*1 judgment of the Court reversing the fact that in the court below and the reversed cause remanded to that majority pretend does not even Court. appeals implicates of the court of Ultimately
reason for review. all it does is ONION, P.J., concurs the result. conclude, contrary to the appeals, court of that the evidence is suffi- CLINTON, Judge, dissenting. cient. That is not a valid reason under our attempted burglary The indictment for Tex.Cr.App. own rules. See Rule 302. alleged habitation amounting as the “act Adhering the view that “review” such as than mere preparation,” to more V.T.C.A. misapprehends assigned this the new role Code, 15.01(a), Penal to this Court constitutional amendment through “reach his hand a screen door of enactment, legislative respectfully the habitation ...” contended dissent. appeals agreed court of that “the beyond evidence at trial fails to show Flournoy
reasonable doubt that reached his through
hand the screen door of the vic-
tim’s mobile home.” Flournoy v. (Tex.App.—Fort majority Now the would find other-
wise. presented complaining The State wit- DUHART, Appellant, Rene Paris appellant and
ness to relate what she saw companion do and she did on the what question, majority opin- occasion and the Texas, Appellee. The STATE of testimony out much her as it ion sets No. 738-83. which, pertinent—in none of how- deems Texas, Appeals of ever, Court of Criminal complainant say that she does En Banc. actually his hand saw “reach 1 Thus, through a screen door.” resolution 15, 1984. Feb. sufficiency depends for the issue interprets part most on how one her “con-
clusory statements that this is what must happened, instead of statements that happen,” Flournoy
she saw
supra, at 525. view, judges my three of the court to, did, fully competent
appeals are record to find that “there was
review the allegation by the proof on this
failure of State, supra. See
State,” Flournoy v. Wil State, 654 S.W.2d 469-470
son v. (Clinton,J., dissenting). Veri
Cr.App.1983) Wilson, taken in policy position
ty of the instant cause in the
supra, is fortified thing.' Conley testified: ‘The screen door also majority relates: 1. The closed, trying to—going ... she then "Conley testified further door, trying get through the screen of the mo- to the front appellant return saw home, trying watching, kept ‘proceeded to un- I was as he main door.... bile hands, moving trying open like moving hands were the door ... his like he was lock trying a screwdriver some- into some- to—like he was door.” [front] get trying thing, like he was
OPINION ONION, Presiding Judge. appeal from a conviction for
This is an habitation, burglary of a by the court at 45 ment was assessed 9, September years’ imprisonment. On appellant entered Adju- offense. court to the said before the deferred and he dication of his was “probation” period for a placed on eight years, subject to certain conditions. 42.12, 3a, July V.A.C.C.P. On See Article petition filed a the State guilt, alleging ceed to probationary con- had violated committing aggravated ditions rob- beries, report failing to to his required, failing pay resti- officer as and tution and fine. court, 10, 1982, September after a
On proceeded petition, State’s adjudge guilt “probation”1 to revoke and burglary for the and assess years’ imprisonment. at 45 habitation 3d(b), article V.A.C.C.P. ap- in a sole of error On pellant the trial court erred contended proceeding and as- holding sessing punishment without first hearing. Appellant ar- separate penalty a violation of gued that such failure was law, Fifth and Fourteenth due Constitution, Amendments, United States I, of the law. Article and due course 19, Texas Constitution. Ap- Court of appeal the Fort Worth
On and affirmed peals rejected his contention Worth, Burns, appel- Fort for Danny D. State, 652 conviction. Duhart v. lant. (Tex.App.Ft.Worth—1983). We S.W.2d824 Atty. Mar- Curry, Dist. and C. Chris Tim petition for discretion- granted appellant’s Grant, H. shall, Eugene Jr. David M. the correctness of ary review to determine Worth, Attys., Fort Asst. Dist. Montague, holding. such Austin, Huttash, Atty., State’s Robert entering guilty plea Upon the State. court, waving carefully by the appellant was admonished sufficient The court found evidence insufficient the evidence court found 1. The aggravated allegation robbery aggravated appellant committed show one, he failed to robbery paragraph paragraph two. pay fine. restitution and report failed to testimony trial court in accordance with Article At the conclusion of the duly Y.A.C.C.P. admon- inquired party anything if either penalty ished that burglary closed further to offer. Both sides years habitation was for a term of presented arguments to the court. After ninety-nine, less than five nor more than revoking “probation” adjudicating *3 life, $10,- and that a fine not to exceed proceeded the to assess might 000.00 also be assessed. See V.T. inquired if ment. When the court there C.A., Code, Penal 30.02 and 