*1 a complex by individually examining a short At the vacuum time. test disappeared thirty Butler to tem- stop, third defendant each factor which relied porarily Maj. Op. detain at-. minutes. The officer observed the defendant vehicle, factors, justified from something together, return to his when taken remove These pocket place his order appellant’s temporary and floorboard detention in carry- the vehicle. The defendant was also investigate anticipated breach of Butler ing newspaper Terry and a canned soft peace drink the situation in was which he not had Ohio, had before. The defendant S.Ct. L.Ed.2d 392 U.S. over, pulled (1968). addition, was from the car at removed appellant’s walking In gunpoint A and taken to the back of the car. away, when other fac- considered knife, jewelry search of car tors, revealed tempo- justifying a circumstance his and coins. Court held that the did detention; facts rary present case this does not burglary place, not indicate that a had taken only situtation where the reason Butler de- they any nor did that the defendant in show tained was because way burglary possessed or had committed away ques- attempted when Butler walked property presence police Added). stolen (Emphasis him. I would af- tion officers. The conviction re- defendant’s was judgment Appeals; firm the of the Court of versed. not, majority does I dissent. because
Clearly, Hoag the facts of are far more suspicious MEYERS, JJ., join than the facts sub WHITE and this judice. any Appellant suspected was not dissent.
particular crime. was not followed any police Appel- of time. nothing suspicious lant did walk other than away, suspi- which we have not a Furthermore, police Hoag
cious act. was, knew who defendant knew what of, crime been he had accused and knew prior the defendant had a conviction for that But, case, even in nothing crime. Eugene CHAUNCEY, Appellant, Ronald did suspicious to a amounted enough justify action his detention. Much then, given less the innocuous actions in Texas, Appellee. The STATE of ease, pellant’s appellant’s can detention be justified. No. 1213-92. case, appellant’s the instant detention Texas, suspicion on no based reasonable En Banc. stop. illegal therefore anwas The trial court denying
therefore abused its discretion May suppress. judg- motion to ment of Court of reversed
the case remanded proceedings
further inconsistent with opinion.
CLINTON, J., in the result. concurs BAIRD, not participating. MeCORMICK, Presiding Judge, dissenting. majority opinion mis- dissent because applies “totality of the circumstances”
306
punishment in the at two county jail, probated eight years. for Tex. —1(e)(2)(Vernon art. 6701Z Rev.Civ.Stat.Ann. Supp.1992). Eighth The District Court of Chauncey State affirmed. 837 1992). (Tex.App. Paso - El granted appellant’s discretionary (1) jail review to determine whether and dual restitution center terms are invalid condi 18(a) § article tions of under 42.12 (2) Procedure, of the Code of and whether imposed imprison the maximum exceed ment term for the under allowable offense § of Criminal .Code Procedure.1
I. probation, appellant As conditions of his jail days in
was to serve 180 followed in a three to twelve months restitution cen- appeal, appellant complained ter. On that express language article 42.12 prevents of the Code of Criminal Procedure Midland, Morgan, Thomas S. court imposition jail time in and a of both pointed, pro- as restitution center term conditions Baker, Schorre, Atty. Al Dist. W. & Jan Appeals disagreed, bation. Court Midland, Huttash, Atty., Asst. Dist. Robert Legis- in order to further the that Austin, Atty., State’s for the State. authority purpose granting lature’s broad setting proba- to trial courts in conditions of Before the court en banc. may impose a trial conditions of probation, prison term time in a both a and OPINION ON APPELLANT’S PETITION restitution center.2 Id. at 183. FOR DISCRETIONARY REVIEW jail appellant argues that Before MALONEY, Judge. mutually restitution terms and center are Appellant felony driving was convicted of probation pursuant to exclusive conditions of 18(a)3 intoxicated, while