Kelly v. State

by way veston again San Antonio and the hold that We no such warn ing they reason before a search can high- left the interstate made. way get gasoline. was to They testified they were out of the car because one shown; No reversible error is judg-

of them had to answer a call of nature. ment is affirmed. complaint The first appellant ROBERTS, J., not participating. 14.03,

that his arrest was illegal. Article Ann.C.C.P., Vernon’s provides:

“Any peace may arrest, officer with- warrant, persons

out suspicious found in

places and under circumstances which

reasonably persons show that such guilty felony some or breach of Doyle KELLY, Appellant, Gene peace, threaten, or are about to

commit some offense against the laws.” Texas, Appellee. STATE Taylor Tex.Cr.App., 421 S. No. 44791. 403, 408, W.2d cert. denied 393 U.S. Appeals there was a Court of Criminal Texas. somewhat similar fact situation and this May 3, 1972. Court held the legal. arrest Baity See State, Tex.Cr.App., Lara Tex.Cr.App., 469 S.W.2d 177.

We hold that the arrest under Arti 14.03,supra,

cle was authorized.1

Next, complains of the search of the

trunk of the car because he was not

warned that he could refuse to consent to

the search. While testifying in his own

behalf, stated that he con

sented to the search and unlocked the

trunk. We held in Barnett v. Tex.

Cr.App., that an officer

did not have to warn one of his

refuse to consent to a search. Several

cases since then have followed that hold

ing. Tex.Cr.App., Jemmerson (June S.W.2d 201 De 1972), and

Voyle Tex.Cr.App., 471 S.W.2d A.L.R.3rd,

77. See also 9 Section

pages 858-925, which reflects that the ma

jority rule is that warnings the Miranda applicable

are not to searches and seizures

and that consent to despite search is valid give

failure to such warning. may arrest, necessary without pass upon ques officer that an It is not vides carrying unlawfully warrant, legality one tion of the of the arrest under weapon. Ann.P.C., pro Article Vernon’s Ennis, appellant. Jewell, R.

Frank Casey, County Atty., P. Waxaha- Ward Atty., chie, Vollers, D. and State’s Jim Austin, State. OPINION MORRISON, Judge. appeal a revocation from

This is probation.

The revocation Kelly and Doyle against appellants Gene Mitchell, Tex.Cr.App., S. Jerry Dean held to- day decided, W.2d however, be con- gether; their cases will separately appeal on because sidered fact situations involved. different posses- Kelly Appellant convicted of was 4, 1971, February as- of marihuana on sion placed year and (5) a five sessed sentence of his probation. Among the conditions provision “[Ajvoid that was harm- places disreputable or persons or ful character.” petition for The аlleges “did his violate as- and there bation did then [he] places persons and visit sociate character, to- disreputable and harmful did and there associate wit: then [he] persons were known and visit with who persons users who have narcotic (sic), possession of narcotic convicted Kelly Doyle Gene and that further said there and visit did then and associate being place (sic) where narcotics kept.” used and petition amended asserts State’s persons disrepute referred Mitchell, nar- “Jerry are Dean convicted Prachyl and Mari- possessor, cotics Bernie Harper,” place of disre- “premises located pute referred to is the Street, Ennis, Ellis at Dallas 611 South Texas,” County, “under which was Prachyl” and which control of Bernie being “place narcotics were also the where kept.” used and February (1971), The record that on contention that he is reflects 1971, acting pursuant a search of his revo- warrant entitled have the “beyond based on information from an unidentified cation a reasonable doubt.” decided informant, County Deputy three Ellis However, Twomey, Lego garage apartment entered the Sheriffs 30 L.Ed.2d 618 Street, Ennis, 611 South Dallas Texas. Court of the United States single living- apartment contained a Winship, supra, that said area, room-bedroom a kitchen and a bath- Appellant in the kitchen room. was seated than to went further deputies eating piece a of cake when the firm the fundamental that arrived. against ex- tects ‘the accused conviction cept upon beyond a reasonable the officers that mari- One of testified necessary to consti- every doubt of fact places huana in was found three charg- crime with is tute the which he livingroom-bedroom area and that none was ”ed.’ Kelly found on or near but that there was an odor in the air and on of marihuana a and held that neither confession since appellant’s clothing. an question or the is its voluntariness charged, judge a

