Dempsey v. State
496 S.W.2d 49
Tex. Crim. App.
1973
Check Treatment

*1 search by As the admission of the not condoned this court Sills (Cf. warrant, appellant’s objection State, Tex.Cr.App., 119) we note that no er- Thereafter, state when the is sustained. ror shown case since the again ap is jury twenty the introduction verdict returned pellant years. objected and the announced: letting jury “I am not it before the unless error, being no reversible er defendant wants No reversible it.” judgment is affirmed. ror is shown. of “The

Ground error No. states that

charge sufficiently court does not

define the law and as such the jury charged.”

improperly objec

The record reflects that no charge

tion to made nor a re quested charge presented pur Appellant, DEMPSEY, to the court Albert Joe suant Articles 36.14 and Vernon’s Therefore, pre Ann.C.C.P. error Texas, Appellee. The STATE of See, g., State, Tex. served. e. Barrera v. No. 46849. 879; Cr.App., 491 S.W.2d Wood Tex.Cr.App., 771; 486 S.W.2d Golden v. Appeals Texas. Court Criminal State, Tex.Cr.App., 273; Hill State, Tex.Cr.App., 466 S.W.2d 791. Rehearing July 3, Denied

Appellant’s grounds final error two relate improper jury arguments. during

The record reflects

cross-examination of a state’s witness the if asked the witness the officers

had checked the arms people found

at home “track marks”. replied witness had not

then he was asked: “Q. some of- Would

ficer have looked to see if he had track

marks? A. Possibly. of him We knew

not being a user but a seller.”

During argument final jury

prosecutor argued, you “I submit to

this man is a heroin seller.”

having elicited such testimony the of- from

ficer, argument we conclude

reasonable deduction from the evidence. Alejandro

Cf. Tex.Cr.App.,

During closing argument at

punishment phase trial, prosecu jury

tor asked to return a verdict years. Although argument *2 punishment

murder malice. The without yars, imposi- but was assessed at five suspended appel- tion of sentence was probation. granted lant was probation Among conditions of requirement appellánt: that “(a) against Commit no offense or the laws of this State United States.” filed a mo- State appellant’s alleg- probation tion to revoke appellant, ing that the 19th “on about March, 1972, County, in Harris Texas, legally then and a re- there as tail business establishment an invitee licensee, in said establish- while ment, did then and there from their remove place establishment, in said merchandise of dollars, fifty the value of less than being kept, was then and there stored and establishment, for displayed sale said fraudulently with the intent take said property and deprive appro- and to the value the same priate use and benefit Dempsey.” of the said Albert Joe 2, 1972, hearing was held on On June proba- appellant’s State’s motion tion, after the and the record reflects that motion, entered read Immediately plea after the of untrue. urged entered, appellant orally quashed, and be denied or Houston, replead ap- in that Rogers, Jr., be caused to the State Donald W. to state which revoke failed pellant. particular retail establishment Vance, Atty., C. Dist. Carol S. James alleged to have County Tobias, Dist. Andy Asst. Brough and partic- in, did not and that been Vollers, Houston, D. Attys., Jim what merchandise ularize Huttash, Atty., A. Asst. Robert have alleged taken. Austin, Atty., for the State. State, Tex.Cr.App., 456 OPINION “timely defendant hearing to the a motion to DAVIS, Commissioner. alleging such motion revocation motion revoking an Appeal is taken from order V.A.C.C.P., comply with Article probation. ‘in alleged and did not set out the intelligible that he would be words’ so 1969,appellant pleaded On November prised just supposedly had violated how he court to the offense guilty before the supplied) probationer probation.” (emphasis and his the date attorney until Campbell, to revoke Theft, “That has violated alleged, Felony Defendant “Committed the offense (b) proba- following subsequent being placed probation.” conditions of said (b) injurious