and the trial court assessed article unusual, argued appellant ing punishment we do 1.We note that his sentence cruel and and that infirm, statutorily and that it violated also believe a Constitutional not that violation process rights rights against However, his due cruel shown in this case. punishment. and unusual purpose of the adult stat- 2. The authority argument and cited no place wholly within the courts of ute is "to State process his due claim under either the Texas or jurisdiction responsibility appropriate for de- Furthermore, the United States Constitutions. termining conditions ... authority claim under cited no for his existing [and] ... remove from statutes regarding article 1 Texas 13 of the Constitution have acted as barriers to limitations ... right against punishment. his cruel and unusual systems probations public in- effective support argument of his that his sentence terest.” TexCode Crim.Proc.Ann. under constituted cruel unusual (Vernon Supp.1992). eighth Con- amendment to United States stitution, appellant had asserted that there never argues that because article 42.12 also imposing prison been a and resti- sentence dual exclusively with 13 deals conditions tution terms as a center condition condi- tion in DWI cases but does not include a Helm, for DWI conviction. Solem v. U.S. terms, prison tion of dual center and restitution (1983) S.Ct. L.Ed.2d should be deemed invalid. that such However, condition (standing proposition a critical factor does DWI while section 13 conditions, deal with determining whether sentence is cruel and purport not it does unusual such a sentence whether options jurisdic- an list of imposed vide exhaustive has been tions). However, in the same or other only deem- this is one factor in court. days restitution “an of 180 in the center alternative lant’s term imprisonment.” agrees The State imposed county jail was not alternative Court of that in order to effectuate probation, a condition there- rather as policy behind article of. jail and restitution center terms should *3 parties Ap Both and the Court of mutually be deemed of exclusive conditions peals failed to make the distinction be have 18(a) probation and that section should be im imprisonment sentence of tween a interpreted center provide to restitution as a prisonment imposed that is condition of impris- term as an alternative to “continued” probation. They the term “im have viewed onment. 18(a) prisonment” as utilized in section as conviction, At the time of arti- any referring imprisonment, impris to even 18(a) § provided, cle 42.12 imposed probation onment as a condition of judge places probation If a a defendant on contrary than as a This is rather sentence. any provision under of as an this article reading provision. to of It plain the makes imprisonment, judge alternative to the 18(a) applicable to read section as sense may require probation condition of placed probation a defendant is on when that the serve a term of not less imprisonment to alternative which is im than three months or more than 12 months posed probation.6 aas condition We hold of in a restitution center ... 18(a) preclude impo that section does not 18(a) § Tex.Code Crim.PROC.Ann. art. 42.12 center, together time in a sition of restitution (Vernon added). Supp.1992) (emphasis This jail imposed with time which was as a condi applies “probation section when [is awarded] probation. tion of imprisonment”.5 as an Appel- alternative to lant was to sentenced two II. jail, county suspend- that sentence was complained appeal also on of probation; ed and he was awarded accord- ingly, probationary period, arguing “place[d] of his probation on ... prohibits fixing § as an to” the of 42.12 alternative that article 3 of a Appel- sentence of probation statutory two confinement. term that of exceeds 1(e)(2), offenses”). 