12.32. Sees. any legal why sentence should was reason noted, And as the Court of the pronounced, appellant’s counsel an- not be appellant trial if court cautioned the swered, “No, was Your Honor.” Sentence plea bargain eight years’ of deferred imposed. appellant At then no time did accepted “proba- was but present to further evidence on revoked, granted tion” later he would was any ishment or other issue. He made no subject range punishment be to the full of evidence, proffer perfect nor did he of bill charged.2 Appellant for the offense stated object any exception. He did not range penalty understood the procedures nor contend to the trial unitary At the caution offered. on separate hearing court he was entitled to a guilty plea appellant took the witness on judicial and made a confession. At stand accepted the close of the trial the court appeal for the first time he contends On
plea bargain appellant and instructed process that due of law was violated when probationary again as to the condition and not, sponte, the trial court did sua offer appellant cautioned the as to the conse- separate hearing punishment. He him a on quences range of revocation and authority any does not cite punishment possible. then The contention, and even at this late date does accepted eight year adjudica- deferred on not tell us what evidence imposed. any tion which was He did not at present. unable to time ask to offer additional evidence on punishment.3 A similar contention to rejected advanced and Jackson v. petition At the on the State’s (Tex.App.—Beaumont— 119 guilt its evi- adjudicate the State offered ref’d.), 1981) court wrote at (pet. where the Thereafter the testified dence. p. fiancee’. 120: and then called his mother and his 37.07, (Tex.Cr. unitary plea trials. Article were
2.
In McNew v.
Rehearing),
pleas
App.1978) (Opinion
the court at
trials in
of not
for bifurcated
p.
unchanged
guilty
jury.
177 stated:
The rule was
before
jury.
practice
guilty pleas
before the court and
"While it would be far better
State, supra.
as to
court to admonish a defendant
the trial
Morales v.
adjudication,
consequences
37.07,
deferred
we
was amended after its
Article
26.13, V.A.C.C.P.,does
held that Article
now
Section 3 thereof
enactment
1965.
require such admonishment.”
part:
reads in
prior criminal record
"Sec. 3. Evidence of
(Tex.Cr.
S.W.2d 403
Morales v.
3.
guilty.
cases after a
in all criminal
App.1967), this court wrote:
“(a) Regardless
plea
and whether the
obviously
fact that
"Appellant
overlooks the
assessed
or the
be
2(b),
(V.A.C.C.P.),
37.07,
supra
Article
may
the state and
be offered
guilty
only
pleas
before
applicable
of not
as to the
criminal record of
the defense
State, Tex.Cr.App.,
Rojas
jury.
defendant,
general reputation
and his
[(1966)].
application
It has no
by jury
character....”
waives trial
a defendant
applies
pleas
provision
in a
as it
guilty before the Court
This
insofar
enters a
1.13,
capital
jury
case. Articles
felony
guilty
does not call for
less than
before a
1.14,
1.15,
(Emphasis sup-
V.A.C.C.P.”
The statute
trials in those situations.
bifurcated
37.07,
2(a), (b)
Sec.
plied.)
see
Now
applies
pleas
generally
(c)
as amended.
jury.
Criminal Procedure
Code of
to the 1965
Prior
regardless
jury
before the court
all trials
“Appellant’s
ground
years
adjudica-
at ten
of error
confinement after
Court
assessing punish-
erred in
‘[t]he
tion of
when it has assessed seven
ment
Appellant’s
excess of
deferred
years ‘probation’ at the time of the de-
adjudication period
probation by
re-
adjudication.
ferred
This contention has
fusing to
separate hearing
allow for a
rejected and held not to be
error.
following the determination
State, supra;
McNewv.
Walker
guilt.’
As
we understand this
(Tex.Cr.App.1977).”
error, appellant’s
complaint is that a
statute,
that the
We observe
separate punishment hearing should be
V.A.C.C.P.,
3d(b),
does not man
following
held
separate punishment hearing,
date a
nor
pursuant
V.A.C.C.P.,
Art.
can
we conclude that due
of law
3d(b).
ground,
in appel-
as stated
nor the due course of the
law
land is
brief, actually complains
lant’s
separate hearing
violated because such a
*4
‘refusal’ to
separate
allow for such
hear-
not accorded. Fairness
dictate
that
ing.
nothing
We find
in the record be-
a defendant
opportunity
be accorded an
to
indicating
fore us
appellant request-
that
appropriate
mitigation
offer
in
evidence
hearing
ed such
that
such
punishment after the
“proba
revocation of
However,
we refused.
the record does
adjudication
guilt
tion” and the
and be
separate hearing
show that a
fore
the assessment of
if such
by
ment was not held
the court.
already
evidence has not
been elicited dur
“Appellant
following
contends that
an
ing
proceedings, particularly
if the de
adjudication
guilt
original
on the
requests
fendant
opportunity.
charge, a ‘normal
system’
bifurcated trial
should
pun
be followed and a
Under the
in
circumstances
the instant
ishment shall be
accordance with
case, we
held.in
find no merit in
V.A.C.C.P., Art.
