*1 52
Remaining disposed of case properly convinced that we rehearing originally, appellant’s for is overruled. motion v. Princess State Gossett (Without Appellant’s No. Written Motion 27,515. Opinion) June Rehearing 1, October [1955] Denied appellant Houston, Haynie, counsel King C.
only. *2 Brady, Assistant Eugene Attorney, Walton, Dan District Attorney, Douglas, Houston, State’s Attorney, Leon
District Austin, for the state. rehearing motion
on state’s WOODLEY, Judge. light of the State’s
After more mature consideration were in error Rehearing, that we have decided Motion For we original original convic- opinion in wherein we reversed our forged in- of a variance between tion in that offered of facts as strument described in the statement That in the indictment. evidence and the instrument described opinion is now withdrawn.
Upon charging forgery, appellant an indictment her with being waived, pleaded guilty jury and on before the April 14, 1954, plea judgment and the was entered heard, adjudging appellant guilty forgery evidence sessing and as- punishment years penitentiary. her at in five judgment “imposition provided The de- further of sentence recognizance pending ferred —defendant released own follow- on ing probation probation terms of adult law. Terms of to—not violate law this other state or United States.” Appellant apparently accepted judgment and appeal having given expiration no notice of been before the during the term which the was entered. 5, 1954, praying
In November motion for the revocation alleging 21, 1954, appellant was filed that on October violated the of her terms that she committed the check, passing capias a worthless offense alias was or- appellant. dered issued for the arrest of
Hearing 12, 1954, day was had November and on the same reciting appearing pronounced “It sentence was to the court this same defendant has violated the terms of heretofore again her, having accorded she violated the laws of this State ** *” check, by unlawfully passing a worthless Appellant’s notice was noted in the sentence and recog- $5,000, 23rd bond on was set at on November by appellant nizance on was entered into sureties. hearing statement facts on revocation shows signed 12, 1954, appellant totalling on October two checks $65.00, her, sum of which were cashed for and that they checks such were not honored the bank were drawn be- cause had she no account said bank. paid The evidence further shows that off checks were hearing
prior but after the motion for revocation had filed, capias and alias ordered. proof showing acquired draw- $65.00 *3 ing cashing upon and the checks a bank where she was unknown and had no account is sufficient to show a violation of Art. 567b V.A.P.C., making delivering in and a check with intent to de- fraud, knowing that the maker has not sufficient funds in the bank payment were checks drawn for the there- State, 616, of. Watson v. 154 Texas Cr. R. 229 2d 621. S.W. 781b, V.A.C.C.P., provides Sec. 3 of Art. that the court shall determine the probation terms and may conditions of and in- among following: clude them the probationer
“That the shall: “(a) against Commit no offense any the laws of this or other ; State or the United States “(b) injurious Avoid habits; or vicious “(c) persons places Avoid disreputable or harmful character;
“(d) Report probation parole and directed; officer as “(e) probation Permit parole and him officer to visit at elsewhere; his home or “(f) faithfully employment Work at suitable pos- as far as ; sible
“(g) Remain a specified within place; “ (h) Pay fine, assessed, his if one be sums, in one or several and make reparation restitution or any in sum that determine; shall
55 dependents.” Support his “(i) probationer a V.A.C.C.P., provides 871b, 5 of Art. conditions
may for violation arrested be jury hearing without court, “after probation probation.” or revoke the continue con- upon conditions clemency by the court is extended clemency under nature, accepting the in
tractual imposed. the conditions trial, therefore not proceeding to revoke statute, is, authorized jury
and pass under the the court without a has violated issue of whether discretion, so, may, revoke probation, if his terms of State, proper. Wilson v. he deems or continue the 228, R. 2d 774. Texas Cr. S.W. part judge trial is shown abuse discretion on the No revoking pronouncing sentence. original Appellant also seeks a reversal of the conviction forgery revo- pronounced wherein was first after the purpose February 4, cation and for day which was the last 1954 term crim- the November court, gave appeal. inal district notice of
The state contends that the can- from the conviction because, provisions entertained this court under *4 of Law, V.A.C.C.P., the Adult Probation and Parole Art. 781b probationer appeal the the of accorded time is at the placed February he is term, which at the was 1954 given appeal and that of of prior notice expiration was not to the required
that term as Art. 827 C.C.P. Appellant, on hand, imposition the other contends that of granted, sentence was pre- deferred when was which appeal vented the of the conviction imposed. until sentence was State, 311, 225, Lamkin v. 138 Texas 136 2d Cr. R. S.W. authority holding timely cited as properly perfected for has appeal from the conviction as well as probation. the from revocation of appeal
