*1 appointed trial court As a counsel. Appeals result the Court concluded
they were unable extend the time
designate leaving the record complete transcription of the
without a Thus, reporter’s
court notes. his attack sufficiency of the evidence was State, v. reviewed. See Crawford (Tex.App. Antonio [4th — San 1986).
Dist.], Discre-
Appellant has filed a Petition for alia, alleging, that he
tionary Review inter denied the assistance of
has been effective delay appointing coun-
counsel due to the agree. Ward
sel. We (Tex.Cr.App.1987). S.W.2d 794 Garrigan, B. Mitchell Daniel P. Lawrence Therefore, the cause is remanded Dallas, (on appeal only), appellant. for Appeals with instructions abate Wade, Atty. Dist. Michael A. Henry appeal to the trial court in order that Klein, Phillips, Rider Scott Robert proper appeal, with and record can counsel Huttash, Dallas, Attys., Asst. Dist. Robert had. Austin, Atty., State’s the State. PETITION
OPINION ON APPELLANT’S * REVIEW FOR DISCRETIONARY BROWN, Byrne Appellant, McCORMICK, Judge. Robert Appellant tried convicted before County for the crime jury in Texas, Appellee. The STATE of V.T.C.A., manslaughter. Pe- involuntary No. 861-84. Code, Appellant’s pun- 19.05. Section nal term of set at a ishment was Texas, Court of Criminal Appeals of De- in the Texas years’ ten confinement En Banc. partment of Corrections. Dec. ground to this sole Court, appellant generally contends that in over- court committed error “[t]he ruling appellant’s offer of the admission stage evidence at relevant Crim. in violation Tex.Code the trial (1965).” particular- 37.07 More Proc.Ann. proffered ly, testimo- appellant asserts ny the trial court operation relating regula- as the rules and department as well concerning the conduct of a tions have been admitted before tioner should manner which to establish supervised manner in probationer is on the revoked. he *2 454
Appellant Ap- 37.07(3)(a), supra, in of contended the Court Article fol- reads as peals that evidence in such was admissible lows: punishment. overruling of prior “Sec. of Evidence criminal
appellant’s error, ground of the record in all criminal cases after a find- Appeals held: ing of guilty can in miti “Factors that be introduced “(a) Regardless plea the of and whether gation punishment of are that have those punishment by be assessed the relationship to the of the circumstances or jury, may evidence be offered or offense or to defendant before by the state and to defendant as the time of the which offense. Factors prior record of criminal the defend- independently arise after the offense and ant, general reputation his properly defendant are excluded. prior character. term The criminal State, 716, (Tex.Crim.App.1979), Stiehl v. 585 718 S.W.2d record means a final in a conviction denied, 449 t. U.S. record, probated court of a or or sus- cer 1114 926, S.Ct. 66 L.Ed.2d pended [101 843] has pri- sentence that occurred (1981). holdWe that evidence trial, or to any final conviction mate- of supervision and revocation rial charged.” to the offense probation independent appel was us, In the case the State main before lant conduct and his and was therefore that not tains the evidence offered does State, properly v. excluded.” Brown appellant relate itself or the offense 1984). (Tex.App. 674 443 S.W.2d — Dallas himself before the time of the of or at (Emphasis Supplied). fense. The that State maintains the evi Appellant’s petition granted was to re- indepen dence which involves factors are holding. view that appellant dent and are thus inadmis appellant on the sible. other hand sufficiency the evidence v. this Allaben cites Court to cases of questioned. appellant by A vehicle driven State, (Tex.Cr.App. 519 struck police and killed a Dallas officer State, 638 1967); Thomas v. 481 S.W.2d investigating who was an accident which (Tex.Cr.App.1982), and Stiehl v. 585 freeway. occurred on a Dallas The evi- (Tex.Cr.App.1979). 718 S.W.2d dence that showed intoxicat- was ed at the time his vehicle struck the officer. previously This Court has settled this Logan 455 issue case of trial, Robles, testimony At of Linda (Tex.Cr.App.1970). S.W.2d 269-270 officer, probation was offered. She State, 577 also, Daniel v. S.W.2d would have testified as to the terms and Levingston (Tex.Cr.App.1979), imposed proba- conditions which (Tex.Ap p probation tioners and the manner which —Dal 1983). las, may be revoked. She would have tes- also drug pro- tified that there are alcohol and Logan, supra, attorney the defense grams probation administered office pro- from a sought to introduce which could have been ordered to concerning purpose bation participate condition of characteristics probation and the which