Marshall Dwayne WRIGHT, Appellant, v. The STATE of Texas, Appellee.
Nos. 68534, 68535.
Court of Criminal Appeals of Texas, Panel No. 1.
March 10, 1982.
On Rehearing Oct. 20, 1982.
641 S.W.2d 265
“In Boulware v. State, 542 S.W.2d 677 [(Tex.Cr.App.)], this Court stated the following:
” ‘In view of the recent decision of the Supreme Court of the United States that a constitutional guarantee may be waived by a defendant‘s counsel for the failure to object such as to the improper organization of a grand jury at the trial level and our decisions above discussed on waiver, we hold that the failure to object to the improper exclusion of a venire member waives that right and it cannot be considered on appeal, Hovila v. State, [532 S.W.2d 293 (Tex. Cr.App.)], and all cases insofar as they hold to the contrary are overruled. See also Tezeno v. State, [484 S.W.2d 374 (Tex.Cr.App.)]...’ 617 S.W.2d, at 939
See also Bass v. State, 622 S.W.2d 101 (Tex. Cr.App.1981).
In Darland v. State, 582 S.W.2d 452 (Tex. Cr.App.1979), the Court held that where appellant had not presented a motion to suppress to the trial court, nor had objected to the introduction of the evidence (a urine sample), appellant had waived his complaint of a Fourth Amendment breach on appeal. Also, Pizzalato v. State, 513 S.W.2d 566 (Tex.Cr.App.1974). And in Branch v. State, 477 S.W.2d 893 (Tex.Cr.App.1972), this Court held the contemporaneous objection rule applied in appeals from orders revoking probation. On appeal, Branch contended that marihuana introduced into evidence at his revocation hearing had been seized in violation of his constitutional rights protecting him from unlawful searches and seizures. The Court found that since no timely objection had been raised during the revocation hearing nothing was presented for review.
The same analysis is applicable to alleged due process violations. Thus, in the present case, since appellant failed to voice any due process objection to the procedures used by the trial court, we hold that he waived his complaint. Thus, the State‘s motion for rehearing is granted and the order revoking appellant‘s probation is affirmed.
ONION, P.J., and ROBERTS, CLINTON and TEAGUE, JJ., dissent.
Henry Wade, Dist. Atty. Ronald D. Hinds, Hugh Lucas, Chris Milner and Kathi Alyce Drew, Asst. Dist. Attys., Dallas, Robert Huttash, State‘s Atty., Austin, for the State.
Before ROBERTS, CLINTON and McCORMICK, JJ.
OPINION
CLINTON, Judge.
These are appeals from orders revoking probation. In a unique factual setting they present the recurring, troublesome question that arises when the trial court holds a hearing on the motion to revoke, finds that the probationer has violated a condition of probation, but does not immediately render a decision, purporting to take the matter under advisement, and subsequently orders revocation of probation ostensibly on the initial finding, though the record reflects intervening developments that were not ventilated by motion and hearing.
All agree that December 3, 1976, appellant pleaded guilty and was found guilty of committing three offenses: one burglary of a motor vehicle and two burglaries of habitations. The trial court assessed punishment and sentenced appellant to two years confinement in the Texas Department of Corrections in the motor vehicle burglary case. Punishment in each habitation burglary case was assessed at five years confinement, but imposition of sentence was suspended and appellant was placed on probation for five years under the usual terms and conditions.1 Appellant was released from confinement and began reporting to his probation officer in October 1977. He continued to report as directed, monthly, until he failed to report in April 1978.
First the probation officer in his written report and then the district attorney in his motion to revoke called to the attention of the court that single violation—failure to report during the month of April 1978.2 A hearing was held May 19, 1978.
Appellant pleaded true, the district attorney presented testimony to prove the violation, whereupon appellant himself testified:
“I just want to say, you know, if you just reconsider—you know, give me one more chance, it will never happen again.”
He went on to say he had a scheduled job interview and the money to pay his probation fee. In a colloquy with the trial judge appellant tried to excuse his failure to report—he lived twenty to thirty miles away and did not have a car but conceded that he could have reported if he had wanted to and put out the effort to; it ended with his plea for one more chance to “show my people and the Court that I just really want to get out there and make it,” because he did not want to go back to the penitentiary. After a few questions by the State, the court found the violation alleged. Then came the pronouncement:
“This hearing will be passed. I will consider whether or not to send you back to the penitentiary, based upon your violation, Mr. Wright.”