Lamkin an from a conviction v. State was which granted suspended judgment perfected sentence in after felony subsequent conviction. of a had revoked reason been contained no consideration suspended under law sentence judgment prior provision a to sentence. appeal for from case, Following Lamkin this court the decision of V.A.C.C.P., expressly pro- legislature 779, amended Article judgment upon might a appeal be taken from vided that no suspended suspended, even after had been legislation effect of had the had revoked. This sentence overturning been holding a direct and was our in the Lamkin case against legislative policy permitting expression of of intent long appeal after the same was secured. from a conviction V, part provides in of the Constitution Texas Appeals appellate jurisdiction “The have Court Criminal shall in cases of co-extensive with the all criminal limits State regula- grade, exceptions with such and under such whatsoever prescribed by tions law.” as nothing in There the Constitution of Texas which would prevent legislature providing appeal from for an case, judgment upon a a in criminal which no sentence pronounced, being privilege appeal had been constitu- dependent upon tional but statute. legislature provide appeal fit has seen before sen- judgment carrying
tence penalty. They from a death have not provide seen fit appeal judgment providing for an from suspension present sentence. Prior to act no has provided in other convictions until has be- which, felony cases, come final pronouncement includes sentence. clearly Sec. of Art. provides 781b V.A.C.C.P. that the trial may suspend imposition as well as execution of place sentence and probation. the defendant on Sec. 5 of said grants statute cases in the fol- lowing language: “The to the Court Appeals Criminal for a conviction, review of the trial provided by law shall be accorded the at the time *5 placed
he is probation. on proba- When he is notified that his tion is revoked for violation of the conditions of he is called on jail to serve a or penitentiary may sentence he appeal the revocation.”
57 regulate jurisdiction authority the legislature has prosecuting in prescribe observed rules to be this court and Constitution. long appeal, acts are not violative so as its 17-18, Jur., pp. 2. Texas 4 Sec. was overriden provision
We know of no constitutional the legislature they disregarded provided by or when should appeal a trial and conviction time to for review probation. placed on is be time defendant suggested provisions of Art. It is imposition appeal a defendant failed to when who placed suspended of sentence was and he was on appeal a from for conviction as well as review of the trial and pronounced called revocation when and he is sentence is jail penitentiary. to serve time in the or dependent upon
The correctness
whether
contention is
judgment assessing
jail
penitentiary
or not the
term
a
felony
conviction,
imposition
constitutes a
where the
of sentence
suspended
is
placed
probation.
and the defendant
giv-
provides
appeal
827 V.A.C.C.P.
that an
is taken
ing
open
notice thereof in
at
term of court at which
had,
having
conviction is
same
of record.
entered
holding
Our
appeal
that an
lies
this court from such
judgment,
though
imposition
suspended, pre-
of sentence is
cludes the
idea that such
is not “a
until
conviction”
pronounced.
sentence is
Art. 829 C.C.P.
with
deals
after
well
as before sentence. It
was in effect when the sentence in
felony
pronounced
case was not to
be
until after the
had
Digest,
;
decided.
(683) Hartley’s
Paschal’s
Di-
Art. 3148
gest,
473;
State,
O’Connell v.
has for an appeal sentence, without the time appeal is to be determined or based time sentence is pronounced rather legislature than the time fixed statute. *6 per- legislature to
Certainly not the intention it was has been who of one and conviction of the trial mit two reviews probation statute. of the accorded the benefit would that, given option, the It clear if seems he, violation time as defer until such time in upon to serve called should be terms of his penitentiary. right any appeal one deny legislature fit to saw situations suspended, in order avoid whose sentence had been State, v. in Lamkin conviction resulted in reversal of the such as supposed It would not be 2d 225. 138 Texas R. 136 S.W. Cr. statute, would enacting
that, a similar situation might elapse years before ten not five but be created where pronounced. sentence appellant’s after sentence conclude We peniten- upon pronounced called to serve
was tiary and she was of the revocation sentence is limited to review appeal for granted, previously that her when she was occurred a review of the trial and conviction placed probation. has waived. This she aside, Motion For Re- set the State’s order reversal is hearing granted affirmed. and the is now rehearing
ON state’s motion DAVIDSON, Judge, dissenting. agree
I cannot for two to the affirmance of this case basic reasons:
First, I am author- convinced the trial court was without ity second, probation, and, prove to revoke the the state did not guilt of the offense was extended.