element of the crime admissibility by could a less Appellant that the court determine its contends standard; e., stringent preponder- a i. failing require erred to evidence, necessary to than ance of the is charges against him a reasonable However, guilt innocence. held that determine doubt. this Court has proceeding a not in the revocation was Likewise, bar, in the at we are case nature of a criminal Tate v. trial. innocence, with dealing guilt 789; Tex.Cr.App., 365 Branch v. S.W.2d culpa an initial determination of 160; Tex.Cr.App., 465 Hood S.W.Zd bility Winship, supra. That issue was as State, Tex.Cr.App., 458 S.W.2d 662. origi appellant at his advеrsely decided may Further on a revocation be based question nal trial. The at finding by the trial court that the terms appellant hearing whether the broke is probation have been violated. Hall v. the court after contract he made with 490; Tex.Cr.App., 452 S.W.2d be guilt. It should determination of his Bruinsma, parte 164 Tex.Cr.R. en a defendant is not remembered that 838; Beto, Seymour Cir., 383 right; as a probation titled to matter of ‍​​‌​​‌‌​‌‌‌​‌​‌‌​​​‌​‌​‌​​‌‌​‌​​‌​‌​‌​​​‌‌​​​​‌​‍proceeding judge F.2d 384. In probation entirely within granting is facts, credibility is the sole trier of the trial court’s discretion. weight given and the witnesses State, supra; testimony. their Hall v. is com majority of this Court State, Tex.Cr.App., Maddox v. 466 S.W.2d viability probation mitted to the 755; State, Tex.Cr.App., Hulsey v. interpretation any logical laws favors 165; and Farmer v. Tex.Cr. encourage tend would of them which App., only question 475 S.W.2d 753. The jus probation at all granting where before this Court whether the trial court is that tified. arе convinced We revoking proba its discretion in abused grant probation likely to judge more State, Tex.Cr.App., tion. Bennett 476 S. if the terms that he assured a case where 281; Tex.Cr.App., W.2d Barnes v. might revoke probation are violated Tex. Manning v. pro same, delay and undue without 656; Seymour Cr.App., therefore, We, conclude litigation. tracted Beto, supra. ju but logically inconsistent is not suggest dicially unsound to Appellant on relies Re necessary revoke 25 L.Ed.2d 368 90 explanation plausible is suffi- probation the one without stringent should appel- judge to conclude that necessary cient for the initial conviction.1 place in lant knew he harmful was Appellant’s contention overruled. first place probation. Such violation of his appellant obviously harmful was Appellant’s contentions next two possession since he failing to hold are that court erred of marihuana. in of his were terms definite and and that the court uncertain Appellant’s and third contentions second knowledge part failed to show are overruled. appellant alleged persons places disreputable and harmful. con The dissent raises the fact State contends cerning in which the manner apartment found in no time At granted was which disturbs me. an odor of marihuana which there was re on motion during hearing im- evidence to circumstantial sufficient appellant raise voke did the pute knowledge appellant that he was proba sufficiency of to the the order of persons of at a company in the harmful the loose I condone While cannot tion. place.

harmful judgment2 original manner in which placing probation worde appellant ei- on was The record that does not establish showing d,3 no Praсhyl nor the fact that there is Harper ther had or complied his duties that the clerk with of Mitchell had been convicted records. Ann. 6(a), under Article 42.12 Vernon’s possession of marihuana 1970 and was C.C.P., is no re I concluded there probation on at the time of this occurrence. Appellant Kelly knew testified that he appellant since never versible error Prachyl nothing disreputable about of specifically he aware was claimed by Harper and that knew Mitchell only claimed probation but the terms of He spoken name never but had him. vague and indefinite. See they that present and testified several others State, Tex.Cr.App., Blackshire S.W. evening. marihuana smoked Further, reflects that 2d the record 108. sentencing prosecutor called during Assuming appellant did not know that he believed to the fact court’s attention disreput- three were оf individuals specifically admonished court had required by able character as Jackson people stay away from State, Tex.Cr.App., and 464 S.W.2d not to use State, Tex.Cr.App., 467 who smoke marihuana Steed v. been appellant, the fact that who had pre Allen The Honorable Bruce himself. possession sev- convicted marihuana original trial appellant’s at both the sided having days eral admitted before who hearing. and at the revocation knowing smoked marihuana Vietnam odor, apartment its in an where was found is no of discretion. There abuse an there and where odor marihuana having judgment he admitted several hours is affirmed. “Imposition part judgment 1. We attention 2. stated: call Project placed suspended. on Bar Defendant American Association sentence Justice, Standards time accordance Criminal Standards for sаid 5.4(a) Relating Probation, (Sec. (iii) provisions the Texas of Art. 42.12 of (Approved suggests Draft Procedure.” Code Criminal [revoca the “establishment of the by Pittman, government parte tion] [be] violation (Em preponderance the evidence." 248 S.W.2d phasis added) ODOM, person .is still a Judge (concurring). convicted offense, suspension and the of his importance In view of the decision remains within sentence the control case, major- in this concur in the reached I the court. The continuance of that con- ity opinion, but feel that I should more trol ... is essential accom- to the express fully my reasons. plishment purpose, of its beneficient probation might otherwise reluc- be more urges require the Appellant this court to or, tantly granted, granted, might when utilization of the reasonable doubt delays be made the occasion of and ob- nothing hearings. can revocation find I struction bring reproach which would which indicates that either sense common justice.” the administration of re- the Constitution United States quires the state to meet this burden. Thus a hearing person crime convicted of a Whether not a criminal supra; trial. Hill v. rests within placed should be Cooper Tex.Cr.App., 447 S.W.2d fact, of the trier

