Rogers v. State, 640 S.W.2d 248

Rogers v. State

640 S.W.2d 248

Tex. Crim. App.

1982

Check Treatment

*1 ROGERS, Appellant, Steve Texas, Appellee.

The STATE of

No. 67334. Texas, Appeals

Court of Criminal

Panel No. 2.

June

On Rehearing March Rehearing

On State’s Second 20, 1982. Oct. Abilene, Gordon, appellant. James C. Elliott, Atty.

Patricia A. Dist. and R. Grant, Abilene, Jack Atty., Asst. Dist. Rob- Austin, Huttash, for the Atty., ert State. ONION, P.J., and TOM G. DAVIS

Before CLINTON, JJ. OPINION CLINTON, Judge. appeal

This is taken from an order revok- ing probation that resulted' from convic- property tion for theft of over the value of Appellant pleaded guilty to the $200.00. 1979 and offense theft on con- punishment years was assessed at two Imposition fine finement and a of $500.00. suspended of the sentence was granted. tion was May The record reflects that on to revoke the State filed motion alleging six different violations of con- (1) probation, namely: ditions of his that appellant report failed to to his February; (2) officer the month of faithfully at failed to work possible; (3) employment suitable insofar as he failed to advise his officer change in within 48 hours of his ad- (4) place employment; ap- dress pellant pay his fine of failed $500.00 per the rate of month for the months of $50 1980; October, (5) through April pay monthly probation fee he failed to November, 1979 for the months of $15 1980; through April, (6) *2 you you I asked if THE COURT: pay failed to court costs on or before $43.00 Immediately preceding you with them and said comply October 1979. 26,1980, appellant June you held on would. signed stipulation of evidence and con- Yes, THE DEFENDANT: sir. fessed to all six of the violations contained Now, you And haven’t. THE COURT: in the State’s motion to revoke days just to going give you sixty I am to plea an oral Appellant also entered don’t, you you’re if straighten up, and allegations the trial “true” to these before finished. judge. At the conclusion of this Yes, sir. That’s THE DEFENDANT: judge the trial ruled as follows: enough, fair sir. when tell me you “THE COURT: And you comply— THE And COURT: you get job can’t not the fact —It’s you you working are or what Whether there; jobs that the aren’t are there. report least can do is doing, you are Now, there are all kinds of excuses says report. to like it obeying this order. Yes, sir.” THE DEFENDANT: going you proba- I am on to reinstate 26, 1980 the trial court September On tion; is, being. for the time am that “this is a continuation of a announced going specif- to continue this 1980;” June hearing that was had on date, September sixty ic on 26. That’s proba- summarily and revoked away.1 days appel- violations tion on the basis of six Yes, THE DEFENDANT: sir. stipulated being to as previously lant going THE COURT: And then I am permit judge “true.” The trial refused to you determine whether or not are serious testimony. evidence or any additional thing. about this any subsequent allegation There is no Yes, THE DEFENDANT: sir. us; violations contained in the record before telling you THE COURT: And I am indeed, wholly the record is silent as to right you now that if are not serious what, anything, occurred the nine- if it, about this probation going to be ty day interim between June 1980 and you going peniten- revoked and are simply There is September tiary. appellant obeyed hint whether or not Yes, THE DEFENDANT: sir. judge up- oral instructions of the Now, you got THE COURT: held the conditions of his help job. some here in You getting ground appellant of error By his first get get better out there and to work. judge denied him his contends that the backbreaking, but it won’t hurt right fundamental fair to due you. expect you obey And I all of the having once exercised his dis ness in that requirements other of this order. And cretion continue on sixty days up, when I want at least at the on June conclusion half of this five sixty something hundred revoke authority he was paid. dollars to be appellant’s probation Yes, THE DEFENDANT: sir. proof allegations in the absence THE You make a COURT: note of Appellant primarily violations. that, Ms. Faulkner. on this decisions in Wallace v. relies Court’s Yes, MS. FAULKNER: sir. State, (Tex.Cr.App.1979) Now, then, you THE COURT: when State, Wester Sep- placed were back last responds by Cr.App.1978). The as State tember, you you I asked understood merely contin serting the trial

requirements, you did. you said not exer hearing, therefore he did ued the continue, Yes, modify, authority sir. cise his

THE DEFENDANT: emphasis supplied by opinion 1. All the writer of this unless otherwise indicated. case, appellant’s probation Septem “The record in this as in Wallace v. until Thus, supra, clearly shows that holdings

ber under court modified Traylor this Court in and did not revoke the (Tex.Cr.App.1978), Stanfield tion after a violation of the conditions of (Tex.Cr.App.1979) and Ex probation was shown at the earlier hear- parte Feldman, *3 State, ing. supra.” Cf. Wester v. App.1980), proof any vio Wallace, in Furrh and both The decisions lations necessary.2 was supra, proposition stand for the Accordingly, the issue is refined so that it having its trial court once exercised author- devolves question into the of whether the ity and modified the conditions of trial judge appellant’s probation, tion, may change disposition at a 26, hearing or continued the itself on June subsequent hearing where no further viola- types 1980. Both are statu- continuances was tion shown. 42.12, torily authorized in Article V.A. § hand, correctly On the other as the State as C.C.P. follows: State, notes, supra, at Stanfield “. . . hearing after a a jury [the by continuing the Court held that the hear- may continue, either modify, court] ing, the trial court “took its decision under probation. revoke the . . The court Feldman, supra, parte advisement.” In Ex may hearing good continue the for cause at held that Court by shown either or the defendant hearing: continue the state.” keeping “... before it the violations al- proven, permitting careful ready In supra, Wallace v. at the Court mitigating consideration of or exacerbat- wrote: circumstances, including the subse- judge “What did the trial do here? Did quent probationer, conduct of the before he appellant continue the on making a final decision whether to re- did he revoke on June 1977? voke.”3 orally revoking proba- He stated he was the crux of the dilemma: On Herein lies tion, but he entered no written revocation judge June 1980 did continue impose at the time and did not sentence. appellant’s probation modify it accord- fact, appellant In he stated to the that he ingly, or he take his under did decision hoped he have take that ac- didn’t pending the advisement outcome subse- circumstances, tion. . . Under quent by appellant? conduct It is far from August appellant’s condi- clear, when, here, particularly as we have tions of were modified and he appellant’s subsequent no idea what con- subject was released to such conditions. duct was nor whether the trial judge was sentenced, He was not appellant’s apprised even of it. The critical issue must disposed case was not of as if there had finally by be answered is contained in been no In effect what the transcription The the record before us. appellant court did was to continue the reporter’s clearly *4 by deciding en banc court “whether modifying oral instructions the conditions appellant’s probation, trial continued of his judge exercised 26, the hearing or itself on June ap discretion and determined to continue 1980.” 1980; probation pellant’s on June hav so, authority done he was without rehearing away On we turn from this appellant’s probation on reflection question. expe- Further and the in allegations 1980 the absence and of such as this one per- rience of cases proof of a Appellant violation. the distinction suaded us that between was therefore right proc denied his to due probation” “continuing “continuing the of law. The proba ess order his revoking of hearing” question is irrelevant to the tion is set aside and remanded. the cause is process is due when the trial court away probationer’s liberty. finally takes DAVIS, J.,

