1973), where the court was asked to issue a writ of mandamus beyond which was its Appellant challenges the constitu since its was not tionality of recoupment the Texas scheme endangered but where the court considered grants which the trial court discretion to pleadings as an application require, for writ of that probation, condition of corpus. If the facts raise a proper repay county convicted defendant for issue, habeas corpus proceedings then the providing court-appointed him with should be considered as a habeas counsel.3 Appellant argues plan that original jurisdiction 1018, It has been said that the 3. See Articles 42.12 and Vernon’s Ann.C. 29, August of this court to issue writs of habeas C.P. On 1977 the amendment n 479, 6, Briggs, unlimited. State v. 171 Tex.Cr.R. became 892, (Acts 1977, Leg., p. See also Article effective 65th ch. 11.05, Vernon’s Ann.C.C.P. deprived continuing was thus means to process

violates the due clauses Unit- Constitutions; (3) family; and Texas support ed States himself equal protection clauses of regardless violates recoupment for provided statute and Texas Constitutions United States indigent defendant ac- whether appellant harsher sanctions imposing Powell noted quitted convicted. Justice than for his paying recoup- apparent that state is thus “[i]t who fail to imposed persons are those signifi- procedures ment differ laws finally, private attorneys; their pay the wide differ- cantly Given in- indigent defendant charging that so statutes, ences in the features of his with the exercise terferes general on their pronouncement broadside counsel. inappropriate.” would be U.S. validity on the authori- Appellant primarily relies p. at 2030. We believe p. 92 S.Ct. 128, 92 Strange, James v. 407 U.S. ty of signifi- recoupment plan differs Texas (1972), 32 L.Ed.2d 600 and deci- S.Ct. cantly Kansas statute and simi- from the such jurisdictions, sions from other as Cali- lar to Oregon recently statute more which invalida- Michigan, fornia upheld supra. v. Oregon, in Fuller He at- particular recoupment ted schemes. Oregon in Fuller that the Court held the more recent deci- tempts distinguish statute, provided opportunity Supreme of the United sion States legal a convicted defendant to show Oregon, Fuller v. 417 U.S. S.Ct. hardship, impose costs manifest did would upheld (1974), 40 L.Ed.2d 642 the clause. The equal protection not the violate An Oregon recoupment plan. examination repayment legislative impose not to decision Texas our interpretive of the statutes and who are not con- obligations on defendants Oregon, in the context of Fuller v. decisions are reversed victed or whose convictions Strange, supra, supra, and James v. con- an rational one. objectively was to be held is recoupment plan vinces us that the Texas statute Further, held that the did the Court constitutional. to coun- not on a defendant’s infringe a supra, James v. concerned Strange, sel. recoupment Kansas statute4 that allowed out, points As the in the case at bar State recover, subsequent to in civil the State Oregon statute constitutionality the of the legal for indigent defense fees proceedings, An examina- rested several conditions. on The Court invalidated defendants. that it reveals also tion of the Texas scheme three Kansas statute for its deficiencies in First, only a con- these conditions. satisfies (1) unavailability areas: defendant may be ordered Oregon victed in defendant provided judgment for other exemptions Similarly, to pay court costs. the Kansas Code Civil Proce- debtors Vernon’s dure; 6, and Article 3a and (2) exemptions, without the a defend- §§ Ann.C.C.P., payment of subject wage garnishment impose liability was to for ant 1058). expressly obligated provides to the State This becomes amendment defendant proba- suggested expended of the his behalf. one may for amount days expenditure, be: the de- tion Within 30 given is notified of his debt and county pros- fendant days “O') in which Reimburse the unpaid repay it. If to the sum remains compensation for was instituted ecution paid 60-day period, judgment defending is docket- appointed after for to unpaid case, against amount appoint- defendant ed if counsel was him the not, indigent how- is . defendant . ed.” provid- Thus, appointed ever, exemptions the reimbursement for coun- accorded of Civil not have included as Code to be court costs. ed that code Kansas [the sel bearing amendment has no on issue to debtors ex- for other Procedure] cept ” exemption. here. be decided the homestead opinion from Justice are Powell’s [Footnotes operation Powell 4. Justice described 130-131, pp. U.S. at S.Ct. omitted.] in this fashion: statute p. indigent “When de- services, legal with counsel or other fendant Oregon person no Finally, convicted a convicted defendant. Per- only costs on failure to contempt for whose trials end in be held in acquitted, sons are who due to an whose was not repay are dismissed those if mistrial or default are the court’s order obey are overturned to convictions intentional refusal Texas. for costs in liable faith effort good a failure make a or to pay. Second, Oregon plan under the above, for a defendant cannot forced revocation