the sound discretion 179; Hulsey v. Tex.Cr.App., 447 State, Tex.Cr.App., 468 g.e. S.W. Smith 165; Manning Tex.Cr. 828; Campbell Tex.Cr.App., 2d is, App., instead, It ad S.W.2d 656. State, Tex.Cr. 918; Glass ministrative in nature. United States ex 320; Tex. App., Ponce v. Sperling Fitzpatrick, rel. F.2d 1161 Cr.App., 398 S.W.2d Stratmon (2d 1970); United rel. States ex 188, 333 S.W.2d 169 Tex.Cr.R. Lombardino Heyd, v. F.Supp. (E.D. Campbell stated in v. As this court curiam, La. aff’d per F.2d “ . . is no to either supra: right . there denied, 880, 1971); (5th cert. Cir. 404 U.S. ” grace. . jury’s or court’s the . . 195, (1972); 30 L.Ed.2d 160 Hill probation An bears seeking accused State, supra. As this court v. stated proving eligibility under the burden of his Hulsey supra: Law. requirements the Adult Probation State, Tеx.Cr.App., Brumfield g. e. “ hearing . . . the result such a 732; State, Tex.Cr.App., Herring S.W.2d a find- to not a ‘conviction’ but revoke might upon which trial court ing by revoking its exercise discretion probation granting serves continuing probation.” society pro of protecting function while rehabilitating a means of lawbreak viding has viola shown a the state Even where 128, See, Rhay, Mempha ers. U.S. terms, probationary tion of ; Burns (1967) 88 S.Ct. States, discretion to allow v. United with the is vested judge L.Ed. Hill (1932); probation. probationer to continue on Tex.Cr.App., 200 (1972). 520, 265 S.W. Dunn v. purpose, order to effectuate this this court 2d 589. be always relationship held has probationer and the trial court tween the being administra- revocation A nature, g. e. is contractual McDonald evidentiary nature, procedural tive in 386; State, Tex.Cr.App., 442 strictly as not enforced as requirements are Glenn v. 168 Tex.Cr.R. 327 S.W. trial. be in a they would 2d 763. that, proba- a (1) where has held: court proba- a has violated that he admits tioner As the Court the United term, need evidence no further tionary States, wrote United Burns revoke the trial court for order probationer heard supra, a law, probation1; appointed boy counsel was liable confinement for (2) days prepare long years. not ten as Since the child need be afforded six hearing2; punished being for a that there is no for the commission of the (3) offense, penal necessity guilt obtain final held that his state a court alleged grounds proven beyond offense must be a doubt.7 viction an reasonable can re- for revocation before does a

voke (4) apply holding To of Winship to a jury by to trial revoca- hearing revocation would be testimony hearing4; complete reasoning denial case, need not cor- accompliсe because, witness person being where is not to be acts, in order for evidence roborated criminally held liable the decision the Winship application. sufficient Lego has Two court to mey, revoke.5 Maryland, Tippett (1972); F.2d this court to saddle Appellant now asks (4th 1971). also Nilsson v. sys- probationary administration State, Tex.Cr.App., proof which would tem with hearing, guilt In a its effectiveness. completely undermine already been determined. us believe that such Appellant asks by process the due clause result is case, appellant being In the instant is not holding of the United States Su- under criminally held liable because he associated

preme in In re persons who used narcotics because 25 L.Ed.2d 368 places narcotics visited where misplaced. reliance on that case His kept. prison being He because sent Any into— inquiry 4, 1971, February he was convicted doubt, proof beyond a reasonable prоcedures process . what due possession of unlawful of mari- offense require may given any set cir- under failed to rehabilitate huana and has since begin cumstances must with a determina- by living up to the terms himself govern- precise the nature of the States, supra; e. bation. Burns v. United g. ment function involved as well State, supra. Hulsey v. by private been affected interest that has 6 governmental action.” surface, appellant’s contention On presented In the court was violating he has been “convicted” of year boy twelve old situation which a appeal. probation has some the terms of juvenile adjudged had been be a delin- that, However, upon analy- careful I submit Family quent. New judge York sis, defects logical and inherent flaws boy Court found that had committed apparent. contention become larceny. the offense of New York Under State, supra; Hulsey g., v. v. Dunn State, Tex.Cr.App., 4. e. 1. 482 S.W. Mitchell v. State, supra. pleads (1972). Where the accused 2d 221 felony, guilty of a to the commission State, Tex.Cr.App., g., 467 5. v. Barnes e. present evidence to must other state still supra. 437; Dunn trial is be conviction where V.A.C.C.P.; Article fore court. Union, Workers Restaurant 6. & Cafeteria State, Tex.Cr.App., 463 S.W. Edwards v. 886, McElroy, 81 367 U.S. Local 473 v. 2d 733. (1961). 1743, 6 L.Ed.2d 1230 State, supra. In a criminal 2. Hill v. It he noted should days Article under must be afforded ten very Winship to discuss careful 26.04, V.A.C.C.P. requiring doubt reasonable fact informality State, Tex.Cr.App., g., would affect Farmer 475 e. hearing. juvenile flexibility Hulsey supra.