tion; probation” pro- and that “intensive applicant made for favor- grams are in effect which involve a would candidate. The trial court refused able greater degree supervision appel- and this Court held allow lant if so the court ordered. no error was this refus- committed al. This noted that received Appellant contends that this evidence is required court was 37.07, supra, an instruction that the admissible under Article be- grant if the recommended appellant’s re- cause it is relevant The court also instructed the quest appellant, also it. granted the court mitigating this if was maintains that evidence is a impose statutory condi- required factor have con- certain specified imposing The court those condi- punishment. sidered tions. then before Court, Appeals the Dallas Court of 42.12, by this in Article Y.A.C.C.P. tions set out Furthermore, opined: found that this Court requisites
purpose introduced miti “Factors that can be knowledge. and common of law matters are those that have gation *3 have been amended Although the statutes the relationship to the circumstances of a Judge dis- noted in Clinton’s correctly as or at to the defendant before offense or reasoning in senting opinion, we find the of the offense. Factors which the time Logan still viable. independently the offense and arise after properly the benefit excluded. appellant in this case had of the defendant appli- (Tex.Cr.App.1979), setting forth the jury 585 718 of a instruction Stiehl proba- of possible denied, conditions 1114 cable law 449 U.S. t. cer Among listed were (1981).” the conditions tion. 66 L.Ed.2d S.Ct. 843] [101 appellant report requirements that 443, at 447 674 S.W.2d Brown v. directed, he could that probation officer 1984). Accordingly, the (Tex.App. — Dallas injurious or vicious ordered to avoid that “evidence of Dallas Court held resti- pay he ordered to and that he habits of supervision and revocation tution. independent testi- perceive proffered do not We proper therefore and was and his conduct any rela- to have had mony of Ms. Robles ly excluded.” Ibid.1 mitigation punishment, but tionship to appellant as- for review petition In his applica- a recitation of the law was instead decided an Dallas Court has serted that the probation. ble to which has important question of state law every way relevant to the issue before In been, be, by this settled but ap- circumstances of the us the facts and 302(c)(2); Court, Tex.Cr.R.App.Pro. Rule are identical to those Lo- pellant’s case alternatively, urges he then more or less So, too, reasoning. gan, supra. our law question of state important on an that given issue on this instruction appli- in conflict with the decision below necessary all the law for the contained Id., Rule decisions of this Court. cable regarding appellant’s to make its decision Rule 302(c)(3). Tex.R.App.Pro. now this testi- request To admit (3), respectively. 200(c)(2)and logically mony make it consistent would Court, majority opinion for the In its con- offered the State admit appeals of the court the decision notices cerning procedures and the administrative the Dallas reason by quoting the stated programs practiced by the rehabilitative overruling point of error gave for Court Department Texas of Corrections. court. of the trial judgment to affirm logical result of this would and inevitable However, it makes no 1. Slip Opinion, at escalating to allow an “battle assigned by the the reason to review effort develop during experts” to decision, I and to that for its Court probative val- phase of the trial. Whatever first turn. far out- testimony would have is ue this ac- State, supra, the Court Stiehl preju- weighed by danger that it would Allaben v. knowledged that under trier of fact. dice or confuse the (Tex.Cr.App.1967), no error hold that there was We mitigate legally admissible “[ejvidence this testimo- refusal to admit trial court’s Id., at is also admissible.” punishment ... We, therefore, appellant’s overrule the ny. mitiga- that factors But it stated judgment and affirm ground for review the offense arise after tion “which Appeals. of the Court should not of the defendant” independently Ibid. admitted. CLINTON, dissenting. Judge, Carolina, Recently Skipper v. South underly- overruling point of error L.Ed.2d 106 S.Ct. 476 U.S. addressed
ing ground noted. throughout other- wise emphasis unless is mine 1. All
(1986),
case,
capital
Supreme
Nevertheless,
in the instant cause the
the United
held that
States
exclusion of majority suggests
that
had “the
jailers
during
and others that
benefit” of
giving
instruction
pretrial
incarceration defendant had be-
“possible
cable law and
conditions of
haved and adjusted
right
well violated his
Maj. Opinion,
tion.”