4.Although article under which See also Jenkins v. 615 S.W.2d 6701/— pellant charged, "imprison- (Tex.Crim.App.1981)(noting uses the that defen- ment” in connection in the dant convicted under 6701Z-1 was not article "imprisonment jail”). penitentiary state and the term sentenced to "confinement” county jail, connection with detention in the probation Chapter statute contained in 42 the might appear it 5. While to redundant to refer be Code of Criminal Procedure does not make that probation imposed "as an to that is alternative to instance, § distinction. For imprisonment”, we note that in case of shock appellant's vided at of the time that sentence probation, up days to defendant serves may require "the court a[in case] misdemeanor suspended before his sentence his sentence probation as a condition of that the defendant probation awarded. TexCode Crim.Proc.Ann. period county jail submit to a case, of detention in a or § 6. In that a defendant is art. 42.12 community facility corrections to serve term of probation placed impris- on as an alternative to imprisonment, [and] [i]n a case the placed probation but onment on in addition to may require aas condition of portion impris- of a sentence of service period where, that the to a defendant submit of detention onment. differs from the here, county jail imprison- in a serve a imprison- the execution of the sentence of suspended, imprisonment imposed art. 42.12 but ment is ment_” Tex.Code Crim.Proc.Ann. (Vernon probation. Supp.1992). While some Code as a condition TexCode Crim.Proc. provisions to make Ann. art. 42.12 do seem such a distinction terminology, Compare do not. others TexCode (referring art. 42.03 to a de- Crim.Proc.Ann. convey for section the mean- In order "imprisonment fendant the De- sentenced ing urges, provide it would have to that partment jail”) of Corrections" and "time in judge places "[i]f a defendant (Vernon Supp.1992) with any provision of this article and the condi- TexCode Crim.Proc.Ann. under (Vernon Supp.1992) (providing 42.08 impris- a term tions do not include onment, judge may require....” "cumulative cases sentences misdemeanor This mean- impris- meaning provi- period ing plain shall not exceed the maximum is far from the jail applicable onment in to the misdemeanor sion. by this sec- Except as otherwise allowable for the offense. sentence punish- where the holding that the in all cases disagreed, may fix in this since the Court court did not err ment is assessed trial period that the 42.12 article regard to may fixed “without be in no the term of long as so assessed” the term probation be event
it does not exceed
years or less than
than 10
for the offense
Court,7 appellant
petition
In his
before
was convicted.
which the defendant
(Tex.
Jaynes v.
cites
that a
in which we stated
Crim.App.1984),
Tex.Code
CRIM.PROCANN.
imposed which
may not be
(Vernon
nothing in the
Supp.1992).
seeWe
*4
statu
maximum sentence
greater
than the
which limits the
language of section 3
plain
offense.
torily allowable for the
court,
proba-
assessing the term of
trial
in
term of
the maximum
contends that because
the
does not exceed
to a term that
offense is five
allowable for his
imprisonment
imprisonment statuto-
of
maximum sentence
cannot exceed
probationary term
years, his
only limi-
offense. The
rily allowable for the
State,
agreement
in
with the
years. The
five
the term
in
3 is that
appearing
section
tation
eight
the
Appeals, contends
of
Court
greater
“be
than
probation shall not
of
under article
year probationary term is valid
prescribed
years or less than the
can fix
that a court
3 which
the defendant
offense for which
for the
regard to the
period
of
without
a
intended to
legislature
Had the
convicted.”
long as the
so
punishment assessed
term of
might be as-
limit
term that
otherwise
ten
period does not exceed
probationary
sessed,
provided.8 Accord-
it could have so
years.
of
did
hold that the Court
ingly, we
trial court
concluding that
conviction,
in
not err
appellant’s
of
At the time
of
probationary
a
term
properly assessed
provided,
in
misde-
ground
that the term of
appellant urged
in his
this
We note that
7.
review,
term
although
the maximum
of
discretionary
was limited to
meanor
review,
In
address
for
the offense.
granted
failed to
confinement allowable
we
its
applied
We have considered
Jaynes,
in his later brief.
we
“the same
appellant's petition with
arguments
Jaynes,
set forth in
How-
probations."