47§ that, ROBERTS, important J., joins to note It after careful this concurrence. study, Proj- the American Bar Association ONION, Presiding Judge (dissenting). ect on rec- Standards Criminal Justice ommended “establishment of the violation majority opinion, As noted government by preponderance against revocation of Relating the evidence.” ABA Standards against this appellant Jerry ‍​​‌​​‌‌​‌‌‌​‌​‌‌​​​‌​‌​‌​​‌‌​‌​​‌​‌​‌​​​‌‌​​​​‌​‍Dean Probation, (Approved 5.4(iii) Sec. Draft Mitchell were held at time. At the same 1970). thereof, judge the conclusion the trial stated: accepted procedure seems to be the jurisdictions, in other g. course, e. “Well, Shaw v. Hen you fellows have done derson, (Sth 430 F.2d 1970); 1116 Cir. job. say I good will have to that. I D’Amato, United States v. said, 429 F.2d 1284 King Agrippa am like when he ; Lauchli, (3rd 1970) Cir. United States v. ‘Paul, persuadest thou almost me.’ But denied, 427 F.2d (7th 1970), 258 Cir. cert. we do have a case the State 868, 111, brought evidence it isn’t on and Beto, (1970); Amaya (5th 424 F.2d 363 admittedly reasonable and I don’t doubt Cir. 1970) Nagelberg, United States v. knowledge to know the wisdom and (2d denied, F.2d cert. telling who is the truth and who isn’t. 1010, 569, L.Ed.2d 502 certainly any pleasure I don’t out get (1970); Leighty, Wash.App. State v. sending ei- revoking (1971); P.2d 91 11 Md. Smith Depart- boys ther of these to the Texas App. 273 A.2d (1971); Dickson Corrections, ment I also know that but Ga.App. 184 S.E.2d 37 and order. For got we have to have law (1971) People v. Majerus, 271 N.E.2d 380 facts, am reason and under the I Hardnett, (Ill.App.1971); People v. going both revoke N.E.2d (Ill.App. 1971); People Hay supplied) boys.” (emphasis these ko, Cal.App.3d Cal.Rptr. (1970); Raper It is clear that the trial court did not 462 S.W.2d 261 Valle, (Tenn.Cr.App.1970); People use reasonable doubt standard of used, Misc.2d he should have (Ct.Spec.Sess. claims N.Y.S.2d 67 1957); altogether nor is Reinmuth v. clear what standard he 163 Neb. Appellant N.W.2d did use. relies Re Win ship, 25 L.Ed. Moreover, United 2d 368 Court has recently declined review in two time, cases which Apparently ques- raised for the first the same contention as by appellant required raised herein; proof tion of the burden just of a once 8 to its probation proceeding decision in revocation is Winship of and once since squarely presented. decision.9 Finding logical legal repeаtedly court has said that reason for This once de- stroying utility granted, ‘has been it as a should not tool for by court, rehabilitation requiring arbitrarily by that the withdrawn and be- yond used, a reasonable doubt standard be court is not authorized to with revoke I concur. having probationer out found that the Lauchli, Nagelberg, 8. United States v. F.2d 413 United States v. 258 F.2d 708 427 (2d 1970) ; denied, (7th cert. cert. U.S. Cir. denied 396 U.S. 400 Cir. 1010, 569, 111, (1970). (1970). 868, 90 S.Ct. 24 L.Ed.2d 502 91 L.Ed.2d 108 27 Arciniega Freeman, v. also See 22, (1971). 4, 126 92 S.Ct. 474 probation.1 ings proceedings 'where a are not criminal

violated condition of may be presumption rights an accused Certainly there of inno is substantial 128, Rhay, Mempa v. U.S. And it affected.’ cence. has also stated that 254, The revo- proceed L.Ed.2d 336. proof burden revocation proceedings cannot be isolated ings proba cation show such a violation of process. the context of the criminal tionary condition is How from State.2 ever, State, Tex.Cr.App., 435 v. See Crawford has never been at 921-922. S.W.2d 148.” 456 adequately has not S.W.2d discussed. This itself to the of whether addressed 2, Rhay, also v. McConnell See “beyond is the burden a reasonable (1968). 21 L.Ed.2d 2 doubt,” “by preponderance evi dence,” proof” or “by convincing Tipps, clear and recently in Fariss And acceptable some other standard. involved (Tex.1971), which S.W.2d mandamus, application for writ court has held a number of occa- proceed- that a held Texas proceedings sions that revocation are not pros- a “criminal probation is ing to revoke criminal trials in the constitutional sense.3 and constitution state within the ecution” court, the earlier decisions Since speedy ato was entitled probationer however, revoca- concerning the nature of provision speedy trial further proceedings, is now cleаr while of the United Amendment Sixth required state constitutionally is not process re- a due Constitution hearings provide revocation revocation applicable to state quirement part process anymore aas of its criminal Fourteenth proceedings through than it provide appellate Article Vernon’s See Amendment. review, does, but that when it then due Ann.P.C. process equal protection of the law fully applicable thereto.4 recognized that it has been Certainly stage a critical proceeding is necessity application of due process must where counsel the criminal process equal protection to revocation indigent, appointed if recognized this court been warned and has without counsel Campbell State, (Tex. the same.5 Cr.App.1970), where it was also stated: supra, held that Re “It would indeed be difficult now doubt, re- which is a reasonable

conclude that probation revocation hear- Illinois, Griffin 1. Wozencraft L.Ed. 891 (Tex.Cr.App.1965) ; Campbell 404 P.2d Hoffman (Tex.Cr.App.1970) 456 S.W.2d 1965) (Alaska v. Common Williams (Tex. Jackson v. 464 S.W.2d 153 wealth, N.E.2d 779 Mass. Cr.App.1971). See also United States v. Cox, (1966) ; N.M. Blea Taylor, (9th 1971). 449 F.2d 117 P.2d (Tex.Cr. 2. Zane v. original dissent this writer's See also App.1967) ; Campbell State, supra note Crawford 1; Perry State, (Tex. v. 459 S.W.2d (Tex.Cr.App.1968). 865 Hulsey Cr.App.1970) ; State, 107, Herold, v. 447 S.W. 383 v. U.S. Baxstrom Cf. (Tex.Cr.App.1969). 2d 165 760, 620 L.Ed.2d 15 86 S.Ct. ‍​​‌​​‌‌​‌‌‌​‌​‌‌​​​‌​‌​‌​​‌‌​‌​​‌​‌​‌​​​‌‌​​​​‌​‍Ann.C.C.P.; 42.12, Ex Vernon’s 228, 5. Art. v. 156 Wilson Tex.Cr.R. 240 (Tex.Cr. Williams, parte 472 ; Leija 414 S.W.2d (1951) S.W.2d 774 167 supra. Rhay, Mempa ; App.1967) (1958) 300, 320 S.W.2d 3 holding Mempa to counsel to the supra Hulsey note and cases ap at there cited. Rhay, retroactively. plies McConnell McDonald, supra; parte Douglas California, 353, Ex U.S. (Tex.Cr.App.1971). (1963) ; in criminal and the Future of by process the due clause Re Gault quired Juvenile 4, pp. Law, Family Quarterly, due Law No. trials, among the of is ‘essentials dur process and fair treatmеnt’ juvenile adjudicatory stage when