TOM G. dissents. Before the Court en bane. begin by recognizing liberty We that the protected of probationer by the due

OPINION course of provisions and due of law Gagnon v. Scarpelli, constitutions. 411 ON MOTION FOR STATE’S U.S. 93 S.Ct. 36 656 L.Ed.2d REHEARING (1973); State, v. 542 Wester S.W.2d 403 ROBERTS, Judge. (Tex.Cr.App.1976). This is because his lib- panel’s opinion noted, As the indeterminate, this Court erty, although includes has delivered two lines of in which many unqualified cases core values of lib- of the was a long delay there erty, family between to with such as freedom be urge clarify judges deprived would 4. We trial their of 2. “No citizen this State shall be type life, immunities, liberty, actions so property, privileges this eliminated in situation is or here, disfranchised, the future. The trial any except by court the one or in manner probation told hand stated, that rein- the law due course of Const, of the land.” Texas clearly and on the other stated I, hand art. sec. 19. continuing hearing. that he was What did judge really question mean? This State, (Tex.Cr.App. 3. Furrh 582 S.W.2d 824 v. should not be left unanswered in the record. State, 1979); v. 575 S.W.2d 512 Wallace Certainly if we are forced to surmise the an- swer, there can be State, Cr.App.1979); Wester v. 542 S.W.2d 403 to the little doubt as confu- 1976). (Tex.Cr.App. probation- part that sion remains on the of the probationer er. Since it is the who needs to parte 4. Ex 593 S.W.2d 720 implications judge’s understand the rulings, of the State, App.1980); v. Stanfield expect we would 1979); State, (Tex.Cr.App. Furrh v. explain him, thereby also the effect to (Tex.Cr.App. 1979) (dictum); Traylor 824 preserving it in the record. (Tex.Cr.App.1978); Sap pi ngton (Tex.Cr.App. S.W.2d 840 any person any deprive shall 1.“[N]or State 1974). life, liberty, property without due ” .... law U.S. Const.amend. XIV. Brewer, probation. Morrissey tions of friends, enduring freedom to form other life, 483-484, of normal freedom to be 2601- attachments S.Ct. U.S. to func- gainfully employed, and freedom Wester v. (1972); 33 L.Ed.2d 484 responsible person. tion as a and self-reliant (Tex.Cr.App. 405-406 471, 482, Brewer, Morrissey v. 408 U.S. this, 1976). cases such as In the context of (1972).5 33 L.Ed.2d S.Ct. probationer in which the was returned to addition, has relied on months, there must be a probation for three probation will implicit promise least an the condi that he breached determination up to live be revoked he fails (or after he was returned to tions And, Id. evidence of a newly there is discovered course, lengthy he faces incarceration if his known at which was not previous violation Therefore the probation is revoked. Id. It would be the hearing).6 the time of grievous inflicts termination first of arbitrariness for a court epitome and often others. loss on alleged conduct a violations liberty Id. Probation is a valuable proba to return the exercise its discretion Amendment protected by the Fourteenth (whether by a “continu tioner the Texas Bill of by Section hearing” a “continuance ance Rights. several and then decide probation”), apparent It is con- discretion in the months later to exercise its liberty tinues to- have an interest revoking opposite fashion when, one held after a such as the of a new viola determination case, returns on June 26 the court *5 tion. pro- probation revoking him to rather than revocation approved The cases which the liberty His interest is not affected bation. pro- after the probation, of several months by procedure’s being the called “continu- probation, without bationer was returned to hearing” ance of the rather than “continu- seem to a of a new violation determination enjoy to probation.” ance on He continues Although the arbitrariness. sanction such above; liberty the core values of mentioned course of violation of due and due implicit least rely he continues to on an at for stare decisis appears clearly, respect law promise that will be revoked holdings examine these to see causes us to condition; if he breaches a and he continues justified. To excuse the need if can be grievous The lengthy to face incarceration. probationer the hearing for another after loss, revocation, has to be suffered. yet “continuing probation by returned to was who has been probationer Therefore the giv- were hearing,” justifications the three hearing, re- returned to after a authorized procedure en: that was label, retains the gardless procedural statute, it was a “break” which that liberty valuable of and the due wanted, it did not process protection of the Fourteenth of new violations. involve the consideration Amendment Section (The recently abandoned the third Court the fundamental protection This includes justifications None of these justification.) recently re- requirement probation, that the scrutiny. can withstand turned, away arbitrarily. not be taken statutory justification was advanced There must be a determination Feldman, 720, 721 parte has in fact breached the condi- in Ex exceed, pa- Although Morrissey provide, the minimum v. Brewer involved Texas requirements process. no differ- role rather than there is of Whisenant v. 1977). guaranty (Tex.Cr.App. ence of due relevant to the See 632, parole Texas, 199, between revocation of and revocation 101 S.Ct. Vincent v. 449 U.S. probation. Gagnon Scarpelli, unclear) (1980) (holding (per U.S. 66 L.Ed.2d 391 (1973). L.Ed.2d 656 93 S.Ct. curiam) challenged (dismissing appeal which Whisenant). course, determination, 6. This must be made hearings hearing. at another Such revocation plish disguised proba- a continuance (Tex.Cr.App.1980), and Furrh v. (dictum). tion; (Tex.Cr.App.1979) provides separately statute 42.12, It based on Article was V.A.C.C.P. hearing “may the court either 8(a), provides, “The court Section continue, modify, probation.” or revoke the [probation continue the revocation] 42.12, 8(a) (em- V.A.C.C.P. Article Section good cause either the shown phasis supplied). or the state.” was held that defendant justification for the continu- The second hold permitted the trial court to statute argu- ance of “break” then, essentially complete hearing an parte was in Ex ment which made by continuing without a formal (Tex.Cr.App.1980): decision, return violator, “A if faced with a period deciding tion for an extended before choice immediate revocation and between thing to revoke. The first to be said about that, imprisonment postponement and the justification is even it were statutory provi- action, practically construction of the all correct final cases sion, justify it could unconstitutional not an He delay. choose the would consider ” procedure. It is well settled that a statute ‘getting himself to break.’ contrary provi which is constitutional Accord, Stanfield sions cannot be the law of the land. Mar argument 947 n. 1 This (Tex.Cr.App.1979). bury Madison, (1 Cranch) 5 U.S. justify cannot the actions in these taken 176-177, (1803). But con L.Ed. with, fails, begin argument cases. To struction the statute was correct. terms; probationers even on its while the statute, hold, contemplates we a contin being want the break of re undoubtedly necessary uance which to overcome one they just turned as undoubt the various obstacles that prevent having do want the “break” of edly proceeding beginning from on time and summarily, which is the probation revoked evidence, closing smoothly such proba issue us. It is true that before docket, an illness of coun overcrowded when, got tioners a break after the evidence sel, witness, unexpected absence of closed, them the trial court returned and so on. We also hold contem *6 It is revoking. rather than worth plates (such a short a few period time got remembering they a break when days) closing during after the of evidence granted begin with. were to faith, good which a in judge, conscientious point liberty The is that their interest might consider But his decision.7 the statu less on remaining not tory provision for a continuance does coming through account its an unde contemplate prolonged period “It served is clear at least after break. which the is returned to 471, Brewer, 92 Morrissey 408 U.S. v. S.Ct. an action is tion.8 not a true Such continu- 2593, (1972), proba 33 that a ance; L.Ed.2d 484 it is a to decision thinly-disguised longer process tioner be denied due Feldman, can parte continue Ex proba . . in reliance on the dictum . that 720, (Tex.Cr.App.1980) (On- 593 S.W.2d 722 ” grace.’ v. ion, P.J., Gagnon tion is an ‘act of Scar is no to dissenting). There reason 778, 4, 1756, 411 782 n. 93 statutory pelli, believe that the for con- U.S. S.Ct. provision 4, (1973). “Getting accom- tinuing was intended to 1760 n. 36 L.Ed.2d 656 But, State, 1978) (8 disposition, probation- (Tex.Cr.App. S.W.2d 492 from arrest 561 State, speedy may months); requested Sappington er has S.W.2d who v. 508 840 days. Aguilar 1974) months). (3 be (Tex.Cr.App. for more than 20 v. confined Cf. Furrh v. State, 1981). (Tex.Cr.App., State, (pr (Tex.Cr.App.1979) 621 S.W.2d 781 824 582 S.W.2d oba months, for 3 then re tion was continued parte violation; Ex S.W.2d 720 8. See 593 voked determination of new “continued,” (hearing Cr.App.1980) had been reversed, said but in dictum Court returned 7V2 trial court “could have continued hear months); State, Stanfield v. ing"). (Tex.Cr.App. 1979) (2 months); Traylor v. 254

