Ex parte Robert Louis FELDMAN
No. 62952
Court of Criminal Appeals of Texas, En Banc
Feb. 6, 1980
ROBERTS, Judge.
ROBERTS, Judge.
This is an appeal from a conviction for the offense of credit card abuse.
Appellant‘s court-appointed counsel has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit.
In reviewing the record we have, however, found fundamental error which requires our review in the interest of justice.
The original indictment charging the appellant with the offense of credit card abuse alleges in pertinent part that the appellant:
“On or about January 17, 1978, did then and there unlawfully with intent to fraudulently obtain property and services, present to Jamie Martinez a Montgomery Ward credit card owned by Richard Walton Janeke, hereafter styled the Complainant, without the effective consent of the Complainant, knowing that the credit card had not been issued to the Defendant.”
This indictment appears to have been drawn under the provisions of
“A person commits an offense if:
(1) with the intent to obtain property and services fraudulently, he presents or uses a credit card with knowledge that:
(A) The card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder;
”
In Ex parte Walters, 566 S.W.2d 622 (Tex.Cr.App.1978) this Court held that the essential elements of credit card abuse under
The judgment is reversed and the prosecution under this indictment ordered dismissed.
Robert Huttash, State‘s Atty., Austin, for the State.
DOUGLAS, Judge.
This cause involves an application for a writ of habeas corpus filed pursuant to
Feldman pled guilty on October 15, 1976, to burglary of a building. The court assessed punishment at three years, probated.
On December 8, 1977, he pled “true” to violations of two conditions of probation: that he “commit no offense against the laws of the State of Texas;” and “that he report monthly to his probation officer.” He also testified that he violated these provisions.
The court, after finding that Feldman had violated the terms of his probation, passed the hearing generally. The hearing was re-convened on July 25, 1978, and probation was revoked.
Feldman now contends that the court erred in passing the hearing and revoking at a later date.
Upon a finding of “true” to any allegation of violation of probation, the court has three choices. It can, in its sole discretion, immediately revoke probation. Wise v. State, 477 S.W.2d 578 (Tex.Cr.App.1972). It can choose instead to continue probation, but if it does, then no further action may be taken based upon the violations already before the court. Wallace v. State, 575 S.W.2d 512 (Tex.Cr.App.1979); Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976). Or, it can continue the hearing, Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978), keeping before it the violations already proven and permitting the careful consideration of mitigating or exacerbating circumstances, including the subsequent conduct of the probationer, before making a final decision whether to revoke.
The dissent considers use of the third course a violation of petitioner‘s due process rights, because the court retains the power to revoke solely in its discretion, rather than requiring a formal evidentiary hearing
A probation violator, if faced with a choice between immediate revocation and imprisonment and the postponement of final action, would in practically all cases choose the delay. He would consider himself to be “getting a break.”
The instant case bears this out. The record is devoid of any indication that Feldman objected to the passing of the hearing. Nor is any motion on record seeking a speedy re-convening of the proceedings. It appears that Feldman, like the court, believed a continuance before the exercise of the court‘s discretion in deciding whether to revoke probation to be in his own best interests. We agree.
The relief sought is denied.
ONION, Presiding Judge, dissenting.
These proceedings involve a post-conviction application for writ of habeas corpus brought under the provisions of
Petitioner was convicted of burglary of a building on September 4, 1976, and his punishment was assessed at three (3) years, probated. Subsequently his probation was revoked on July 25, 1978 after his plea of “true” to the allegations in an amended revocation motion and his judicial confession. Sentence was imposed and notice of appeal was given. On appeal from the order revoking probation, appellant‘s sole contention was that the burglary indictment of the original or underlying conviction was fundamentally defective. For authority to raise such contention on appeal from a revocation order, he cited Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975), and Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972). His contention was considered and overruled. See Feldman v. State, 576 S.W.2d 402 (Tex. Cr. App.1979).
In post-conviction habeas corpus proceedings, the appellant now contends the district court was without authority to revoke probation when it did under the circumstances of the case. The circumstances are somewhat unusual. At the revocation hearing on December 8, 1977, after the appellant pleaded “true” to the allegations of the revocation and made a judicial confession and after both sides apparently rested and closed, the record reflects:
“THE COURT: On the hearing on the motion to revoke probation, arraignment being waived and a plea of true to the motion, the evidence being presented, court finds the defendant has violated condition A and D, of the probation terms.
“This hearing is passed generally.”
The docket sheet contains the notation:
“Dec 8 1977 Hearing on motion to revoke probation. Arraignment waived. Plea of true to motion. Evidence presented. Court finds that the Defendant has violated (a) and (d) of probation terms.
“Hearing passed generally—capias withdrawn.”