ing the “Moreover, use of reasonable-doubt the con an would charged with act which is indispensable the is command standard adult.” by if an a crime committed stitute community respect and confidence of at at 1070.6 397 U.S. S.Ct. law. It applications in the criminal of is of critical moral force Court noted by standard in criminal criminal law not diluted beyond a reasonable doubt people na- in doubt years as a early dated from our leaves cases plays being . con- . whether innocent men are tion and that such standard “. supplied) . (emphasis in the scheme demned. .” a vital role American . procedure.” at at at 1072. S.Ct. U.S. stated, is,” “a “It at 1072. the court S.Ct. Further, in Harlan late Mr. Justice risk of prime reducing instrument for concurring opinion Winship wrote: his resting Id. error.” convictions factual Ann.C. also Article Vernon’s ‘pre- Although phrases “. . . C.P., establishing the reasonable-doubt ‘proof ponderance of evidence’ in Texas. all criminal cases quanti- beyond a reasonable doubt’ are communicate tatively imprecise, they do Winship: further wrote in notions to the finder fact different “. . Speiser . As we said in Ran- he degree concerning the of confidence 525-526, dall, supra, 357 at U.S. [513] expected to have in correctness is [1332], L.Ed.2d at 1342 [2 his factual conclusions.” always litigation : ‘There 1460] opin- at 1076 (concurring error, margin of representing error ion). factfinding, parties must take both party into account. has at Where one majority opinion rejected And the transcending stake an interest value— suggestion that there a “tenuous liberty criminal defendant his difference” between the reasonable-doubt —this margin of error is reduced as him preponderance standards. process party of placing on the other case, . . In this the trial very “. persuading burden of ability judge’s distinguish between factfinder at the the trial conclusion of the two standards enabled to make guilt him a reasonable doubt. finding guilt that he conceded process Due that man commands shall might not have made under the standard liberty lose his unless the Government beyond a reasonable doubt. borne the burden Indeed, judge’s the trial action evidences vincing guilt.’ To factfinder of his accuracy end, of the of com- observation the reasonable-doubt standard ‘the test preponderance mentators indispensable, ‘impresses it misinterpretation susceptible to reaching necessity trier of fact merely calls on trier of fact subjective state of certitude Rezneck, perform weighing of the abstract facts issue.’ & Dorsen supra; 431 1968), 6. See also Santana See also Crawfоrd (Tex.Civ.App. (Tex. rev’d Eiland S.W.2d 551 —Amarillo (Tex.1969), Fletcher, Cr.App.1969) ; parte vacated Ex light parte (Tex.Cr.App.1969) reconsideration Ex remanded S.W.2d 705 Fuller, (Tex.Cr.App. 435 S.W.2d 515 curiam), (per 1969) ; parte Buffington, prejudice Bird, (Tex.Cr.App.1969) parte 457 S.W. ; on remand with dism’d (per curiam). (Tex.1970) (Tex.Cr.App.1970). 2d delinquency proceeding. fact- in to determine which venile The evidence order quantum, finding process just as in produced greater is as adverse side has convincing in af- regard proceedings its effect other where accused is without process including the proposition rights forded due his mind of the truth of Rezneck, supra, at standard. reasonable-doubt asserted.’ Dorsen & 367-368, at 26-27.” Note, 657, it In 1971 Wis.L.Rev. at 1074. written: majority opinion noted that In Re steps “. . At other in numerous Gault, procedure liberty is the criminal where that, although decided the Four- threatened, has Constitution require teenth Amendment not does guarantee process. construеd to due adjudicatory stage juvenile de- always original This is at the the case linquency all the proceeding conform with probation is not trial. Revocation of requirements of a criminal even merely a the old reconsideration proceeding, of the usual administrative It is the charges with a new sentence. application process require due clause does imposing of an old sentence due to new during stage of due of “the essentials allegations. The chance that these new process treatment.” The court and fair allegations wrong as may just safeguard concluded constitutional great original as the chance that proof beyond reasonable doubt was charges The chance for wrong. required as much in such arbitrary justice great no error or less safeguards applied in those Gault(cid:127) —notice ‘liberty’ valu- second time less counsel, charges, right rights of con- able.” examination, privi- and the frontation and lege against self-incrimination. re- in It been held this state probation is hearing to revoke sult of a appellant urges holding in finding not a “conviction” but Winship compels application of the might court exercise its which the trial reasonable-doubt standard to revocation continuing revoking or discretion least, It, logically at fol- cases. earlier, bation.8 And as noted probationers To are lows. hold that adult hear- frequently that revocation has. said process to be denied due under the correc- ings not in constitutional are trials parentis of in-loco or for tional rhetoric sense. receiving juveniles other reasons while are type reasoning ad- same be, process my opinion, due would support of claim Winshiр vanced seri- arbitrary raise distinction would deprivation of due had been no that there protection as due equal ous issues as well reasonable-doubt process and that process considerations.7 ju- aside, It found favor proceedings. legal are venile When all the niceties laid Appeals but was Court the New York proceeding to revoke involves by the expressly rejected United of an individual to continue at that labels Supreme who noted Court liberty or It imprisoned. to be involves need do not obviate liberty good intentions possibility deprivation just of a safeguards process due for criminal original or ju- as much criminal action 159 Tex.Cr.R. 8. Dunn v. said: (1954) Soliz that demand "The same considerations (Tex.Cr. protect factfinding extreme caution App.1961) apply 393 S.W. McDonald as well to the the innocent adult 1965). (Tex.Cr.App. 2d innocent child.” U.S. at Note, 1971 Wis.L.Rev. 1073. Cf. 654-55. juvenile possible probationer violating courts where the loss of accused of condition, liberty probationary is involved. I think it must consequences concluded that while the are Certainly the use of the reasonable- altogether identical to those a crim- doubt Texas of revocation juvenile delinquency inal trial or in a those proceedings necessarily bation need not proceeding, the differences will not disturb the earlier decisions nor have Texas proof. a distinction in the standard of any flexibility speed real effect on the hearing the revocation which provides reasonable-doubt standard fact-finding place. say takes I venture to presumption of concrete substance for the judges most trial Texas use surely prevails innocence that in revocation reasonable-doubt standard in revocation hearings. Winship, supra, In Re Cf. anyway, proceedings- whether stated U.S. at 25 L.Ed.2d 368. their orders of revocation is the or not. It burden of that most trial majority my characterizes conclusion judges are applying. accustomed to inconsistent, logically judicially un- 38.03, supra. Article privilege. sound their per- which is I am fectly willing my to allow conclusion I would hold that the constitutional safe- stand majority the test of time. The does guard proof beyond a reasonable doubt not seem to have the same confidence. process as a matter of due and fundamental required in fairness is Texas revocation Although rejecting the reasonable-doubt probation proceedings along with the standard, majority fails to inform the counsel, trial, speedy etc.9 ap- bench should and bar what standard consequences of When one assesses the pliеd proceedings and how an erroneous factual determination in a instant This is in- case that standard. met regrettable. deed probation proceeding revocation of in which probationer procedure probation 9. Under And such is not entitled Texas when a proba- pro jury having determine if his er is accused of bationary to a violated 42.12, by committing Art. § be revoked. conditions should supra Hulsey 2; penal supra; offense, note he is not entitled to re supra quire note 7. be a Dunn v. revocation there probation may Further, for be revoked trial and conviction in a petent of com any offense; jurisdiction penal it is not violation of which offense felony of a or a violation forms the basis of the revocation where restricted turpitude. involving moral misdemeanor the burden of would be State, supra 165 Tex.Cr.R. Jackson reasonable doubt. Dunn v. 7; parte Bruinsma, S.W.2d 809 note 164 Tex.Cr. (1957), char- are often Revocation R. cert. informality, nom., Ellis, relaxation their acterized den. sub Bruinsma v. admissibility evidence, ab- of rules jury, to these fac- etc. If we add sence of Gorman v. Hulsey (Tex.Cr.App.1958) ; than reason- a lesser burden of tors S.W.2d 744 lay doubt, groundwork supra able we note 2. proceedings. requirement of such the former abuse process, really (Art. 776-781, Suspended that due it be said Can Daw Sentence circumstances, re- Ann.C.C.P., 1925), does not these under Vernon’s but not liberty deprivation quire rea- (Art. before the Adult Probation Law. applic- And if Ann.C.C.P.). standard? sonable-doubt The fact Vernon’s formally filed, on a violation based to revocations able probationary has never been an offense prohibiting com- filed, conditions the indictment or other accusa- or if tory pleadings offenses, penal not be dismissed, should mission оf applicable or the have been alleged charged violations all other has been fact that the depriva- easily just result acquitted offense, can before liberty? revocation, prevent tion of after the does not for revocation use of such as basis probation. following majority’s mitting it a impressed by into evidence the I am not Jack 1774, 368, Denno, son v. mere that revocation recitation sense, hearing. the There (1964), the 12 L.Ed.2d 908 in are not trials the constitutional facts, upheld use of the Illinois court’s judge is the sole trier of discretion, “by preponderance of stand the evidence” appeal question is abuse on free, however, to left proba- ard. States were grant did to that the court not have many al adopt higher standard and have if all this somehow place first as tion in the peti noted ready The court proper done so.9A burden properly determines suggest that nothing to hearings. tioner had offered proof in revocation unreliable or admissibility rulings been have of the law “It is one of the misfortunes not wanting quality because otherwise encysted phrases and that ideas become pre higher than the based on some standard to long for time cease thereafter Lego not read ponderance I do standard. Hyde United analysis.” further voke undermining limiting or Twomey as 793, 391, States, 225 U.S. result Winship calling a different J., (1912) (Holmes, 56 L.Ed. 1114 deal I are not here than reached. have We dissenting). on an admis ing proof burden of with the rejecting it concerns me that And are sibility and far different values ruling failing to and in reasonable-doubt standard involved. majority would any fix other standard cases been few Surprisingly there have that fear factor take into consideration the been presentеd issue here has where the this would judges trial state able Leighty, urged and In State considered. more likely probation. less I utilize the de- (1971), Wash.App. 485 P.2d 91 judges that. than confidence our relied issue and fendant did raise same into con- taking fear factor how this Just Washington Supreme upon Winship. The con- majority to the sideration commits outright with- rejected argument laws, but viability of our tinued prior out and cited cases decided discussion viewpoint leaves others with a different all Winship to the effect . pon- is a uncommitted one is that evidence [a] will what someone der. And should fear of satisfy reasonably facts such as govern do or this court’s determina- not do ‘violating court that the ’” and laws the constitution of whether probation, . the terms of his require? this state States and United any in- holding P.2d at without 92. Such hope I should not. depth per- Winship is not consideration of suasive far as I am concerned. aware, course, of 4-3