tence allowable DWI five problematic area addressed Following Jaynes’ Jaynes, judgment aid, stop conviction for failure to and render affirmed. 6701d, §§ 38 and Tex.Rev.Civ.Stat.Ann. judge punishment at assessed BAIRD, Judge, dissenting. confinement, peri- eight years probated for holding Jaynes Jaynes our con- Believing eight years. appeal, od of On assessing (Tex.Cr.App.1984), correctly judge tended the trial erred interpreted Tex.Code Crim.Proe.Ann. art. of the maximum term of excess 42.12, limiting offense, proba- 3 as five tionary Eight holding: to the term judges agreed, maximum of con- this Court law, dissent finement to Part ... Although Article Section majority opinion. II of the V.A.C.C.P., proba- imposition of allows
tionary to the long I. years, tionary term is than trial, At the time of Tex.Code impo- we it does believe that not allow Crim.Proc.Ann. *5 probationary term excess sition in allow- maximum of confinement Except provided by as otherwise able offense.2 section, felony all pun- in where the cases Id., at (citing Pedraza v. S.W.2d may assessed fix ishment is the Court State, (Tex.Cr.App.1978)).3 S.W.2d 98, Compare, Bridges v. 664 S.W.2d in term of 100 (Tex.Cr.App.1984). may event be case, appellant In the convict- instant was years than 10 or less than the driving ed offense of while for the offense for two intoxicated and sentenced to which the defendant was convicted.... confinement, eight probated years. Tex. 1(e). However, 42.12, Generally, application Rev.Civ.Stat.Ann. art. of art. 3 is 6701Z— 6701Z~l(e)(2) because, art. maximum problematic majori- for the vast felonies, years. ty term of confinement of five There- maximum fore, holding Jaynes, our punishment range tion consistent with in falls within of all However, probation may not exceed three classes felonies.1 42.12, years. 202. plication Jaynes, art. five 673 S.W.2d at proble- 3 becomes matic for those rare the maxi- felonies where III. mum than confinement is less e.g., majority’s re-interpretation art. of art. 42.- See Tex.Rev.Civ.Stat.Ann. (failure 12, aid); stop 6701d in conflict decision and render 3 is direct with our intoxicated); and, (driving Jaynes, 6701Z-1 while 198. The doctrine 673 S.W.2d recording set- (reproduction of sound stare decisis commands that we follow consent). of com- questions sale without owner’s tled of law the absence Cr.App.1978), pe Similarly, 1. Tex.Code Crim.Proe.Ann. art. art. which addressed the maximum specifically provides probation in the the misde riod of context of at a be set maximum two for those statute, meanor Tex.Code Crim.Proc. third-degree punished by felonies which are majority suggests § 3. While the Ann. art. year one maximum of a commu- holding misreading Jaynes our resulted from a See, nity correctional institution. Tex.Penal statute, 308, pg. applicable majority op. at 12.34(a)(2). Code Ann. although specifically Jaynes we noted statute, a different involved Pedraza supplied emphasis All unless otherwise indi- reasoning equally persuasive cated. Jaynes, probation. at 202. 673 S.W.2d Jaynes, we relied (Tex. 259-260 Pedraza parte them, see, Ex reject pelling reasons to
Porter, (Tex.Cr.App. dissenting op.), and cases
1992) (Baird, majority provides no therein. The cited reject Jaynes. Conse compelling reason to governed by our quently, the instant case is Jaynes majority’s abrupt holding and the holding is “disavowal” of that unwarranted. Majority op. pg. n. 8. comments, respectfully dis- these With sent. CUNNINGHAM,
Thurman Victor Appellant, Texas, Appellee. The STATE of No. 234-93. Belton, Hurley, Troy C. Texas, *6 Eads, Atty. (Cappy) Dist. Arthur C. En Banc. Belton, Russell, Atty., T. Asst. Dist. James Austin, Huttash, Atty., Robert State’s May State. the court en banc. Before PETITION ON APPELLANT’S OPINION REVIEW FOR DISCRETIONARY MALONEY, Judge. guilty of murder. jury
A found punishment at con court assessed The trial Appeals af The Court of finement for life. State, Cunningham v. firmed. 1993). granted (Tex.App. - Austin discretionary review the Court of to determine whether finding proper standard applied a against penal interest were statements sufficiently so as to be admissi corroborated 803(24). ble under Tex.R.CRIm.Evid. 3, 1991, appel- night of December On party hosted and the victim attended lant in Killeen. Low- at a motel by Eric Lowman pur- motel rooms for had rented two man night Low- party. Later that poses of the