convicted As discussed pay costs unless he is will be able court compensation repay bationer’s failure to 1018, supra, impos to do Texas Article so. counsel, costs, etc., improper if es, law, charge a con a matter of that he is unable probationer establishes victed for court costs fees. defendant such payments.6 to make 42.12(6)(h), al in Fuller reasoning We feel ade- that the impose lows a court to condition of arguments con- quately appellant’s answers that a requirement defendant constitutionality of the cerning the Texas “pay ... all court costs Therefore, plan. appellant’s recoupment reparation and make restitution or ground first error is overruled. sum shall that the court determine.” How Appellant argues next ever, decisions of this repeated trial court his motion to denying erred made it clear that may not condition pay revoked failure to unless remove search and seizure costs probationer State shows the United probation because violates able such payments to make and that his and Texas We con States Constitutions. See, failure so was intentional. e.g., to do case, clude that the in the instant condition Herrington (Tex. identical the one in Tamez Cr.App.1976); Denton v. (Tex.Cr.App.1976), overbroad 311 (Tex.Cr.App.1974); Szczeck v. rights probationer’s and does violate the 490 S.W.2d 576 (Tex.Cr.App.1973). A under the Fourth and Fourteenth Amend recent amendment to Article ments to the United Constitution States now makes available I, and Article 9 of the Texas Constitution. § to a probationer an affirmative defense if probationer, A has the parolee, like a he can establish that he is repay unable to to a enjoy privacy. of significant degree compensation paid appointed to counsel5 Tamez v. United States v. supra; prior thus modifies case law. The re Consuelo-Gonzalez, (9th 521 F.2d 259 Cir. in sult Texas was and is consistent with the 471, 1975); Brewer, 408 U.S. Morrissey v. second condition stated in Fuller. 2593, 5.Ct. 33 L.Ed.2d Third, person Oregon may a convicted hereby partially corpus Habeas relief petition the court for remission of costs or that the uncon- granted; it is ordered portion of thereof. While Tex- unpaid condition stitutional search and seizure law expressly as does not authorize remis- from terms and conditions of deleted the costs, supra, of sion does allow probation. appellant’s probationer to the petition the court to It is ordered. modify probation. the conditions of probationer for a opportunity an ODOM, concurring. Judge, pay who is to financially unable costs to call majority I concur conclusion of the to the court’s to the hardship attention and lie appellate have condition does not jurisdiction this modified eliminated. by 8(c), 5. Article now reads: ordered court is an affirmative the defense revocation, probationer to which the must “(c) probation hearing In a revocation by prove (Acts preponderance of evidence.” alleged probationer that the which it is violated 1977, Leg., p. 61], 65th ch. 1058 [S.B. by probation failing pay the of conditions to August 1977) effective counsel, compensation paid to restitution, fees, costs, repara- bation tions, 6. See footnote # 5. inability probationer pay as the to case, jurisdic- parte Taylor, Tex.Cr.App., Ex S.W.2d corpus this and that habeas 752; Casarez, Tex.Cr.App., tion does lie. I also share the concern ex- parte Ex by may pressed the dissent that some mis- I For this reason 622. 508 S.W.2d majority opinion creating construe the as of corpus our habeas concur in the exercise “expansion jurisdic- corpus of our habeas issue. the Tamez jurisdiction in this case on box’ of open tion ‘Pandora’s [that] us on Furthermore, the case before with however, not, frivolous claims.” I do find to ad- in the decision ground I concur imposi- conclusion “that majority’s by petitioner issue raised dress other probation of of that contain tion conditions found, purpose no jurisdiction well. Once infringements of freedom unconstitutional by declining would be to decide served within of action constitutes a ‘restraint’ probation of validity challenged the other creates such scope corpus of habeas relief” condition, light signif- particularly expansion by as contended broad-reaching of issue. icance jurisdiction majority dissent. The find of our concur in exercise I therefore unconstitu- appellant’s tenable claims of hear chal- corpus and do probation, not tional conditions under the lenges may for all attacks open door facts of this case. conceived, of consti- if frivolous or not even magnitude. tutional DOUGLAS, dissenting. Judge, noted It should be This Court does not appeal. be used substitute there strike a where condition Tex.Cr.App., Mixon 365 S.W.2d has been no 364; Eldridge, Ex 154 Tex.Cr.R. has been original trial and where there 262; Ex 153 Tex. parte Loper, 224 S.W.2d probation. no motion revoke After 240, 219 81. The Cr.R. expired, Basaldua time for had of a condi- challenge validity means to a condition judge asked the trial to delete imposed at conviction is tion of probation, he refused. From This Court appeal from that conviction. by purported appeal. we have this refusal time. such claims at that Mo- will consider 541 S.W.2d Tex.Cr.App., rales v. Questions jurisdiction. We do not have 443; State, Tex.Cr.App., 513 Flores v. fundamentally questions jurisdiction are 66; State, Tex.Cr.App., Faugh has to act A court no power. 