I the recent am Winship Prior number of courts Lego Twomey, 404 holding in the burden made similar decisions as to (1972), proof.10 Winship since other courts require And constitutionally Winship does not rejecting the same result have reached the find a confession volun- judge a trial ad- reasonable-doubt standard without mention tary before reasonable doubt (5th Bryant, Lego Twomey, Cir. 9A. 431 F.2d Footnote 1 of States v. See No. 1970) Langley, ; F.2d supra. United States v. While the burden 1970) (5th ; admissibility ruling appear United Cir. does ; 1970) (3rd state, D’Amato, squarely Cir. F.2d have been decided Neb. 80 N.W. Reinmuth v. Hill v. discussed. People Valle, (1957) ; (Tex.Cr.App. 7 Misc.2d 2d 874 at 487-488 125, 164 (Ct.Spec.Sess.1957) 1968) ; N.Y.S.2d Nash v. Nagelberg, Nash, (Tex.Cr.App.1972). 413 F.2d 708 1010, the trial United States (2nd judge Cir. ‍​​‌​​‌‌​‌‌‌​‌​‌‌​​​‌​‌​‌​​‌‌​‌​​‌​‌​‌​​​‌‌​​​​‌​‍cert. den. used reasonable-doubt judges 24 L.Ed.2d 502 Texas do. most States, g., Manning v. United 10. e. (5th 1947) United F.2d Winship.11 bearing adoption courts have had a The Illinois to Win-