At this point the transcription of the notes of the court reporter relate: “(Whereupon, Court was adjourned, and on the 22nd day of June, 1978, the capias was withdrawn and the hearing passed generally by the Court...).”3
Chronologically in the record in one case is a capias bearing a date of issuance March 28, 1980.4 The sheriff‘s return shows that the capias came to hand the same date and was executed “Dallas County Jail;”5 the return is dated April 22, 1980.6 In both cases there are docket sheet entries beginning April 22, 1980, resetting by agreement to April 25 and then, on that date, to May 1, 1980—for hearing. The May 1 handwritten entry is: “withdraw capias;” bearing the same date is a form “Notice of Disposition of a Felony Case” with the number of the case in which capias had been issued March 28. The stated disposition is:
“Prob Viol Capias Withdrawn Capias Recalled.”7
There is no transcription of notes of the court reporter taken during any of these 1980 proceedings.
Substantially the same scenario was played out in early 1981. A capias was issued in both cases February 10, 1981—the last known address of appellant is said to be “Garland City Jail“—without any report of violation by the probation officer or motion to revoke by the State. Each came on the hand the same day and the return on both is stamped “IN JAIL.” They were filed stamped by the receiving district clerk February 13, 1981. There are no docket entries from May 1, 1980 until February 13, 1981.
The transcription to which we have earlier alluded recites “(... and on the 13th day of February, 1981, the hearing in [numbered causes] was resumed, Court reconvened, and the hearing in the hereinbefore set out cause nos. was concluded on said date...).”8
“THE COURT: You recall that on December the 3rd, 1976, you were convicted in this court of two cases of burglary of a habitation; assessed five years probated sentence in each case. Thereafter, on May the 19th, 1978, I had a hearing on a Motion to Revoke Probation in each of the cases; arraignment was waived; the pleading of true was entered in each of the cases to revoke the probation; evidence was presented; both sides closed all the evidence and I found, as a fact, that you had violated condition D of the probation terms, at that time. You recall that?
THE WITNESS: Yes.
THE COURT: And you recall having the hearing where you were found in violation and you admitted to not reporting, according to your instructions. Do you recall that?
THE WITNESS: Yes.
THE COURT: And you recall that I found you in violation of condition D of the probation terms, and passed the hearing to another date. At that point in time, I passed to another date, then I passed the hearing, generally, to consider the outcome, and now I‘m going to finalize each of these hearings, at this time, and bring them both to a conclusion.
The orders heretofore entered in each of these causes, suspending imposition of sentence in each case and granting probation are revoked. Is there any reason under the law why you should not be sentenced at this time, in accordance with the judgement, today, in each case?
THE WITNESS: No, Your Honor.”
Accordingly, the trial court pronounced sentence, and orally and in the written sentence allowed appellant his final credit from January 17, 1981.9
In Rogers v. State, 640 S.W.2d 248 (Tex.Cr.App., No. 67,334, delivered June 17, 1981) a Court Panel divided over whether the facts of that probation revocation tied the case on the Wester-Furrh10 line of authorities or the Stanfield-Feldman line.11 The issue was whether the trial judge continued a defendant on probation or continued the hearing, and from its interpretation of developments reflected in the record the majority held that the facts “most nearly resemble the situation and the decision in Furrh v. State, supra.” However, on rehearing we determined that the problem in this kind of a situation is “what process is due when the trial court finally takes away the probationer‘s liberty,” rather than whether initially the court continued probation or hearing. Rogers, supra, (Opinion on Rehearing, delivered March 3, 1982).
Appellant asserts:
“The trial court committed error in revoking appellant‘s probation thirty-two months after the entry of the order finding appellant in violation of the terms and conditions of probation thereby denying him of the due process of law as guaranteed by the Fourteenth Amendment of the Constitution of the United States.”