These I discuss in the named: order Appellant forgery. Upon was indicted for the offense of plea guilty before the court and after introduction of testimony, required, guilty the trial court found her punishment assessed her peniten- at confinement in the state tiary years. for a however, term five The trial did expressly deferred pass but then following order: imposition of sentence own released on “Imposition deferred —Defendant of sentence following recognizance adult Probation. pending terms *7 any other of this or law violate the “Terms Probation —not or United States.” State or judgment, that interesting nowhere note that It is im- the appear that us, it does in the record before elsewhere position agreement request or postponed at the was of sentence en- probation was Indeed, appears that the appellant. it the the keeping with judge and in
tirely at of the trial the will Probation Adult the power him conferred exclusive C.C.P.). 781b, (Art. Vernon’s Parole Law of this state necessary the accused the consent of Nowhere in that law is imposition of sentence the the trial court can defer before place the afforded only upon probation. The recourse the accused order of the appears from accused to be probation.
So, the trial at the will the order here, was not appellant, placed upon probation was and sentence during that, imposed. probation The of that sole condition assessed, five-year law of appellant the the term not “violate any this or other or States.” State United say legal did, then, was to effect of what the trial court appellant, “If, during five-year punishment period as- the case, state, any you any
sessed in this law of this do not violate state, States, other of conviction entered United against you having you will will deemed served and be as been discharged good, be therefrom.” the so-called This sounds but print” along grant “fine that went with that read. has By fine-print, my I law of refer to the court-made probation brethren that could revoked at the be discretion judge anything of the trial for he determined to abe violation law, capital felony this, be it a traffic violation or —and probationer having duly indicted, tried, without been first supposed and convicted of the violation of the law in the courts State, of this state. In Felan v. R. Texas Cr. 276 S.W. 825, my held, here, 2d brethren and hold that by jury not entitled to a trial to determine if he has violated judge, himself, the law but that the trial makes that determina- judge, trial sufficient. any that he deem ti'on reason and execu- judge, juror, holding, prosecutor, becomes under that tioner. dif- no makes it addition, should be remembered In it while exemplary conduct
ference how are probation faithfully conditions of or how on complied part of nevertheless, “No remains, The fact with. considered shall is on time that the defendant serve” be sentenced any part he shall time that during if, 5). then (Art. 781b, So Vernon’s conclusion period reaches the the trial court proba- law, appellant can set aside has violated the good behavior. credit deprive tion existing some when circumstances Such the law and were placed after the had been seven months appellant’s state trial motion to revoke the probation and, filed in the court its *8 charged grounds “vio- therefor, she had as that this, the that committed lated the she terms of course, Passing there is no Of offenses of a Worthless Check.” Moreover, state. such known to the law of this offense statute given any appellant nowhere notice whatsoever therein was alleged to the time or nature of the or where was offense she granted Nevertheless, have the committed the same. trial appel- capias the motion issued state and ordered lant’s arrest. indictment, Thereafter, and of an in- without the semblance against
formation, charging complaint having appellant filed law, pro- her with a of the trial court violation upon allegation ceeded to hear evidence and decreed that “this motion the state’s Defendant has terms of same violated the her, having again heretofore accorded she violated the by law unlawfully passing of this State a worthless check.” Thus, by parte hearing, adjudged an ex being decreed to be a violator of law without condemned in a trial in accordance with law. my mind, procedure To such destroys and conviction by jury process trial and also due If law. those con- guarantees all, stitutional anything they mean at that mean no shall one be convicted of a violation of the law unless until adjudged guilty
tried by competent and in a court juris- diction. right of a to this justifying a denial In the laws violated by jury if she had to determine
trial part rely upon my state, state, alleged by the brethren authorizes 781b, which of Art. Vernon’s hearing, any facts upon parte judge an ex determine at trial violated sufficient, the accused has may whether deem which the law. does, it say my and claim what brethren If that statute does pro- of that void, in contravention
here, it is then it is right of says trial vision of our Constitution provi- (Sec. 15, 1) and of the jury shall remain inviolate have shall prosecutions the accused “In all sion that criminal have the impartial jury,” and “shall speedy public trial against the accusation and cause of to demand the nature (Sec. I.) him.” 10 of Art. proceeding
If a whether has violated determine one prosecution” within the law of this state a “criminal is not meaning Constitution, then what it? is existing
My say between the trial brethren relation court and the contractual in nature when probationer accepts imposed the conditions by the trial court.