412; Tex.Cr. Milligan v. not exist. jurisdiction does where special cir- App., Only jurisdiction is conferred Habeas be availa- cumstances should the Texas Constitution this Court condition validity of a challenge ble to Procedure. the Code Criminal at conviction. probation imposed part: 5 of Sec. the Constitution was convict- petitioner In the case at bar and “The of Criminal placed July ed power Judges thereof shall have the of his The condition search and seizure shall corpus, issue writ of habeas (set majority opinion) in the was bation out regulations prescribed under be State, time. Tamez v. Tex. imposed at that neces- law, may be by issue such writs as decided on Cr.App., 534 S.W.2d jurisdiction sary to its own enforce probationary March held the one here was unrea- condition such as V.A.C.C.P., provides: Because Tamez sonable and unenforceable. intended writ habeas is “The con- appellant’s probation was decided after confine- such cases of applicable to all have benefit he did not imposed, dition was no restraint, where there ment and he have raised when could holding exercising person lawful in the Petitioner should not appeal. the issue on where, though power, or anticipate this failing be faulted or manner exists, exercised in a supra. fact it is in Tamez v. Court’s decision The Ramirez case involved a revocation degree by (Empha- not sanctioned law.” probation. not have and did added.) He did sis The waive trial. original majority provi- The concludes that Taylor at- a collateral permit case did not sions authorize Basaldua’s collateral attack In the Rice original tack on the conviction. upon search and seizure condition of at- jeopardy case the conceded that probation. contrary, To the the statute ex- conviction. On prior tached to a pressly jurisdiction only authorizes where In those judgment Court set a void aside. applicant is in custody under arrest. with issues which cases we were confronted Guzman, Ex parte (Tex. See 551 S.W.2d 387 corpus. raised habeas properly could Cr.App.1977) (dissenting opinion). disposed The Court of those issues judicial economy. interest of probationary in question condition In the instant case this Court has no requires “[sjubmit that Basaldua his person, Further, appellate jurisdiction. in those place of residence and vehicle to search and other cases the facts did raise a seizure at any day night, time of the habeas claim and would invoke Court’s with or without a search warrant whenever In jurisdiction. present requested to do so the Probation Officer case, however, Basaldua’s Fourth Amend- other law enforcement officer.” ment claim is not within our habe- properly The identical condition was declared consti- as corpus jurisdiction previ- for the reasons Tamez v. tutionally infirm ously stated. (Tex.Cr.App.1976). Today’s holding represents an unwarrant- However, judgment in the instant expansion of our corpus jurisdic- ed 7, 1975, case was July prior entered on open tion and will a “Pandora’s box” of Tamez. Heretofore the decision majority’s frivolous claims. Under the rea- search and seizure condition has not been soning, probationers collaterally future can used against Although Basaldua. such con- by challenging any attack orders unlawful, dition is we cannot act on his probation, statutory conditions of or other- habeas claim presuming without the wise, present which no real threat of con- probation or other Consider, officers will fail to fol- finement or restraint. for exam- many probationers low the law in who will now ple, the future and will use the relief con- probably file condition against the applicant. tending prohibit them There has been showing pending no of a persons of “harmful associating with threat to Basaldua’s privacy. Under these vague. unconstitutionally character” are circumstances, no restraint within the Even that we have assuming meaning exists, and, thus, of the statute claim, of the Fourth Amendment we should Court has no of his claim. grant declaratory not issue a The majority relies on Rice v. showing there is no sought relief when Ramirez v. 725 (Tex.Cr.App.1977); pending privacy. of a threat to Basaldua’s State, 373 (Tex.Cr.App.1972); probationary If condition is used Taylor (Tex. future, against him in the and his Cr.App.1972), proposition that both revoked, then on challenge he can appeal. of Basaldua’s claims raise issues, corpus proceedings and that “the major A constitutional revision has been corpus should be considered as a habeas this proposed to alleviate workload of proceeding appeal since to dismiss the and majority aggravating is Court.

