Baehr v. State, 64988

• Decision Date: 11 March 1981
• Docket Number: No. 64988,No. 2,64988,2
• Parties: Salvador Parra BAEHR, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 713

615 S.W.2d 713

Salvador Parra BAEHR, Appellant, v. The STATE of Texas, Appellee.

No. 64988.

Court of Criminal Appeals of Texas, Panel No. 2.

March 11, 1981.

Rehearing Denied May 27, 1981.

David S. Jeans and Darrell R. Windham, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and R. Bradford Stiles, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty., Austin, for the State.

DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

On the very day motion for rehearing was granted and the judgment of conviction was affirmed in Hernandez v. State, 599 S.W.2d 614 (Tex.Cr.App.1980) for want of an objection identifying in a pen packet what was objected to, ¹ the briefs for the parties in this cause were filed with the Clerk of this Court. Therein, under ground of error three presented by appellant and the reply made by the State, they vigorously joust over correctness of the law enunciated by a majority of the panel on original submission reversing the judgment. ² Happily, the issue that divided the En Banc Court in Hernandez v. State is not in this cause.

After the jury returned its verdict finding appellant guilty of committing, on or about April 11, 1979, the offense of unauthorized use of a motor vehicle, it was excused briefly and the trial judge entertained, heard and overruled objections to exhibits the State proposed to offer, as we set forth in the margin. ³ We are satisfied that "generally acknowledged policies of requiring specific objections," Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977), were accomplished by the colloquy and that it was at once obvious to the trial judge and the prosecuting attorney what ⁴ was being objected to and why. The question is whether admitting the material is error, and to that we now turn.

In its reply to ground of error three the State pleads, as it were, confession and avoidance, viz:

"In view of this court's recent (panel) decision in Hernandez v. State ... Appellant's Third Ground of Error appears to have merit. However, the Appellee would urge this court to either reconsider its holding because it interprets Article 37.07, Section 3(a) of the Texas Code of Criminal Procedure too narrowly, or limit its application in the instant case because no harm was suffered by the Appellant as a result of the admission into evidence of the State's Motion to Revoke Probation and other documents."

At the outset it must be noticed that, unlike the "regular" probation granted in Hernandez, what the trial court did here in its November 9, 1976 order was to defer adjudication of guilt pursuant to Article 42.12, § 3d and to place appellant on that special kind of probation. See McNew v. State, 608 S.W.2d 166 (Tex.Cr.App.1980); Williams v. State, 592 S.W.2d 931 (Tex.Cr.App.1979); McIntyre v. State, 587 S.W.2d 413 (Tex.Cr.App.1979). The State does not attach any particular significance to the different situations, whereas appellant contends that because of the nature of deferred adjudication the State's Exhibit 5 and the motions to revoke in State's Exhibit 6 did not go to prove a final conviction; he says only the sentence portion was admissible to show one. As a practical matter, of course, appellant is correct, ⁵ but the answer must be a legal one based on construction of applicable statutes, and in finding it the rationale of Hernandez is instructive.

Drawing on the teaching of Cross v. State, 586 S.W.2d 478 (Tex.Cr.App.1979), that revocation of "regular" probation "is not a conviction, suspended sentence, or probation, at which the judge, acting in his discretion, applies a preponderance of the evidence standard," Hernandez, supra, at 615, the panel opinion reached the same result in construing the terms of Article 37.07, § 3(a) and holding it is error to admit proof of the violation. Given that the procedure for rendering deferred adjudication is even a more informal administrative proceeding and subsequently determining to proceed with an adjudication of guilt is a matter for exercise of reviewable discretion by the trial court, Williams v. State, and other authorities cited ante, neither the order of deferral nor the motions to revoke are "findings of guilt beyond a reasonable doubt," Hernandez, supra, at 615.

Citing and quoting from Haliburton v. State, 578 S.W.2d 726, 729 ⁶ (Tex.Cr.App.1979), the State argues that the information reflected by its exhibits "should be presented to the jury in order for it to make an informed and intelligent decision on the question of punishment." Of course, the short answer to that is the Legislature has not authorized it; rather, by definition it has prohibited a revelation of that data pertaining to criminal proceedings which does not come with the meaning of "prior criminal record." Moreover, the argument assumes that the data will inform the jury and will enhance its intelligence, but an examination of the papers at issue suggests an invitation to speculate and conjecture the significance of their contents.

Thus, aside from the standard terms and conditions of "regular" probation provided by Article 42.12, § 6 in November 1976, which Haliburton v. State, supra, n. 5 at 729, points out are regularly considered by a jury in appropriate cases, the deferred adjudication order here imposed on appellant a curfew between 11:00 p. m. and 6:00 a. m. and prohibited him from operating a motor vehicle without prior permission, among other restrictions. Surely, reasonably inquisitive men and women on the jury would pause to wonder what it was about appellant that brought a judge to restrict exercise of such common liberties. As to the motions to revoke, though it may be conceded that an allegation of failure to report for three successive months is somewhat innocuous, the amended charge that thereafter appellant was "located in Haywood, Alameda County, California" when he was supposed to remain in El Paso County raises more serious, even sinister, implications to ponder. The legislative insistence that only a record of conviction for criminal conduct enlighten a punishing jury was intended and designed to withhold from it data and information which may portray in some minds that the accused before them is a "bad actor," a scofflaw generally. ⁷ While the original version of the statute was initially perceived in 1966 as accomplishing the "purpose and intent 'to take the blindfold off' of the jury that has the responsibility of assessing the punishment," Rojas v. State, supra, at 34, the definition of "prior criminal record" added in 1967 put it back on, partially at least.

We adhere to the rationale of Hernandez, and now hold that neither the deferred adjudication order nor the motion or amended motion to revoke probation is a "prior criminal record" within the meaning of Article 37.07, § 3(a), and admitting them in evidence over valid objection was reversible error.

The combined order revoking probation and imposing sentence, however, presents a more difficult problem especially considering that recitations in the first part incorrectly state the history of the case. Again, adjudication of guilt had been deferred, rather than considered and entered November 9, 1976; appellant was placed on § 3d "probation" which need not be formally revoked in order for the trial court to determine whether to proceed to an adjudication of guilt, rather than "regular" probation which must be; and the order simply does not adjudicate guilt or assess punishment and, therefore, that part is not a judgment within the meaning of Article 42.01, ⁸ V.A.C.C.P., Tyra v. State, 548 S.W.2d 912 (Tex.Cr.App.1977). Indeed, after stock findings ⁹ the operative language purports only to revoke probation: "It is therefore the ORDER of the Court that said adult probation of said Defendant be and hereby is revoked." Hernandez opines, "A finding of a violation of conditions is none of these things. It is not...