It must be remembered that there is no valid contract which entirely Here, judge unilateral. the trial has the to en- consent, force the contract his without upon any he, judge, may terms and conditions which the trial proper. deem upon any He revoke the reason and he, he, alone, fact which deems sufficient to show *9 a violation of probation. the conditions of the
I cannot party conceive of a valid contract where one thereto right has the unlimited and destroy uncontrolled to violate and any that any contract at time and for which reason suit convenience, will, his fancy. exactly Yet that the contract that here appellant, exists between the trial court and the and my approve brethren of which demonstrates that —all majority opinion theory that a contract exists between the trial — court and the fallacy is a not does exist in fact. very fact way that by has no which he prevent can by forfeiture of the contract the trial court .only establishes not there was no contract but also that appeal from nothing to review
there is for this court right the revocation Indeed, appeal from revocation. mean- wholly worthless probationer, that is but accorded nothing ingless review. could because there opinion the facts majority my brethren set forth in the When appellant had violated which the trial court concluded check,” they demon- by “unlawfully passing worthless the law a fallacy position, they to the trial accord strate of their for judge themselves, upon appeal, unqualified guilt a trial. the law without determine one’s How more violation of by pro- effectually jury can of trial or due destroyed cess of law be is here shown? than Oh, my say, they brethren find no abuse the trial determining appellant, his discretion in since has violated the laws of this state. How can there exist a discretion to do or to do certain
thing unqualified when one has the and unrestrained pleases do that which he in the matter ? my
If right, brethren are there was no discretion trial court to exercise my and none for the review of brethren appeal, just pleased. trial court could do ought This reversed, case to be with the trial instructions to court that he reinstate the and that such status be until, by maintained competent juris- of a court of diction, appellant is found state, to have violated the laws of this state, other or the Anything United States. less renders void and without effect our justice vaunted claim of under law. So much for question. the first The second relates sufficiency to the sup- of the evidence to
port appellant’s forgery. conviction of Appellant charged by indictment with the offense of forgery. The indictment described the instrument which she was alleged forged. to have When the jury appel- case was called for trial lant waived a trial plea guilty entered a to the charge as contained in the indictment. Now the law permit will not felony one to be convicted of a *10 merely upon plea a guilty. Before a upon conviction can result record into plea “introduce evidence state must such a showing a no event shall and in guilt .... the defendant guilty suf- plea without charged his convicted person be C.C.P., as Art. support the same.” evidence to ficient amended. attempted to statute, state of this the mandate meet To charged. forgery, This as guilty offense of appellant
prove wholly to do. failed state case we reversed original opinion in this delivered In the guilty. appellant proven not had the conviction because state appellant’s convic- words, proof did not authorize In other tion, and we so held. opinion con-
My and affirm the withdraw that brethren now as viction, they different conclusion not have reached a support sufficiency conviction or not to of the evidence to they a fair and received have concluded that because impartial
trial, they now conclude but because right appeal from such conviction to this court waived legality this review the not entitled to have court was therefore appeal. of her conviction agree. I cannot and do
To conclusion not such right an from a of con- to to right. ought destroyed right viction is valuable That be process highly or technical reason- withheld some strict or ing, construction, contrary, interpretation. To ought possible. preserved all A and maintained where at distinguished interpretation liberal as from strict technical preserve ap- of the law and maintain that should be plied, especially the facts where show accused has not An tried and in accordance law. convicted with being prevent injustice the medium to committed in such a case.