break,” grace,” the Texas version of “act of returned to is no more a reliable dictum for denial of evil, The trial court had heard no at least process. pains due The Court was at not on the record. Stanfield v. 588 explain Brewer, in Morrissey v. 408 U.S. (Tex.Cr.App.1979); Traylor 947 471, 481, 2593, 2600, 33 L.Ed.2d S.Ct. (Tex.Cr.App. (1972): 1978); Sappington “ rejected Court now has the con 841 (Tex.Cr.App.1974). justification ‘[T]his This cept rights that constitutional turn apparently recognition was made in of the whether a governmental benefit is char process violation that would occur if ’ “right” “privilege.” acterized as a as a or reports the trial court did consider of such Richardson, Graham v. 403 U.S. 374 subsequent The expressly conduct.9 Court 1848, 1853, S.Ct. 29 L.Ed.2d [91 534] (and, justification apparent abandoned this (1971). Whether any procedural protec ly, its due qualms) parte in Ex depends tions are due on the extent to Feldman, (Tex.Cr.App. which an individual will be ‘condemned to 1980), when it held that the trial court grievous suffer loss.’ Anti-Fascist Joint hearing, “keeping continue the before it the Refugee McGrath, Committee v. 341 U.S. already proven permitting violations 624, 646, 95 L.Ed. S.Ct. [71 817] the careful mitigating consideration of (1951) (Frankfurter, J., concurring), quot circumstances, exacerbating including the ed in Goldberg Kelly, U.S. probationer, conduct of the be- S.Ct. 25 L.Ed.2d [90 287] making fore a final decision whether (1970). question merely is not (Emphasis supplied.)10 revoke.” lat- This ‘weight’ interest, but individual’s holding, disregard est because of its plain whether the nature of the interest is one requirements process, the minimum of due within contemplation ‘liberty proce- is even worse than the “hear-no-evil” property’ language of the Fourteenth justification dure. But the “hear-no-evil” Shevin, Amendment. Fuentes v. 407 U.S. fails, also way, up its own to measure (1972).” S.Ct. 32 L.Ed.2d [92 556] standards of due and due course The fact probationers got their above, explained of law. As we have it is liberty through a break has no significance epitome of arbitrariness that a court in the due process and due course of law should hear all the evidence and return a considerations. person liberty probation, only justification which the liberty away third has been take months later for no (at made justi- ap- called the “hear-no-evil” additional reason least none that approved record). fication. revoca- pears belated The action is no less arbi- sense, tion without an additional if that trary indeed, in a it is even more — appeared action from the record to have arbitrary kept scrupulously the record is —if *7 been based on the any sign reports violations which clean of of new viola- proved were previously origi- months at the judge. tions reached ears of the trial hearing, any And, record, nal and not on spotless no matter how conduct which have always occurred after the has been hard to believe that judges 9. The would be denied the mini all noted that three who requirements process: justification mum of due written no advanced the “hear-no-evil” tice, evidence, it, opportuni disclosure of adverse abandoned too. The author Stanfield of v. ty evidence, State, presen*- right sup'v, passage quoted to be heard and to to also wrote the witnesses, parte confiont and cross-examine adverse above from Ex Feldman. The author of (in cases) Traylor State, supra, forthrightly, and some the assistance of counsel. v. has stated Gagnon Scarpelli, Traylor See 411 U.S. “I would not hesitate to overrule if it (1973). justify procedure S.Ct. 36 L.Ed.2d 656 There can be uti- used to here rights parte would also be a denial of more elaborate lized.” Ex provided by P.J., generally (Tex.Cr.App.1980) (Onion, dissenting). Texas law. See Whisen (Tex.Cr. State, supra, Sappington ant v. 104-105 author is the S.W.2d The of App.1977). opinion. author of this CLINTON, Judge, concurring. he judge really heard no evil—that reason, decided, just for no apparent panel opinion my I and of As author that he had proceeding the revocation finish indeed to determine brothers did undertake a few interrupted previously. months dichotomy unhandy on which side jus- argument, like the other “hear-no-evil” years the by the Court over the created tification, to excuse the is not sufficient matter To condition a facts of this fell. hearing. of another denial a liberty decision as to best, down- but ago, trial courts this fashion is awkward at years a few when Only judges and at Trial are injudicious worst. probationers right brighter procedural a line of away liberty take entitled to then tried to the Court violation and I concur with what guidance, a determination a new proper today. we con- provides of the conditions of probation, practice. demned the mo- opinion of the Court has been “[Wjhen proceeding a revocation by the dissent- rehearing is assailed tion for pro- had and the defendant continued on pre- surely a not ing opinion warning, with (al- court bation in the discretion of the diction, part an on the adverse reaction an for though adequate there was basis grant of the trial bench —“a reluctance hearing), at the revocation demonstrated a continu- a to allow reluctance subsequently be the continuation cannot hearings, and ance of revocation of the arbitrarily withdrawn at the whim probationers give a doubtful a reluctance an arrest. trial court or mere fact of think first second chance.” would proc- otherwise violate due To hold all, does and “reluctance” not follow ess, of the of the land due course law opinion in the the Court inhibits nothing fundamental fairness.” bona fide judge from a granting a trial language hearing, continuance Webster v. statute, shown good “for cause Accord, omitted). (footnote Cr.App.1976) state,” defendant Article either the Wallace But, 42.12, 8(a), a hazard to a V.A.C.C.P. § today we App.1979). recognize What probation- for “second chance” “doubtful occur that the same constitutional violations suggest- reaction ers” is evident should the proba a when is so revoked vogue provid- ed the dissent become in during tioner was returned to — sympathet- there is no other rational ed hearing.” prolonged “continuance of probationers.” treat way ic “doubtful pro approved None of cases which turn now to though, I believe there justified cedure have as be the distinction that is still another not develop alternative While ing anything more than a charade. precisely opinion. examined in either short, for a fide con place there is bona hearing, can tinuance of the a continuance probation initially imposed, Conditions return disguised become decision inscrutable,2 immutable are however as it did in during period Section 6 other this case. To the extent held 42.12, supra, authorizes court of Article wise, procedure opinions approving such time” having jurisdiction “at are overruled.11 modify” “alter or the term to 8(a) contemplates overruled. af- rehearing probation,3 § The motion 11. These 1. supra. wise indicated. All emphasis include the is mine cases listed throughout in nn. unless other- 4 and or harmful g. c. Avoid Remain ‡ persons character; within a ^[*] Sf« specified places ^[*] place; S(S *8 disreputable s(! probat- authority 3.Only alluding Among 2. others: any as views I do intimate habits; “any injurious procedure proper process time” “b. oi for an Avoid or vicious allowed, I am “may ter a revocation the court satisfied we would be ad- continue, pro- question either in this modify, dressing or revoke a much different Thus, bation.” while usu- case. given condition will, ally period it need not run the entire may A seem simple written modification probation; nor is the court from precluded reality it exalt form over substance. instituting an new cir- additional or one as operates against of discretion that abuse cumstances require. terms and which is undetectable from a record pro- conditions enumerated in 6 are what § summary proceeding, by demonstrating include, “may bation but shall not be limit- there was none. ed to.”4 join opinion judgment in the it Accordingly, seems to me that a court Court, suggest with this effort to an alter- is well equipped provide a “second judicial slamming native to a shut the door probationer.” chance” to the “doubtful to a second chance.