require separate a new and this. by passing situation on issues such as a application require thing.” would useless Presiding Judge As the and author of the in a point. majority opinion Those cases are not in In each of stated similar context: those the this appellate of Court the present “. . Since information used, properly likely invoked. therefore not I see no 10 Court, application From for habeas with the heaviest search. his for this

necessity to appellate court knows that he does not have any case load of he sufficiency nation, upon may write He this to to a search. inform submit not control an that does to peace information that he refuses consent officer case before proper disposition used not be provision ” v. 538 Court Bullet No confronted with a against judge him. (Tex.Cr.App.1976). 787 re- probationer motion to revoke because revoke consent search would fused to to to deal in the majority going If the is Tamez, supra. being after cited or even possible it is possibilities, realm If is of an evidence obtained result might appeal refusal probable that one search, it illegal can be reviewed as upon sup- a motion to judge a trial to act has jurisdiction. other case where this Court was obtained as press evidence because it There search. would illegal result an have Court does than restraint in that case have been more pass upon this it should question, Bosley case. In present in the hold. the writer of (Tex.Cr.App.1967), opinion wrote Court majority ROBERTS, J., in this joins dissent. pass upon have to judge that a trial did not but could suppress evidence motion If question during the trial. consider the except no other evidence

there had been search, Bosley by the would

that obtained more of a restraint than

have been under there has been no alle-

Basaldua is because Basaldua has been or about to

gation that searched. illegally

Again suppose in the realm of possibility, one that a search warrant has learns QUINN, Appellant, David Paul he building, seeks to been issued his vacated, a judge it but will not do so. majority, he could opinion Under the Texas, Appellee. The STATE of he is under that decision because may violate his

restraint and an officer No. privacy. of Texas. Criminal has an Any charged time one been arrested, under some sort offense and he is 23, 1977. Nov. However, this Court does not of restraint. ha- upon his detention

permit an attack under which

beas unless statute Brannon, Ex charged parte

he is is void. (1956); Tex.Cr.R. Merriell, Tex.Cr.R.

Ex has to be a con- There allegation

viction before illegal There detention is considered. present

should not be a different rule revoked,

case. If his he can

appeal. State, supra, Tamez v. has been

Since

decided, law is the of this submit

Basaldua does not have to

Case Details

Case Name: Basaldua v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 2, 1977

Citation: 558 S.W.2d 2

Docket Number: 54427

Court Abbreviation: Tex. Crim. App.