at 454. It is not even
present
all
evidence in mitiga-
relevant
nearly
same,
and whatever merit there
punishment.
tion of
Since evidence to miti- may be in its characterization of a Lo-
gate punishment is
in noncapi-
admissible
gan instruction
“benefit,”
as a
in that
case,
Allaben, supra, we should hold
tal
told what the court must
do,
postoffense
factors in
fact
given
remains
hardly
one
here
punishment implicating an accused are ad-
bestows
anything
value.
It
instructs
*4
missible.
jury
recommended,
if
is
may
impose
“The
any of the follow-
Court
It follows
opinion
extent the
ing terms and conditions:” followed with
may
preclude
below
be read to
such evi-
an enumeration of twelve of them. Where
mitigating
dence of
involving
factors
an
is a “benefit” in such an abstract
instruc-
“arising
accused
after
the offense” it
tion?
should
disapproved.2
be
dangerous
say
It is
to
this instruction
confronting
Instead of
the holding of the
necessary
“contained all the information
ante,
Appeals,
quoted
at
jury
for the
Slip
to make its
page 453,
although
decision[.]”
and
not cited or dis
Opinion,
once,
at 4.
it
every-
At
contains
by
party,
cussed
majority
either
an
thing
nothing.
This kind of instruction
previously
nounces that the
“has
set
give jurors
slightest
does not
even a
hint
Logan
tled” the issue in
455 S.W.
may
about how the enumerated conditions
2d
(Tex.Cr.App.1970).3
269-270
guide their deliberations on whether to rec-
problem
relying
The
alone on Logan
with
probation, particularly
ommend
when the
is that it
in
was decided
1970 when
3a of
§
jury
given
to understand that the court
parole
former adult
law
alone will determine terms and conditions
provided in
upon
its last sentence that
rec-
actually imposed on defendant.
probation by
ommendation of
jury
“the
Finally,
page
455 and
identify
without
impose only those conditions
may
court
it,
ing
the majority
specter
raises the
which are set
in
forth
Section 6 hereof.”
Schulz v.
(Tex.Cr.
enforcement of those I behavioral restraints would find that the court of requirements law, and to the end that appeals application rehabilita erred its of the tion is achieved. judgment and remand the cause reverse its majority Because the to the trial court. leading From jury’s evidence to the own not, respectfully I dissent. does finding guilt jurors well know that de- engaged fendant in conduct violative of MILLER, J., joins. law, they and learn as much about person cant as a from that criminal conduct light of additional evidence adduced
by parties application on probation they permitted are statu-
tory present. law and rules of evidence to proposed after
4.In its brief the State summarizes the 5. The defendant cannot make bond us, probation arrested for violation. viz: right has no to a 6. The defendant placed probation, 1. After someone is hearing. revocation probation officer conducts an initial interview probationer 7. The can be made to serve out background to collect information on the in- though probation- his entire sentence even dividual. completed probation. er most of 2. The officer then makes recom- probationer generally required 8. mendations to the court. report a month. officer once drug programs 3. There alcohol and probationer placed could be on "in- 9. The part available which could become a of the probationer probation” will tensive where the programs if the court so allows. When, if, required with the to meet probation are the terms of violation, frequently. the court is violated informed probationer pay prosecutor’s could a fee and res- duty mo- 10. The but it is the to file the part of the terms of tion to revoke. titution