judge of the court tailor a new condi- modify tion or an one to fit what- existing McCORMICK, J., joins. problem being contemporaneously ever and, by probationer5 along manifested TEAGUE, Judge, concurring. with that amount of oral “woodshedding” 17, 1979, September finding ap- On appropriate, writing. deemed reduce pellant guilty degree felony of the third Then, thereafter when a violation $200, offense of theft over one, (or course) that condition other two appellant’s punishment assessed alleged by preponderance and shown years’ penitentiary in the confinement evidence, proba- all will know that the fine, also assessed a but ordered the $500 tioner muffed his second chance. imposition years’ of the two confinement In the instant case the record demon- suspended. Appellant placed was then willing 42.12, strates that court below was adult Art. V.A.C.C.P. probation. See expected extend a second chance and to see imposing special Other than condition would remain in improvements appellant’s compliance Taylor County the trial court ordered probation, including with the conditions of comply during his term of payment of at least “half of this five hun- probation with the usual rules and condi- sixty something dred We cannot dollars.” 42.12, tions of Art. Sec. See respect ap- learn from record in supra. pellant great expectations; failed those still correcting had measures for one or more of 14, 1980, the Subsequently, May State been problems concerning proba- filed a motion to revoke writing, among papers reduced to filed tion, appellant violat- alleging therein that and our copy appellant, and a furnished of his ed such “technical” conditions compliance improved work; record revealed that report; failure to tion as failure sixty days within the had not been achieved report change of residence and failure to pro- in, e.g., alteration or modification of conditions of Flores v. (Tex.Cr.App.1974). bation. acknowledge Noteworthy “wide in this connection is that Decisions of the Court selecting probation,” provision separately at the restrictive set forth discretion in 3a, by granted relationship generally end of a “reasonable § id.—“If limited jury protec may impose the accused the court those condi- to the treatment of and the public,” tions 6 hereof.” Hernandez v. which are set forth Section tion of the (Tex.Cr.App.1977), 342-343 deter —was deleted effective p. purpose. Leg., Acts 2. So for that See § 67th ch. mined longer necessary to the notion of Warr 834-835 is a resort conditions, Cr.App.1979). “fleshing prescribed terms and out”