37.07.
over
ground of error. The trial court did not err
37.07,
looks
2(b)
the fact that Article
failing,
in
sponte,
separate
sua
to conduct a
applicable only
pleas
guilty
to
proceeding
on the issue of
before
jury.
a
It
application
has no
The
of the Court of
where a
by jury
defendant waives trial
affirmed.
plea
and enters
guilty
before the
court in
felony
capital
less than
case.
MILLER, JJ.,
ODOM and
in
concur
State,
v.
Morales
trial immediately appellant cannot ent continue set proceedings, with ‘all including assess- punishment to a been entitled hear- ment adjudi- if ... as ing, requested if even he had not cation of had not been deferred.” ment and also had failed make McNew, an objection to the failure the trial court Nothing at 174. find rehearing punishment hearing. mili- McNew conduct How- against tates ever, construction of the inter- has no where there been for a twining provisions of statutory the two punishment hearing, objection and no To contrary, closely schemes. when ever properly timely voiced to the lack read, appears page that which at 177 con- hearing, always this will firms it. complaint, cause such a that there was no written, however, hearing, From what has it be without merit. does not follow that is entitled as Rogers State, This Court 640 S.W.2d a matter of to more than what he (Tex.Cr.App.1981), Wright see also system” characterizes “some for State, (Tex.Cr.App.1982), presenting evidence on Re- recently held that the defendant could gardless labeled, posi- of what it is the law complain the first time tively “in affords all criminal cases after a failure of the trial court to hold a second guilty,” “[rjegardless cause, hearing. the trial court had plea” opportunity for both sides to offer conducted on the State’s motion prescribed by 37.07, 3(a). revoke the defendant’s The record here shows and the court of found that the defendant violated his appeals found had that kind of probation, but then deferred the matter. opportunity. Duhart v. later, Much and without second hear- (Tex.App.—Fort ing, objection voiced, to which no Accordingly, I concur in proba- ordered defendant’s the Court. appeal, tion revoked. On the defendant *6 complained of the failure of the trial court TEAGUE, Judge, concurring and dissent- hold and conduct a second be- ing. fore he ordered the defendant’s Duhart, Paris Rene appellant, concedes revoked. This rejected by contention was that at trial he not request a separate Court, majority of expressly which punishment hearing and object also did not held that before the defendant was entitled to the failure of the trial judge to conduct a complain appeal of the lack of a hearing on after the hearing, second necessary it was first adjudicated guilt. His type him to have made “some of due contention, that the failure of the trial objection, cess either at the time the separate punishment court to conduct a probation, continues the and/or or hearing violated the Fifth and Fourteenth at the time of actual at revocation or Amendments the United States Constitu- sentencing. time of Failure to make such tion, I, as Art. well Texas Con- an objection waives error.” stitution, presented rejected appeal. the first time on See Duhart v. princi- Because there is no difference in State, (Tex.App.—Ft. ple Rogers between v. Wright cause, and this simply would hold has majority holds: “Under circum- right waived his to complain case, stances the instant we find no about the hearing, absence appellant’s merit in of error.” either because he did [Emphasis I find one under- Added]. language scored leaves the reader with the because to object failed to the trial impression that, given another but differ- court’s failure to hold one.
Although the Ar majority is correct that 3d(b), V.A.C.C.P.,
ticle does
not mandate separate punishment that a held, must be after the trial court adjudicated
has the defendant’s
nevertheless, had appellant properly and
timely urged in the trial court the com
plaint appeal, he makes on I would hold process
that either due or due course of hearing,
law mandates such
have sustained contention. See
Daniels v. Dissenting Opin
Cr.App.1981) (Teague, J. McDougal
ion), (Teague, (Tex.Cr.App.1981) J. Con
curring Opinion). majority
Because the reaches the
result, I concur. nei- holding To its
ther due course of law nor due timely such a hearing,
mandates when a proper request objection has
made, I dissent. DANIEL,
Larry Ray Appellant, Texas, Appellee.
The STATE of
No. 65357. *7 Texas, of Criminal
Court
En Banc.
Feb. 1984.