sistently ship held burden a lesser burden of than rea- proceedings by prepon- their sonable doubt such standards. the cases derance evidence. None of Those espouse preponder- who would Winship.12

considered ance of the evidence standard do would true the American Bar As- It is also well to consider what late Mr. Justice Project on Standards for Criminal sociation Harlan said in his concurring opinion Justice, Relating Standards Probation to § Winship: 1970), 5.4(a) at Draft (Approved 65-67 provides prosecution . assessment, one “When makes such an establishing should have burden of the reason for different standards by preponder- occurrence the violation a opposed in civil as liti- to criminal again ance of the evidence. ...” Here gation apparent. becomes In a civil suit adopted prior this standard was to with- private parties money between two for out Winship. consideration of damages, for example, we as no view it more general serious in for be an there Further, significant it is that such to me erroneous verdict in defendant’s favor also a revoca- standards recommend that than for there to be verdict an erroneous proceeding solely based commis- plaintiff’s A preponderance favor. ordinarily sion of another should not crime of the evidence standard therefore seems disposition initiated to the of that for, peculiarly appropriate explained charge. See 5.3 id. This means that the § sensibly, simply requires most the trier penal offense which forms the basis of fact ‘to believe that the existence disposed will have first been probable fact is nonex- than its more competent jurisdiction a court of in a may istence before find in favor [he] beyond whеre the burden of party per- who burden to is, course, reasonable doubt. This suade the the fact’s [judge] of existence.’ practice or rule Texas. Footnote See No. 9 hereof. case, hand, “In on a criminal the other And it to be observed that a new crim- we do disutility not view the social con- inal typically frequent offense is the most victing equivalent an innocent asman way and serious probationary disutility acquitting someone who ” ditions may guilty. can violated. This . well have . . strength opinions Ga.App. Dickson v. 124 lower from 184 (1971) ; they S.E.2d 37 Smith v. 11 Md. fact unreviewed left App. 317, (1971) ; Raper 273 A.2d 626 here. denial of writ of certiorari ‘The (Tenn.Cr.App. imports expression opinion upon v. 462 S.W.2d 261 no Lauchli, case, United v. States 427 F.2d merits of the as the bar has been (7th many 258 cert. told den. 400 U.S. times.’ United States (1970). Carver, 482, 490, 27 (Emphasis supplied) It is true that writ certiorari was de L.Ed. 361.” Dauchli, supra, Maryland Show, nied in United Baltimorе Radio 'Winship, “[djenial 912, 917-919, after date of but U.S. certiorari, frequently (J. as has been ex L.Ed. Frankfurter’s plained, imports certiorari). nothing opinion denial of as to the merits on that, of the case. All means is reason, Majerus, (Ill. People whatever there-was not mem N.E.2d four 1971) App. ; People Griffin, bers of the Court who wished hear the N.E. People Dawes, Wright, (Ill.App.1971) 2d § case.” Federal Courts Allen, (Ill.App.1971) ; People v. In Brown N.E.2d 214 443, 491-492, Latham, (Ill.App.1971) 397, 439, 270 N.E.2d 563 (Ill. People (1953), Hardnett, the court 270 N.E.2d 864 L.Ed. wrote: Cook, Ill.App.2d “Thirty years App.1971) ; People ago the Court rather sharply reminded N.E.2d the Bar not draw Prachyl requirement of The record reflects that neither Then he added that Harper ap is “bot- had records or that a reasonable doubt pellant personal had knowledge on a value determina- that either tomed fundamental marihuana, far used etc. Mitchell had been society our it is worse tion of marihuana, possession of guilty convicted of but at man than to let convict innocent ” of Mitchell’s conviction in Ellis . time go man free. Army in County appellant in the El was urge adoption of who would Those Further, he knew Paso Viet Nam. standard, preponderance-of-evidence Mitchell name and never even had Harlan, pre- must be paraphrase Mr. Justice made, spoken to him. the arrest When is no more pared to defend the that it view premises in the kitchen of the general to continue a serious eating piece of the named cake. None of than to revoke in the room and individuals was same depriving causing imprisonment and him appel marihuana was found there or liberty. him also Mr. of his Justice person. majority expresses lant’s The supra. dissent, Lego Twomey, Brennan’s doubt that the evidence is sufficient to show in that he the three individuals named knew Further, deportation proceedings, in even pleadings disreputable or harm were of prepon rejected required by ful character as ruled the standard and Government derance Jackson 1971); (Tex.Cr.App. “clear, un allegations its with must (Tex.Cr. Steed v. convincing and evidence.” equivocal, App.1971) Shortnacy and Naturalization Woodby Immigration and I (Tex.Cr.App. 1972). agree. 487, S.W.2d 713 276, 285, Service, The court noted 362 (1966). remaining is whether question The to a tantamount deportation that is not place question in evidence shows that found it The court criminal conviction. harmful character. disreputable was of and that deprivations” and could lead to “drastic alleged “611 South The to revoke motion person impermissible it was proof Dallas in while the Street Ennis” country upon high “banished from premises that were showed [his] proof applies negli in a degree Ennis, Street, er of garage South Dallas 61U/2 gence Prachyl. case.” apartment occupied by Bernie evidence, opinion, insufficient my