place gave appellant tri- employment; pay and failure to “second chance.” The the above fine.1 al then stated: going you I am to reinstate 26, 1980, the appellant appeared On June tion; is, being. the time I am in the trial court for a on the going specif- to continue this to a probation, State’s motion revoke his date, September sixty thereafter ic 26. That’s stipulation entered into a of evi- dence, stipulation days away. of evidence consti- an by appellant tutes admission that all of Yes, THE DEFENDANT: sir. allegations motion to re- State’s going THE And then I am COURT: After hearing voke were true.2 the evi- you determine whether or not are serious revoke, dence on the motion to thing. about this engaging colloquy in a with the appellant, Yes, THE DEFENDANT: sir. the trial court then telling you THE COURT: And I am 26,1980. date, until On that right you now that if are not serious evidence, hearing any without it, going to be about taking any testimony making any find- you going peniten- revoked and are fact, ings of summarily entered an order tiary. revoking appellant’s probation, imposed Yes, THE DEFENDANT: sir. the previously suspended year two sentence. Now, you got THE COURT: some At the June hearing, appellant help getting job. here in You better testified that his failure comply with the get get out there and to work. It above conditions of resulted from backbreaking, but it won’t hurt you. a variety of circumstances: “I couldn’t hold expect you And I all obey of the other keep job. job I couldn’t find in requirements of this order. And when Abilene. I didn’t worry anybody. want to sixty days up, I want at least half of figured I could work it out myself, even- sixty something this five hundred dollars tually.” His real problem failing with paid. to be comply with the of probation conditions Yes, THE DEFENDANT: sir. probably best expressed by following that, You THE COURT: make note of question asked prosecuting attorney, Faulkner, Ms. [the and the answer appellant gave: officer]. Yes, MS. FAULKNER: sir. Q: Would it be a fair statement to say you just your Now, then, stuck head the sand THE you COURT: when hoped and sort of problem go would placed were Sep- back last away? tember, you you I asked if understood Yes, requirements, you you A: said did. sir. Yes, THE DEFENDANT: sir. Thereafter, appel- the trial court heard you you THE COURT: I asked if plea chance,” lant’s for a “second as well as comply you with them and you said statements from rela- would. tives as to what assistance and aid

would render Yes, THE DEFENDANT: sir. practicing 1. In Appellant plea the vernacular of some defense also entered a of true attorneys, prosecuting attorneys, and trial State’s motion to revoke See Det judges, usually these (Tex.Cr.App. conditions are referred to rich v. 1977). more, “technical” plea, charac Such a would have terizing distinguish them as such in order to been sufficient itself to sustain an order them from mor See, serious conditions of revoking appellant’s probation. Cole recognized, such as “violate no law.” It is (Tex.Cr.App. v. 1979); nevertheless, among those members of the Clapper vernacular, Bench and Bar who use the “tech Cr.App.1978). conditions,” proba nical violation of tion cause a trial court to revoke a defend ant’s *10 Now, that end Judge the result of Roberts’ hold- you And haven’t. I THE COURT: just going give you sixty days ing, Judge joined, really am Clinton in which don’t, you’re result, and allow con- straighten up, you permit if and will and a finished. of which he con- perpetuation tinued that of a demns —the continued Yes, THE DEFENDANT: sir. That’s probation. motion to revoke a defendant’s sir. enough, fair Furthermore, many of the state- I find that comply THE And you COURT: —Wheth- makes in his Judge ments that Roberts working what are do- you you er are or unnecessary proper disposi- to a opinion are like it ing, you report the least can do tion this cause. says report.3 Yes, (Empha- THE DEFENDANT: sir. parte Ex added.) sis Court, speaking (Tex.Cr.App.1980), this formerly a through Judge Douglas, Leon went, Ninety days came and and dutiful- Court, of this held: member 26, 1980, reap- ly, September appellant on peared any allega before the trial court. Without finding of “true” to Upon evidence, testimony or from wit- statements the tion of violation of court matter, nesses, nor for that as anything can, It its has choices. sole dis three page reflected the “blank” in the record cretion, immediately revoke appeal, summarily caused (Tex.Cr. Wise v. year punishment previously the two sus- instead con App.1972). can choose 1979, 17, pended on to be acti- September does, then no tinue but it appellant vated when it sentenced be taken based further action of two On penitentiary years. for term already the violations before court. 10, 1980, the formal- appellant was October Wallace sentence, year ly sentenced serve the two App.1979); Wester gave appeal which he notice of after Or, it can (Tex.Cr.App.1976). contin Court. State, 561 hearing, Traylor ue (Tex.Cr.App.1978), keeping I the. Though find under circumstances proven already violations before revoking the trial court’s action careful consideration and permitting June was appellant’s probation on exacerbating circum mitigating nevertheless, commendable, I have also stances, including conduct trial court neither afforded found making before a final probationer, process and due appellant nor accorded due whether to revoke. decision law, provided by provisions course Constitutions, State Federal of the third considers use dissent probation on when it revoked petitioner’s proc- course a violation I, Art. September 1980. Sec. See retains rights, ess because court Constitution; 14, United Amendment discretion, Texas solely in its power to revoke States Constitution. evidentia- formal requiring rather than of condi- ry hearing upon new violations and understand the Though appreciate tions of eloquent and stated remarks many well violator, if faced with A probation make in Judges and Clinton Roberts cause, immediate revocation I find choice between respective opinions in this their matter, or, with June from of the above 3. could infer all One probation he failed to com- whether conditions court his decision on conditioned ply appellant’s probation with after June not he Alas, the record does last statement. Furthermore, though the stated not even reflect whether or sixty days, continued for matter to be reported June to his officer between apparent sheet that he it is the docket from Also, “ninety” rather than meant to use the word totally appeal to what silent as record “sixty.” word complied is not a imprisonment proper disposition of this cause to postponement *11 action, part Feldman, of practically simply final in all cases hold that that delay. choose the He would which held: consider “getting himself to be a break.” Upon “true” finding any allega a of probation, tion of violation of the court The instant case bears this out. The can, has three in its sole dis any choices. record is devoid indication that cretion, immediately probation. revoke objected passing Feldman of the (Tex.Cr. Wise v. hearing. Nor is motion on record App.1972). It can choose instead to con seeking speedy re-convening pro- a does, if it probation, tinue then no Feldman, but ceedings. It appears that like further action taken based the a believed continuance before already before violations the court. the exercise of the court’s discretion in Wallace v. deciding whether to revoke App.1979); Wester be in his agree. own best interests. We (Tex.Cr.App.1976).... Id. at 721. The relief sought denied. Id. at law, everything sound in and overrule the contrary that Court has stated in Onion, joined Presiding Judge by Judges past, remainder including the of Feld- Roberts, Phillips (formerly a member of this holding? man’s I think so. Court), Clinton, strong wrote a dissent- find, Clinton, I Judges as Roberts and did Feldman, ing opinion disagreeing in with take, that the avenues a trial court the majority of the Court the law after it has been that a shown allowed for a “continued on the fact, violated his are few. see State’s motion to revoke.” 42.12, V.A.C.C.P., 8(a), Art. Sec. and as If I comprehend dissenting pointed Roberts, a by Judge out trial court Id., opinion Feldman, stated, in and reduce really (1) only options: has two revoke the line, the matter to its bottom it is that no (2) continue reasonable trial would ever judge sentence Feldman, part supra, probationer, allegedly who has violated allows for a continued on the his probation, penitentiary without revoke, State’s motion to and which I also first according affording probation- overrule, is, Judge vote to as Roberts’ er law, due and due course of as states: “a thinly-disguised decision to con- guaranteed by both the Texas and United But, probation.” part tinue the where I States Constitutions. dissenters also Bench, company my with Brother on the rejected the notion that continuing the Roberts, J., is when he states: “While there hearing on the motion State’s to revoke place short, is a for a fide bona continuance day until another was in accord hearing, cannot be- continuance with law, due course of disguised pro- come a to return the decision absolutely nothing presented where was case,” in bationer to as did the record the “second concerning hearing.” hearing] and “it [continuing the contem- Thus, the dissenters did believe that a (such plates period a short time as a few defendant could summarily be days) closing after the evidence sentenced to penitentiary allegedly faith, which a judge, good conscientous in violating might I consider his decision.” take issue