On the same date (December 8th), a written order revoking probation was filed. It does not appear to have been signed by the trial judge until July 13, 1978. On July 14, 1978, a report of probation violation was filed with the court reflecting that the appellant had been arrested on July 13 and charged with passing a forged prescription. On the same date a capias was issued for appellant‘s arrest signed by the trial judge.
On July 25, 1978, about seven and one-half months after the revocation hearing, the appellant was brought before the court again and the trial judge recalled to him that on December 8, 1977 the court had found he had violated his conditions of probation. The record then reflects:
“THE COURT:—
“Now I am taking up the remainder of that hearing and finishing that very same hearing, and bringing that hearing to a conclusion at this time.
“The order heretofore entered in this cause, suspending the imposition of sentence and granting probation, is hereby revoked.”
Sentence was imposed and notice of appeal was given.
Appellant argues that he was continued on probation on December 8, 1977, and that subsequently on July 25, 1978, without either a new motion to revoke or hearing his probation was revoked. He relies upon Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976); Wallace v. State, 575 S.W.2d 512 (Tex.Cr.App.1979); and Furrh v. State, 582 S.W.2d 824 (Tex.Cr.App.1979).
“If the defendant has not been released on bail, on motion by the defendant the court shall cause the defendant to be brought before it for a hearing within 20 days of filing of said motion, and after a hearing without a jury, may either continue, modify, or revoke the probation. . . . If probation is revoked, the court may proceed to dispose of the case as if there had been no probation . . .” (Emphasis supplied.)
In Wester, Wallace and Furrh, the question presented was whether a trial court following a revocation hearing may continue a defendant on probation (although there is an adequate basis for revocation at the time) and then subsequently upon report of another violation of probation revoke probation without motion by the State and without a hearing and base the revocation upon the grounds shown at the earlier hearing. In these cases it was concluded that a court could not take such action.1
That is exactly what occurred in the instant case, and Wester, Wallace and Furrh should here control.
In Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978), after the revocation hearing and finding the allegations in the revocation motion to be true, the court expressly took the matter under advisement, releasing the defendant and then subsequently revoked probation after a new revocation motion had been filed alleging a violation of probationary conditions since the revocation hearing. The majority relies upon Traylor, and although I was the author of the panel opinion in Traylor, I would not hesitate to overrule Traylor if it can be used to justify the procedure here utilized.
The statute makes clear that the trial court, after a revocation hearing, may continue, modify or revoke probation. The court in the instant case did not revoke probation at the hearing on December 8, 1977, despite a revocation order being filed. The court did not modify the conditions of probation, but in effect continued the appellant on probation. The evidence was presented, the hearing was concluded, and the court made its findings as to the probationary violations. There were no reports to be awaited, no tests to be conducted on the appellant, etc. Although the hearing had been concluded, the court passed the concluded hearing generally, withdrew the capias, and released the appellant back into the community subject again to the probationary conditions. The court in effect continued the appellant just as if an order continuing the appellant on probation had been entered. While a trial judge may take a revocation matter under advisement, the guise of advisement may not be used to hold in abeyance a revocation until a report of a new probationary violation is made and accomplish what Wester, Wallace and Furrh condemn. See Stanfield v. State, 588 S.W.2d 945 (Tex.Cr.App.1979) (Dissenting Opinion).
ROBERTS, PHILLIPS and CLINTON, JJ., join in this dissent.
Tommy Earl SCOTT, Appellant, v. The STATE of Texas, Appellee.
No. 55659.
Court of Criminal Appeals of Texas, En Banc.
Feb. 6, 1980.
ONION, Presiding Judge.
Phil Brown, on appeal only, Lubbock, for appellant. Marvin F. Marshall, Dist. Atty., Plainview, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON APPELLANT‘S MOTION FOR REHEARING
ONION, Presiding Judge.
Our prior opinion is withdrawn. This is an appeal from a murder conviction, where the jury had assessed punishment at fifty (50) years’ imprisonment.
Appellant now urges that this Court consider his contention raised for the first time on rehearing that the court‘s charge at the guilt stage of the proceedings was fundamentally defective in that it authorized conviction upon a theory not charged in the indictment. He contends this matter should be considered as unassigned error “in the interest of justice.” See
“(a) A person commits an offense if he:
“(1) intentionally or knowingly causes the death of an individual;
“(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
“(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
“(b) An offense under this section is a felony of the first degree.”
The one-count indictment, omitting the formal parts, alleges the appellant on or about June 11, 1976 “did then and there unlawfully knowingly and intentionally cause the death of an individual, Edward Glenn Owens, by shooting him with a gun”
The indictment charged the offense of murder under the theory of
Notes
“. . . it follows that when a revocation proceeding had been had and the defendant continued on probation in the discretion of the court (although there was an adequate basis for revocation demonstrated at the hearing), the continuation cannot subsequently be arbitrarily withdrawn at the whim of the trial court or upon mere fact of arrest. To hold otherwise would violate due process, due course of the law of the land and fundamental fairness.”