The State responds by pointing out that the Court has previously approved the procedure “whereby the trial court, upon making its finding that a violation has occurred, can continue the hearing, ‘keeping before it the violations already proven and permitting the careful consideration of mitigating and exacerbating circumstances, including the subsequent conduct of the probationer, be-
In Feldman and Stanfield the slim majority opinion in part justified the procedure it approved with the thought that the probationer “would consider himself to be ‘getting a break,‘” Feldman, at 722, and that trial court “gave appellant a break,” Stanfield, at 947, note 1. As to this notion appellant now says that “the ‘break’ given Appellant cost him the due process of law.” For reasons stated in Rogers v. State, supra, we agree.
In addition, it is observed that neither Feldman nor Stanfield nor any other decision upon which they rely—principally Traylor v. State, 561 S.W.2d 492 (Tex.Cr. App.1978)—addressed a ground of error that implicated the Due Process Clause of the
In a context of probation as well as parole revocation, there are at once a personal “liberty” interest and a societal interest in not having either revoked on erroneous information or on an erroneous evaluation of the need to revoke, given the breach of terms and conditions. Id., at 484, 92 S.Ct. at 2601; Scarpelli, supra, U.S. at 785, 93 S.Ct. at 1761.14 Society has a further interest that the probationer or parolee is afforded basic fairness: fair treatment in revocation proceedings will “enhance the chance of rehabilitation by avoiding reactions to arbitrariness.” Morrissey v. Brewer, supra, U.S. at 484, 92 S.Ct. at 2602. These interests largely determine “what process is due,” once due process applies to protecting against their loss. Id., at 481, 484, 92 S.Ct. at 2600, 2601; cf. Scarpelli, supra, U.S. at 786, 790, 93 S.Ct. at 1761, 1763. And it is to that determination we now turn.15
First to recapitulate, May 19, 1978, appellant admitted and the court found that he had committed the sole violation alleged in failing to report during the month of April 1978. The hearing was “passed,” appellant remained incarcerated until June 28, 1978, when the capias was withdrawn. Similarly in 1980 appellant was again held on a capias, confined from April 22, 1980 to May 1, 1980, when that capias was withdrawn or recalled. Then, January 17, 1981, appellant found himself detained in the Garland City Jail, to await the February 13, 1981 revocation proceeding.
Though the order revoking probation purports to be based on the thirty two month old finding of May 19, 1978 that appellant had once failed to report in April 1978, by quoting Feldman and citing Stanfield, the State does not pretend that is all there is to base the revocation. Given the issuance—over the signature of the trial judge—and
What Feldman approved has now been rejected by this Court En Banc “because of its plain disregard of the minimum requirements of due process,” Rogers, supra, at 254. When a probationer is returned to probation, here over a course of two years and eight months, probation may not be revoked without any determination of a new violation. As has been demonstrated, the very interests that require a revocation proceeding in the first place mandate that a record be made which includes “(f) a written statement by the factfinders as to the evidence relied on and reasons for revoking probation,” Morrissey v. Brewer, supra, as quoted by the Court in Whisenant v. State, supra, at 104.16 The right to appeal from a revocation order, granted expressly by
Accordingly, the ground of error is sustained and the orders revoking probation and imposing sentence are reversed, and the causes remanded.
Before the court en banc.
OPINION ON STATE‘S MOTION FOR REHEARING
McCORMICK, Judge.
These cases came before us on the State‘s motion for leave to file motion for rehearing. The record before us shows that on December 3, 1976, the appellant was found guilty of two cases of burglary of a habitation. Appellant received two probated five-year sentences. On May 18, 1978, the State filed a motion to revoke probation alleging that appellant had failed to report to the probation officer during the month of April, 1978. A hearing was held on the motion to revoke on May 19, 1978. Appellant pled true to the allegation. The trial court determined that appellant had violated the conditions of his probation as alleged. However, the hearing was passed while the court considered whether or not to send appellant to the penitentiary. On February 13, 1981, the hearing on the motion to revoke was reconvened and the trial court ordered appellant‘s probation revoked. Notice of appeal was given.
In a panel decision handed down on March 10, 1982, appellant‘s revocation of probation was reversed. The panel held that when the May 19, 1978 hearing was passed due process mandated that appellant‘s probation could not be revoked without a determination of a new violation.
We note, however, that appellant never raised any due process objection in the trial court. For the reasons set forth in Rogers v. State, 640 S.W.2d 248, the State‘s motion for rehearing is granted and the order of the trial court revoking the probation is affirmed.
ONION, P.J., and ROBERTS, CLINTON and TEAGUE, JJ., dissent.