I totally agree short, with conclusions ex- statements, with the “a bona fide pressed dissenting opinion in Presid- hearing,” continuance of the and “a short Feldman, ing Judge However, period (such Onion in Id. days),” of time as few for I Clearly, Chapter in which sions of the context the word 29 of Code Criminal 42.12, 8(a), any provision “continue” is used in Art. Sec. su- Procedure. I do not find in our pra, the word has the same mean- law which “continue” allows for “meditative” or “reflec- given been word has when this tive” continuances. interpreted provi- Court has construed and showing penitentiary

am sure this cause record could make a argument triggered sentencing,5A sound that his con- what evidence tinuing the period wipe was for short We indeed from the books should time, and was based on bona fide rea- hearing of the motion sons, making argument as well has probation principle of law that days for a “few I days.” as a come in our courts vogue into Judge attempt believe that Roberts’ result decision of of this Court’s problem solve the is no solution at all. law once supra, bury principle *12 26, September must return to therefore all, “get- and for for “second chance” and 1980, when in the trial court this cause ting process a due course break” and due or decided that the did in fact legally law I find synonymous. are not probation, violate his and sen- conditions cause, in like the penitentiary. tenced the to the appellant then of this in majority Court supra, grasp failed to that “second chance” that, he Judge I find as did Clinton when necessarily “getting and a break” do not pointed opinion: out his no in “We have law. equal and due process due course idea what conduct appellant’s make the failing to distinction 26, September was June 1980 until [from appellant has court in this cause denied the 26, nor whether the trial was 1980] due and due law. course of apprised appellant’s even of it conduct [the period of time].” after Let us now return June the the to revoke hearing on State’s motion illuminating In a short rather but it was decision, appellant’s probation, thought provoking Supreme the appellant shown the in fact violat- Thompson Court the in v. had United States Louisville, 624, 199, probation. 4 the alleged 362 80 S.Ct. ed conditions of his U.S. speaking 654 (1960),5 unanimously legally L.Ed.2d What the trial court have done could Black, through 26, then simple. Justice stated: on June 1980? The is answer (1) He have: the could revoked Thus, we no in find evidence whatever and sentenced the support the record to these convictions. (2) penitentiary, appel- upon charge Just as a ‘Conviction probation. by lant on As seen the facts proc- made would be sheer denial of due cause, first not then ess,’ avenue was it so a violation of is palatable judge, probably to the trial a man evi- punish convict and acting in with Feldman did (362 accordance guilt. dence of U.S. 80 his S.Ct. opting appellant’s probation, continue the 659.) 4 L.Ed.2d continuing instead for on regular Just as a in a criminal defendant proba- to revoke appellant’s State’s motion proceeding not accorded and afforded due course, That, deci- wrong tion. was process and law regular due course of in a made; with- especially sion for him to have criminal no proceeding when evidence reflecting out he did why the record presented by prosecuting attorney, he did on Louisville, Id., I Thompson would hold Judge that a with the disagree defendant in revocation of statements third regarding proposed tion not be to the makes proceeding may sentenced Clinton ship, years lay Thompson’s 397 U.S. 90 25 L.Ed.2d virtu S.Ct. 5. For Sam decision ally dormant, though occasionally (1970); Virginia, 443 U.S. Jackson for recognized (1979). really by cited it was 61 L.Ed.2d 560 never S.Ct. nation, appellate probably courts of this which statement, course, includes the However, down. court which handed it is limited to 5A. This times, Thompson’s in Sam recent bar. I find in this cause that situation as at being recognized, penitentiary case is and more more was not sentenced to authority support particular even cited as motion because of the revoke, the State’s appellate penitentiary decision of even an but was sentenced to the court See appeal. birth. In re Win caused its not stated record reasons alternative, Upon proposal finding any allega for I find that his of “true” to nothing (1) requiring more than either tion of violation of the court probationer to adhere to the same identical can, has four choices. It its sole discre prior conditions he had tion, immediately revoke, (2) motion to is noth- State’s (Tex.Cr. Wise v. S.W.2d ing original more than a modification App.1972). It can choose instead to con 42.12, supra. conditions. See Art. Sec. does, if it tinue but then Nevertheless, avenue, I do find a third further action be taken based which does not concern a “meditative” or already before the court. the violations continuance, type “reflective” footnote see Wallace v. 4, supra, nor a modification of the defend- App.1979); Wester ant’s The third avenue or alter- (Tex.Cr.App.1976).... native I propose play would come into can, hearing any before evidence on where the trial court has conducted a hear- revoke, on the motion revoke a de- State’s motion to reset fendant’s probation, but the trial court af- date, a future if done cause until ter the finds that he is in a “50-50” argument parties. *13 i.e., position, judge’s 50% of the trial intel- can, hearing It. after the evidence on lect tells him to sentence the defendant to revoke, to the the State’s motion continue the penitentiary remaining but the 50% óf hearing purpose obtaining for sole judge’s intellect tells him that if he new information that will evidence or be had additional evidence or information he determining factor whether or not grant would then probationer the defendant the defendant’s should be re- a “second chance.” The third avenue would But, if it voked. takes this course be only available where the trial court be- investigation action, lieves that further is warrant- then the final decision of whether deciding ed before whether or not to re- or not to revoke must be made on the pro- voke. But under the third avenue the information, basis of the new evidence or bation could not be ordered revoked because and not have been adduced of what the trial court had heard at the hearing at the on the motion to hearing on the State’s motion to revoke probation. revoke the probation.6 concerns, As to Brother Odom’s my Again, I find that after a on a expressed dissenting opinion, in his that the State’s motion to revoke the defendant’s overruling part of that which probation, closed, and the evidence overruled, part I to be will believe needs judge trial can things: do one two discretionary judge “divest the trial of his (1) (2) revoke the or continue the probation. ‘continue, defendant on authority He cannot contin- under the statute to ” ue the hearing solely purpose for the of modify probation,’ or revoke the and “the making a belated decision.7 by that dis- second chance afforded [door] well,” disagree cretion will be shut out as I I would that following therefore hold should be the “true” rule of law: with his conclusions. I cannot envision context, vestigation report finding In this I I mean: that it summarize what is favor- defendant, nevertheless, The trial court states: “After the evi- able to the I am revok- revoke, dence on the State’s motion to I find the defendant’s because of the short, previous hearing.” there is sufficient evidence to order the In there can be no However, defendant’s revoked. I am fallback to the revoke, on the State’s motion to going pre-sentence investigation using something to order a re- from the as a port unfavorable, probation. and if it comes back then I reason to revoke the defendant’s going appellant’s probation. am to revoke the favorable, going If it comes back then I am alternative, Though strictly a fourth court, probation.” continue the The trial in nevertheless, parties, including if all of the instance, prohibited would be from later agreement, judge, trial were cause could saying: pre-sentence “Having in- reviewed prior hearing, until a be reset future date. system law looked our of constitutional crimi- rule of would cause