tion in that avoid or vicious hearing, Prior *3 pointed allegations felony habits.” out “vague, general theft were and indefinite” case, court, in As in the instant the trial required requested and to State be Campbell, quash. overruled the motion to orally amend. The then announced State Campbell, this the trial Court held that they hoped prove a fraudulent transac- to require court’s failure to more to land, giv- involving tion real estate sales of specifically allege defendant had vio- how party, injured and the name of proba- probation revoking lated his before April in stated that the offense “occurred tion constituted an of discretion. abuse 1971, and, course, May in of 1971.” case, pre- stated he was not appellant In the instant Probationer then contends pared against such that to defend new the court abused its discretion in de- complex involving tions real estate transac- nying support his motion in thereof concluded, agree supra, cites tions. This Court “We and the fol- the rudiments of lowing cases which was denied we find to be distin- guishable give him ade- process due the failure from the instant case. to Pollard v. 39, 449, to quate to enable him 172 Tex.Cr.R. notice 353 S.W.2d prepare This noted unlike the instant case in his defense.” Court that under general pass upon validity of the allegation petition that it did in for revoca- not amendment, “probationer nor the suffi- might upon tion “oral be called no allegations.” There are any ciency meet of the violation at time governing when mo- during years statutory provisions the three proba- he was on insufficiency tion.” tion directed to filed, probation must be pleading revoke Tex.Cr.App., 473 S. take, nor shall form such motion or what 40, this W.2d Court found “the motion determining in guidance statutory is there allege revoke not facts would Thus, pleading. our sufficiency of the necessarily constitute a of the upon whether be based determination must law.” abused its discretion the trial court overruling motion. See Cannon In Burkett Tex.Cr.App., 485 S. 317; State, Tex.Cr.App., 479 578, W.2d pro- State’s motion to revoke State, Tex.Cr.App., 467 S.W.2d Barnes v. only alleged, bation “That on or about Oc- State, Tex.Cr.App., 412 437; Manning v. 7, 1971, tober and October the de- paragraphs fendant (b) violated (a), of his (c) Conditions of Probation.” Be- to revoke In the announcing at the ready hearing, the fore 28, probation 1972. was filed on presented to the trial appel- represent appointed Counsel was court a excepting motion in writing 27, Hearing on April lant allegations State’s motion to revoke 2, held on motion to revoke was probation. This Court held the trial indicate that nothing overruling probationer’s court’s action copy not have and his counsel did motion and not requiring the State to at the time of counsel’s pleadings amend the constituted an abuse thirty days before appointment more than of discretion. statutory period hearing. There is no mo- copy of the State’s regarding when 367, In Kuenstler v. but upon probationer, tion shall be served the revocation motion was not served 169, prior to the pointed more than a month 267 S. Gist v. motion directed to hearing this held that the trial W.2d Court voiced until pleading to revoke was judge did not abuse discretion plea. Then after had entered his days aft ducting five orally. objection was made Under filing er the motion. See circumstances, foregoing we decline State, supra. Kuenstler v. hold abused its discretion the court deny or overruling appellant’s motion to allegations in a motion While revoke. the State’s motion to strictly com to revoke need indictment, requirements ply with the of an the trial contends State, Tex.Cr.App., 456 S.W. Gonzales v. revoking pro abused discretion fully probation 2d it should inform the *4 bation in that the evidence was insufficient er so that he and his will know prove appellant committed the of what he will be called to defend shoplifting. fense of State, Tex.Cr.App., against. Wilcox the In the instant Appellant urges that the meat market appel alleged that motion to revoke manager not, could store with cer- shoplift had offense of lant committed the tainty, state that the meat to have March, 1972, in day on the 19th of been taken came from his store. containing all County, said motion Gordon, employee William an of Stan- 1436e, of the Art. the elements of offense. ley-Smith Security, testified that he was Forms, V.A.P.C., See Willson’s Criminal working Safeway at a Store at 7510 Bel- Edition, Only the store Seventh Sec. 1979. fort, Houston, on March when alleged shoplifting the occurred which appellant adjusting something he observed un merchandise designation and the Upon approaching appel- inside his shirt. fifty value dollars which der the lant, said, Gordon stated that objection voiced The taken were omitted. “Man, and, I’ll you,” come clean with in in the motion to revoke Appellant “Here it is.” then handed Gor- until after stant case did not come strip packages don two of New York day of the its motion on the State had read Appellant steaks. was taken to the back of appellant had entered and store, Williams, Harvey meat mar- Appellant then noted of untrue. manager, ket was called. then “prior being he desired to witnesses called” packages removed two of New York more an and dictated object strip pants. steaks of his from front deny or the State’s oral The price by total of the meat as reflected appellant’s oral motion motion.1 After price tags packages affixed to the overruled, continuance request for Appellant had less than five dol- $17.24. request by such a made nor was lars person. on his testified that Williams prior to that time. made placed the steaks were still and were cold examination, back in stock. direct motion to revoke On the State’s While desired, Williams stated that he was able to estab- it contains something leaves to be lish that the steaks taken from the shoplift- were alleged offense of the date of the cross-examination, question. store in it alleged of- county in which the ing in the developed based this that Williams occurred, recites that the value fense conclusion on steaks were fifty dollars the fact that the was under merchandise taken cold, “packaged package just of the of- like we our elements and sets forth all the tags packages Safeway meat.” The had been Appellant’s counsel fense. provisions under of Art. Ver 1. All motions an indictment to set aside special pleas non’s information and all Ann.C.C.P. writing exceptions required are to be in tags reflected that the meat had “. . . on or about the 19th weighed been on March, Hobart scales. Of the in Harris County, Texas fifteen Houston, Safeway stores then Wil- and there was legally in a retail liams stated only he knew of three of the business establishment as an invitee and stores that use Hobart scales and licensee, and while said establishment scales, stores used Toledo which did then and there remove from their make a different type label tag go place merchandise, said establishment the meat packages. of the value dollars, less than fifty which was then being kept, and there We find foregoing evidence suffi- displayed stored and sale said es- support cient to finding of the trial tablishment, with the intent to fraudu- violated lently property deprive take said by committing of shoplifting. offense the value of being appropriate and to no abuse the same to use discretion shown in said revoking probation, benefit of the ALBERT judgment JOE is affirmed. DEMPSEY.” pleadings by defects in such