The quar- particular living to reflect that these of involves The revocation that such reputation ters bore bad and deprivations.” more than “drastic reputation appellant and was known to the major- The that he did not avoid the same. above, For the reasons stated I would re- ity concludes that since admitted verse this cause for failure of the trial Nam, smoking marihuana Viet had apply proper court to of standard marihuana, he possession of convicted of —that of reasonable doubt. should have somehow detected the odor present marihuana the officers claimed was Appellant urges regardless also in the other room known at and should have utilized, evidence place that moment the was harmful to him is insufficient to show that failed to (since he probation) was on should persons places disreputable “avoid or or departed before the arrival of harmful character” in of his violation police. I evi- cannot conclude that such bation. The amended motion to revoke al- dence was sufficient reflect a violation leged disreputable persons or harmful probationary alleged regard- condition Mitchell, Jerry were Prachyl Bernie less the standard of used. Harper, disreputable Marion and the Street, place harmful was “611 South Dallas Appellant also advances the contention Ennis, Ellis County, Texas.” condition of allegedly vio- the accused .so being released and uncertain.” lated was “indefinite know, certain- may with authorities and the conten- recognizes such majоrity expressly parte conditions are.” conviction, ty, those fails what but, affirming the 301, 248 S.W.2d Pittman, 157 Tex.Cr.R. left to are to answer the contention. We ,13 conclusion, any. if wonder their Project Association American Bar anything in In to the absence addition Justice, Standards Standards for Criminal conditions, any, if what the record show 3.2(b), provides Relating Probation § judge, the record imposed the trial not be “should probationary conditions 6 of compliance fails reflect § real ambiguous give no vague so as to requires supra, the clerk Art. guidance.” suggests impropriety and condi copy terms to furnish imposing conditions which achieve note the de tions to the generality particu- a level of as to be of no docket of livery same be ex- lar value. All such conditions should State, 458 See McShan v. court. plicit primarily as an aid to the offender 1970). (Tex.Cr.App. increasing understanding is ex- of what stated, I reasons would reverse For the pected of him. finding abuse of discre- this conviction tion. connection, note, I same do judgment passing, simply entered “Imposition

reflects: sus- sentence

pended. placed Defendant

said provisions time accordance with the

of Article 42.12 of Texas Crim- Code of

inal proba- Procedure.” No conditions of tion were judgment set out nor is MITCHELL, Appellant, Jerry Dean separate there to be granting found order any entry or other instrument or Appellee. Texas, The STATE of setting forth probationary conditions. No. 44792. any probationary first mention of imposed dition is found in the motion to Appeals of of Criminal Texas. revoke. May 3, 1972. When a granted defendant is Rehearing Denied June there are no automatic thereby conditions imposed. judge The trial must decide what

conditions imposed. are to be Article 6, Vernon’s § is Ann.C.C.P. And this true

whether the judge grants probation, trial case,

in the instant whether jury. recommended latter

situation, the judge those limited to suggested

conditions statute, in the but he

certainly not required impose all of them.

This court repeatedly held it incumbent judge the trial to incorporate in his

order judgment granting probation

conditions upon which the accused was Accord, g., e. McDonald ‍​​‌​​‌‌​‌‌‌​‌​‌‌​​​‌​‌​‌​​‌‌​‌​​‌​‌​‌​​​‌‌​​​​‌​‍McBee v. (Tex.Cr.App.1969) Stover 166 Tex.Cr.R. (Tex.Cr.App. 365 S.W.2d 808 also Walls 1963) ; Glenn v. Tex.Cr.R. 273 S.W.2d 875

Case Details

Case Name: Kelly v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: May 3, 1972

Citation: 483 S.W.2d 467

Docket Number: 44791

Court Abbreviation: Tex. Crim. App.