the above “true” a trial trial courts of State to discontinue law. that if court is a nal I believe court, nor will it cause trial granting probations, the above will not “second chance” probationers “second giving courts to cease unduly regular with the court’s interfere summary, In all the above means chances.” trial court is not “second business. If the judge has is that if a trial found that court, the above will chance” then probationer has violated his any effect Even those trial whatsoever. with trial will then confronted courts were characterized labeled take, i.e., (1) pro- what avenue send were not “a no chance court” affect- second (2) penitentiary, bationer to the or continue ed If a trial court falls within Feldman. the probationer granting thus area, middle then I believe that ground that “second chance.”8 courts, are concerned those when probationer, who enough particular with a easily rest within the trial All avenues a “technical violat- But, may be characterized as discretion. let look at the court’s us avenue, i.e., or,” continuing a “non-technical violator” “second chance” even matter, seriously be affected What are its conse- will not quences? anyone imposed. It should be slight hardships obvious conclu- sion, that the is still under the same that the above “true” cannot foresee probation originally imposed, substantially law alter how our rule of will hearing, con- possibly, since modified but I operating, are now do courts If the ditions of adhered to no believe that with the above later breaches his “second chance” contract sentenced probationer will ever be he is with the trial having first been ac- penitentiary probation, all the trial court must do is law, and due course corded *14 administratively cause a motion to revoke I subscribe when judges believe all filed, the cause probation to be a warrant they are I further be- sworn into office. issue, to and thereafter hold a hear- arrest attempt to carry thereafter lieve probationer the to determine if breach- day day in their to subscription out And, ed the his second contract. regular conduct of the court’s business.9 hearing, probationer if it is found I, therefore, only in result of concur did in fact breach his “second contract” the Judge opinion Roberts. prepared then, again, invoke trial court once available him. I the above avenues to ODOM, Judge, dissenting. hard- recognize slight that this work a decision that a courts, majority’s I dissent to the ship on some trial but to afford hearing of a on a prolonged continuance process and due course of law, automatically must, see, probation v. motion to revoke E.g., we Whisenant to a decision continue equivalent becomes (Tex.Cr.App.1977), are and over- on “slight hardships” should be noted, previously I have further reflection that I find two concluded that there are As only (3) continuing hearing above would exclude two until “true” rule other avenues: obtaining (1) purpose types judges: those who later date for the sole of trial do not information, (2) provided believe in chance” and those who new evidence or that this a “second parties, (4) by agreement judges. could be as otiose trial done of the characterized single judge hearing resetting holding I trial at that time and As do know of a date, acknowledge being provided until a future this is also State would ever ot- who course, iose, actually by agreement parties. will exclude done above “no Of then, alternative, judge opts But the third second trial courts. chance” by this Court in on whether or not to revoke “second chance” rule enacted ultimate decision apply past probation those is limited to what the was never meant the defendant’s Furthermore, reveals, anyway. if there is a and not trial courts new evidence or information being label of an otiose the State’s trial court who fits the what he heard at always invoke the trial then he can motion to revoke. above. fourth I have set forth avenue decision, ty As the majority acknowledges, the lan- since when the door on a de- 42.12, guage 8(a), V.A.C.C.P., of Art. continue, Sec. ferred exercise of the discretion to specifically distinguishes between a decision modify probation revoke the slammed to continue revocation hear- shut, the second chance afforded ing and a decision at the conclusion of such discretion will be shut out as well. continue the itself. majority’s To the establishment of an ar- disregard Yet in statutory of this distinc- bitrary and standardless automatic cutoff tion, the majority prolonged holds that “a of continuances revocation ” (emphasis ‘continuance of the hearing’ hearings, disregard to its of the intent of added) transforms a continuance of the parties, the trial court and to its creation of into a continuation of the right speedy disposi- a new unwaivable to a tion, and divests the of his dis- tion hearing, of the revocation and to its cretionary authority under the statute unwarranted intrusion into the court’s “continue, modify probation.” or revoke the continue, discretionary power modify This of automatic conversion of a respectfully dissent. continuance to a continuation of apparently place regardless takes DAVIS,

intent parties of the court and the TOM DALLY at the G. and W.C. DA- VIS, JJ., time the granted. join continuance is this dissent. time, passage