Opinion approved Court. charge the offense of shoplifting are The motion is obvious. *5 general couched in give terms as to ONION, Presiding Judge (dissenting). the of what no notice retail es- populous County tablishment vigor my I dissent with all the at com- involved, nor was he even informed of the mand. general type of retail establishment the owner, type name of the or the mer- repeatedly has held This court that while Further, allegation allegations the chandise. the “on or in a to need revoke strictly March, not about the 19th comply requirements the 1972” with proceed- not bind the in a revocation indictment, of an fully should inform ing long to that date in its so as the the so that he and his counsel probationary proved date the will is within upon know what be he will called to State, Rogers State, term. See 169 Tex.Cr.R. against. defend v. Wilcox v. 477 S. 239, (1960). 333 S.W.2d 383 (Tex.Cr.App.1972); Campbell W.2d 900 v. State, (Tex.Cr.App.1970). 4S6 S.W.2d 918 way was motion in no sufficient to Such Where the basis of revocation is a the vio prepare appellant to a defense enable the law,

lation penal “allegations of a the must subpoe- witnesses to or to determine what give fair allege notice and should a viola na. State, tion of the law.” v. 473 S. Jansson 2, 1972, hearing was conduct- 40, (Tex.Cr.App.1971). W.2d 42 See also question. ed as soon on the motion State, (Tex.Cr. Gamble 484 S.W.2d 713 v. Just motion, ap- as aloud its the State had read App.1972). And, when the motion fails to pellant’s court-appointed entered fully probationer, he is de so inform the appellant, and in plea of “untrue” for process. nied the due Kuen rudiments of immediately called same sentence (Tex.Cr. stler v. 486 367 S.W.2d to the deficiencies Brewer, trial court’s attention Morrissey App.1972). v. See also court he informed the the motion and 471, 2593, 484 408 92 33 L.Ed.2d U.S. S.Ct. any defense for the prepare 778, unable to (1972); Gagnon Scarpelli, 411 U.S. was, effect, pellant. The motion over- 1756, (1973). 656 93 36 L.Ed.2d S.Ct. testimony was ordered com- ruled and the to hearing, the instant case the State’s At conclusion menced. al- again 1972 revoke over- was renewed leged ruled.

54 Campbell relies majority’s artificial Clearly the efforts supra; Pollard v. distinguish cases are success- to these not (1962); 353 S.W.2d 449 ful. (Tex.Cr.App.1971); Bur- S.W.2d (Tex.Cr. kett distinguished sought is be to App.1972), 486 S. merely and Kuenstler quash because the motion Cr.App. 1972). au (Tex. These prior W.2d 367 “timely filed revocation motion was clearly support appellant’s position thorities hearing.” to the Burkett was to be and call reversal. distinguished there written mo- because tion to be- was filed and Kuenstler however, majority, struggles mighti- “prior hearing” cause the accused but, cases, ly my distinguish these “vague, general as question raised the opinion, fails. allegations. and indefinite” is noth- In Pollard Jansson there holding that a motion to Without written opinions in the to indicate when absolutely is re quash a challenge what form to the motion “objec quired, majority holds Therefore, majority at- took.1 timely it tion” was not because came after tempts distinguish solely by these cases plea and the the State read motion simply saying allegations there were As of “untrue” was entered. earlier ob general than instant case or more served, quash was the oral motion to necessarily charge violation of as tained in the same sentence degree. This merely law. a matter “untrue” allegations While the in Pollard were more any witness testified.2 before general in the than properly tions here still did not inform nothing this record show against. he had to what defend copy if a of the revocation motion was what retail establishment He was not told *6 his coun- or ever served was, or or involved who knowledge that any sel involved, type what of merchandise was the same was defective before and, in view of the “on or about” open court. was read date, tion as to was free cause narrow, majority to For draw these proof shoplifting viola- him to meet shallow, technical, and unrealistic distinc- very placed tion from time he on require- attempt to avoid the tions in an probation. Further, my opinion, al- wrong. process case is in this ments of due legations “not in the motion to necessarily allege which facts would con- stated, For I dissent. the reasons just as the stitute violation the law” same allegations in failed to do the ROBERTS, joins in this dissent.

thing. J., saying actually majority that a Pollard x-eversed another effect passing calling ground attention called the trial court’s pleading. An defective attention to fatal defects entered and of the record that cause at the time the examination taking testimony or other is the same as not reveal motion to the raising sufficiency challenge question the revocation motion. (Tex. appeal. S.W.2d 317 time on Horman 423 the motion for first v. supra; Cr.App.1968), plead Vance this court held See Burkett (Tex.Cr.App. ings examination defective. An 485 580 S.W.2d ; challenge 1972) revo Kinard i-ecord reveals may argued, ; (Tex.Cr.App.1972) be Wilcox motion. It well cation (Tex.Cr.App.1972), however, be that Horman was reversed fails to cause the show Guinn (1956). probationary penal S.W.2d 583 law dition.