By express provision 781b, Vernon’s “The Court of Appeals conviction, Criminal review of the trial and provided by law shall be accorded the at the time placed probation.” he is
' Appellant privilege did not avail herself of the there con- ferred. *11 ex- the order from appeal My to hold that failure brethren any time at
tending thereafter from bars having and from judgment conviction appealing the of from and convic- legality her trial review, upon appeal, the appellant for my inflict penalty which brethren tion. imposition of sen- failing the appeal to from the is tence indeed severe. this- far as in so own motion the trial of his
When concerned, imposition sentence is to elected defer record judgment place appellant upon probation, no final there was and against A her none that could enforced. sentence be judgment required final and enforcible. was to make it attempt- circumstances, agency Under such with no officer ing any against her, good judgment to reason did what enforce remain, appeal to must have therefrom? The answer Yet, appeal my “None.” when brethren hold her failure to seeking against any judgment pre- one no to enforce any judgment by appeal. cludes later attack on the language 781b, Were it not for the 5 Art. Vernon’s Sec. of C.C.P., right appeal from au- would be case, thorized the absence of a final is quoted, then, exception sentence. The statute an is general to particular necessity application only rule and of has to the face, situation Upon with which it deals. its there nothing appeal indicate that there extended towas be supersede, exclusive or nullify, was to render void extended authorizing and all other statutes one appeal from final conviction in a criminal case. language used in ambiguous, is not statute uncer- tain, or indefinite. arises, then, No occasion judicial for a inter- pretation legislative as to the passage intent in the of the statute. my mind, To my conclusion of brethren when accused appeal fails to from deferring imposition the order of sentence in a criminal case he forfeits and waives his pure judicial legislation thereafter wholly- and is unauthorized. holding But the my stop goes brethren does not there but and, my further lation, mind, by process judicial legis- same decrees that Art. repealed by impli- has been cation. : 829, C.C.P., follows: reads as felony case a defendant “Appeal sentence. after Where pronounced, has been after sentence until fails to demanded, has allowed, shall, nevertheless, if other all superseding the execution effect of time.” proper fully at the as if taken proceedings as unequivocably *12 clearly and It me that statute occurs to this passed. sentence is appeal after a criminal case authorizes one in- right. has been is no that Such There limitation as to years. throughout Yet terpretation placed on that statute holding only repeal brethren, by the statute but my their saying, the effect of write a which has new section thereto impo- “provided, however, application where said statute has no appeal failed sition sentence deferred and the accused is order, appealing from that barred from which event is legislation mind, pure imposed.” my after sentence To that by this court. upon legis-
The courts are often called what the to ascertain lature meant employed or intended stat- words used and ute, seeking but this is the first time I ever a court heard.of ascertain, language ascertaining, legislative intent when no words legislature were subject. used legislature any language nowhere used words or that would in- dicate that it had idea or intention that an accused who placed had imposition with de- ferred, would have no appeal after sentence had been imposed and the for the first time made final. legislature If the intended to withdraw the upon passage of sentence deferring after revocation of the order imposition sentence, so, it just easily could have said as itas did in the instance of suspended revocation aof sentence to my brethren call legislature attention. But the has not done so. I that, by submit decision, my their brethren have done that legislature which did not do or intend and have written for body legislative statute without sanction. long
As 829, inapplicable is not shown to be by special and legislation, direct unqualified is accorded an accused a criminal case after sentence. before properly original case was conclusion Our holding adhered to. correct, should
us on respectfully I dissent.
Margaret v. State Priest 27,663.
No. October *13 Dallas, ap- Benavides, Robert James H. Martin and C. pellant. Allen, Henry Wade, Attorney, James Wil- District Criminal Potts, Alexander, Blackburn,
liam P. and Chas. Assist- Geo. S. Dallas, Dougins, Attorney, Leon ants District Criminal Attorney, Austin, for the state. State’s Judge. BELCHER, person; punishment, seven offense is theft from the
years penitentiary. injured registered party at a testified he suburban
motel; street, and, along walking then went downtown while spoken automobile; was in an that at who suggestion, got they her minutes, few car and after talked parked she drove a short in a secluded distance place; complained being neglected, that she of her home life unzipped trousers, body, began fondling his straddled his his body priváte parts; intimate, amorous ex- that after perience them, go agreed they between at the room to his motel, motel and arrival that the front of she stated