The mere beyond the point at which the continuance becomes OPINION ON STATE’S SECOND “prolonged” (whatever that is and however MOTION FOR REHEARING determined), apparently activates some McCORMICK, Judge. principle of due estoppel pro- hibits the trial completing court from its Like the majority on the State’s previously jurisdiction instituted over the original motion for we rehearing, agree pending motion to though revoke even the distinction “continuing between step any right took no to assert probation” “continuing the hear to speedy disposition of the motion. Even ing” is irrelevant to the question of what statutory rights speedy hearing to a on process finally is due when the trial court revoke, 42.12, the motion to 8(a), Art. Sec. takes away probationer’s liberty. Fur V.A.C.C.P., trial, and to a speedy Art. ther, agree majority original we with the 32A.02, 3, V.A.C.C.P., *15 Sec. must be asserted rehearing that due mandates anoth by timely motion or by be waived silence. er determination that has Now the majority, basis, statutory breached probation the conditions of after institutes an absolute right speedy dispo- (or he has been probation returned to sition pending of a hearing to revoke proba- newly there is pre discovered evidence of a tion and in the same act establishes auto- vious violation which not known was at matic relief for right: violation of the new hearing). time of the first revocation And the automatic award of a continuation of this new determination must occur at an probation. other revocation which pro for This arbitrary restriction of the trial bationer has been served with a new motion judge’s discretionary probation control over giving proper to revoke him notice as re and revocation of will produce quired by process. grant reluctance to probation, a reluctance However, appellant an cannot com to allow a continuance of revoca- plain appeal of the failure of the trial hearings, give tion and a reluctance court to hold such a when he has probationers doubtful a second chance. preserved his error in today’s by While appellant may receive a tem- porary objection, advantage by holding, making type some of due today’s he and others similarly judge situated will in all either at the time continues probability disadvantaged by majori- be and/or or at the time of merate the or at sentenc- which revocation the time of

actual objection that ap- Failure to such an had violated and ordered ing. appellant make again Once any pellant’s probation error. be revoked. waives objection appellant or by there was no his in the at bar shows that The record ease held on October Sentencing counsel. attorney nor voiced appellant neither his both sentencing, 1980. At sides objections procedure by used any ready, asked: announced the court it. The judge. they urged Indeed trial any reason why “THE COURT: Is there appellant pled true to the record shows pronounced at sentence should not entered violating charges this time? evidence, then stipulation into No, (Defense Attorney) “MR. LINDSEY: surrounding testified to the circumstances your Honor.” of his condi- probationary the violations coun- questioning by tions. Under defense objection Despite opportunities, several sel, appellant testified as follows: proce- as to the was made defense judge “Q. you Do feel like that if the dure used in this revocation. you give does another chance general appellate It is rule get every you up, go can to work error courts will not consider which keep job? day, called, have counsel for accused could but Yes, “A. sir. call, to did not the attention error court at the time when such could “Q. you? Will by the been avoided or corrected Yes, “A. sir. keep up my probation And Esquivel court. law.” within the (Tex.Cr.App.1980), cert. denied U.S. moth- appellant’s that the record shows (1980). 66 L.Ed.2d S.Ct. for job place er and uncle had found a and a is to purpose objection “The an chal court see appellant to live should the trial the action lenge the correctness of fit to continue trial court to the end that such action told that his own attorney defense the court itself, by the court if may be corrected provid- responsibility son would take the for erroneous, .lay the deemed and to founda transportation for the appellant for review, necessary, by tion for its next few weeks so could work and tribunal; and appropriate appellate continue on When the trial silent, gambling accused cannot remain giv- informed that he was verdict, his chances a favorable up”, sixty days straighten ing appellant “to then, gone verdict has when the appellant replied: him, which against objections he raise Yes, That’s “THE sir. DEFENDANT: knew of and could have been sir.” enough, fair C.J.S., Criminal raised trial.” following The record shows the occurred Law, page Section 1980: days later sixty applies rule to constitu general This also *16 reflect “THE COURT: Let the record State, v. questions. tional Mendoza 552 this is the case of State Thompson v. (Tex.Cr.App.1977); 444 S.W.2d Rogers, versus Cause No. Texas Steve State, (Tex.Cr.App.1976). 537 732 S.W.2d 6154-B, on the to revoke State’s motion (Tex.Cr. State, v. 605 Dunlap In 477 S.W.2d probation. This is a continuation of that a App.1971), this Court held defendant hearing that was on June 1980. had appeal time on could not raise the first why Is there reason sentence he was alleging of error de ground time? pronounced should not be at this rights prived of his under Sixth and No, (Defense Attorney) “MR. LINDSEY: of im Fourteenth because Amendments your Honor.” procedures. And in proper identification State, No heard 925 additional evidence was 617 S.W.2d Crawford Rehearing), (Opinion court. The court to enu- proceeded App.1981) then

265 court, we hold that he waived his object to the Court held that failure Thus, juror in motion for improper prospective complaint. exclusion of a revoking the error for the order capital rehearing granted murder case waived and purposes appeal. Judge Tom Davis is affirmed. appellant’s probation wrote: ROBERTS, State, ONION, P.J.,

“In Boulware v. 677 CLINTON S.W.2d TEAGUE, JJ., dissent. [(Tex.Cr.App.)], this Court stated following: “ ‘In view of the recent decision of the

Supreme Court of the United States guarantee may

that a constitutional

waived a defendant’s counsel for object improp such as to the

failure to grand jury er of a at the organization Dwayne WRIGHT, Appellant, Marshall trial level and our decisions above dis waiver, we that the fail cussed on hold object improper Texas, ure to to the exclusion Appellee. The STATE right of a venire member waives that Nos. 68535. appeal, cannot be considered on Texas, Appeals of State, (Tex. Court of Criminal Hovila v. S.W.2d [532 Panel No. 1. Cr.App.) ], and all cases insofar as are contrary hold overruled. See March State, also Tezeno v. [484 ” Rehearing On Oct. S.W.2d, (Tex.Cr.App.) at 939 ]... State, Bass v.